Wright v Commissioner of Police

[2022] NSWCATAD 208

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Wright v Commissioner of Police [2022] NSWCATAD 208

Hearing dates:

28 April 2022

Date of orders:

23 June 2022

Decision date:

23 June 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

N Nicholls, Senior Member

Decision:

1. The Decision under review is set aside.

Catchwords:

ADMINISTRATIVE LAW – Firearms Act – revocation of licence

Legislation Cited:

Firearms Act 1996, Sections 3, 11, 12, 24, 75

Firearms Regulation 2017, Regulation 20

Category:

Principal judgment

Parties:

John Berend Wright (Applicant)
Commissioner of Police (Respondent)

Representation:

Counsel:
S J Stanton (Applicant)

Solicitors:
MacKenzie & Vardanega (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/00310818

REASONS FOR DECISION

INTRODUCTION.

1. On 1 November 2021 Mr. John Berend Wright (“the applicant”) made an application to this Tribunal, pursuant to section 75(1)(c) of the Firearms Act 1996 (“the Act”), seeking review of the decision made on 15 July 2021 by a delegate of the NSW Commissioner of Police (“the respondent”), (“the Commissioner”) to revoke the firearms licence (Category ABC) previously granted to him and as that decision was affirmed on internal review on 18 October 2021 by another delegate of the Commissioner.

BACKGROUND.

2. At the time of the internal review decision the applicant was 59 years old. At all relevant times he has been, and continues to be, a primary producer. He was, relevantly, first issued with a Category ABC firearms licence in April 2007 for reason of “Sport Target Shooting, Recreational Hunting/Vermin Control & Primary Production”. (RE 1 at page 25). This was re-issued on application in 2012 and 2017.

3. The various police reports before the Tribunal reveal that the applicant came to the attention of police as a result of a number of domestic incidents reported to them. There is no dispute that the licence was previously suspended for short periods.

THE CENTRAL ISSUE.

4. The central issue for consideration in this matter is whether, in light of the relevant statutory provisions and evidence before the Tribunal, the correct and preferable decision is that the applicant’s firearms licence should be revoked because the applicant is not a fit and proper person to hold a firearms licence, and the possession and use of firearms by the applicant is contrary to the public interest.

THE RELEVANT STATUTORY FRAMEWORK.

5. An underlying primary principle governing the operation of the Act is that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. (Section 3(1)(a) of the Act). The importance of the concept of public safety and the public interest is reflected in section 11(7) of the Act, which provides that the issue of a firearms licence may be refused if such issue is considered to be contrary to the public interest.

6. There is no dispute between the parties as to the meaning and extent of the concepts of the ‘public interest’, ‘public safety’ and ‘fit and proper person’. Nor is there any dispute as to the Commissioner’s power, acting reasonably, to cancel the applicant’s firearms licence. The dispute turned on differences in the view of the evidence put before the Tribunal and how those views informed the correct and preferable outcome of the application to the Tribunal in light of the statutory requirements.

THE DELEGATE’S DECISION.

7. A copy of the delegate’s decision is before the Tribunal. (RE 1 at pages 22-23). The delegate opines that ‘the information outlined above… poses a risk to public safety for’ the applicant to hold a firearms licence. No details are provided as to that information.

8. The delegate makes general reference to: ‘Information held by the NSW Police Force’ which is said to reveal ‘serious concerns regarding your domestic circumstances as you have come to police attention on several occasions in relation to domestic violence incidents’. The delegate’s decision record does not reveal any adequate consideration of that material, let alone analysis and the requisite intellectual engagement necessary in any administrative decision.

THE INTERNAL REVIEW.

9. The applicant subsequently sought internal review of that decision. A copy of the reviewer’s (‘adjudicator’) decision record, dated 18 October 2021, is before the Tribunal (RE 1 at pages 27-31). The decision sets out details of the domestic violence incidents. The reviewer relied on section 24(2)(d) of the Act for the proposition that a firearms licence may be revoked for any other reason not set out in the Act, as prescribed in the Firearm Regulations 2017 (‘the Regulations’). The reviewer referred to regulation 20 which provides that the Commissioner may revoke a firearm licence upon satisfaction that it is not in the public interest for the licensee to hold such a licence.

10. The reviewer agreed with the delegate’s decision. The reviewer placed ‘positive’ weight on the applicant’s lack of criminal history in the preceding 30 years and the applicant’s lengthy firearms history. Further the reviewer acknowledged that the applicant had not been convicted of any offence involving his partners, and that Interim Apprehended Violence Orders (‘IAVO’) in 2008 and 2020 were dismissed by the courts.

11. However the reason for affirming the delegate’s decision was the concern that the applicant’s domestic circumstances had been ‘continuously’ brought to police attention. The reports to the police were said to have been made over a number of years and involved ‘multiple people’. Given the reported concern of police for the safety of the applicant’s partner in December 2020 and that the domestic disputes would continue, the reviewer found that the applicant’s domestic situation was not ‘conducive’ with the safe possession and use of firearms.

THE EVIDENCE BEFORE THE TRIBUNAL.

12. The applicant relied on the following material:

1. Applicant’s Exhibit 1 (‘AE’). The statement of the applicant dated 17December 2021, with attachments, including the statement of Ms. Leanne Wright dated 9 January 2008 addressed to the Presiding Magistrate at the Griffith Court House at that time.

2. AE 2. The applicant’s further statement dated 19 April 2022.

3. AE 3. The statement of Nicole Maree McCudden dated 17 December 2021.

4. AE 4. The statement of Joseph Tyldesley dated 17 December 2021.

13. The respondent relied on the following material:

1. Respondent’s Exhibit 1 (‘RE’). A bundle of material documents lodged pursuant to section 58 of the Administrative Decisions Review Act 1997, including police reports and the statement to police by Mr. Tyldesley dated 12 January 2021.

2. RE 2. A bundle of supplementary material documents, including video and audio police body camera footage.

14. The applicant, Ms. McCudden and Mr. Tyldesley were cross-examined by the respondent. NSW Police Officer, Senior Constable (‘SC’) E. Parkinson, who was the author of some of the police reports was made available for cross-examination. The applicant elected, through his counsel, not to cross-examine her. Both parties filed written submissions.

15. As a general observation the following may be said about the evidence following cross-examination. The applicant’s version of relevant events, his various denials of what was put against him, was not essentially shaken on cross-examination.

16. The evidence of Ms. McCudden and Mr. Tyldesley raised questions as to its reliability in certain respects. The records created by SC Parkinson, and indeed all of the NSW Police reports, must be viewed, in the absence of anything put to the contrary in evidence, as an accurate record of what the various police officers observed, and what they were told. The reliability, or otherwise, of what they were told, and their perception of relevant events, remains for consideration below in light of all of the evidence.

THE PARTIES POSITIONS.

17. As set out above the relevant decision makers in this matter relied on a series of what were described as domestic violence incidents involving the applicant and various partners over a number of years. The respondent now asserts that the delegate and internal reviewer were correct in revoking the applicant’s firearms licence in the interests of public safety given the gravity, character and number of such events and how these inform the likelihood of future risk.

18. In essence the applicant relies on his view of the evidence to assert that these incidents, when properly understood, do not rise to such a level such that it can be said that the applicant is not a fit and proper person to hold a firearms licence and that the interests of public safety, even given their paramount importance, are addressed by the revocation of his firearms licence.

THE FACTUAL MATRIX: THE DOMESTIC SITUATIONS.

A. The Incidents of 2007-2014.

19. The internal reviewer noted that between 2007 and 2014 the applicant and his former wife, Ms. Leanne Wright, were involved in various domestic disputes said to be ‘in relation to on going custody issues’. (Pages 27-28 of RE 1). These were reported to NSW Police on six occasions. These reports are now before the Tribunal.

20. Of particular note is that in November 2007 in an argument with Ms. Wright the applicant is reported to have said “I am going to blow my brains out”. Police attended at his farm where they observed that he was very upset. He reported that he was in possession of firearms. He was taken to hospital for assessment. Police searched his gun safe and found an unregistered air rifle amongst other firearms. He was issued with a firearms suspension notice. The rifle was destroyed.

21. On 18 January 2008 the applicant was made the subject of an IAVO said to be for the protection of his former wife. This was later dismissed by the Court. On 2 April 2008 the suspension of his firearms licence was lifted following a mental health assessment report from a registered psychologist.

B. The Incident of 29 May 2008.

22. On 29 May 2008 the applicant, who is described in the police report as ‘the victim’ (RE 1 at page 41) attended at the local police station. He is reported to have stated that he had had an argument with his then girlfriend (Ms. C Benton) who had just discovered that on a recent trip to Sydney he had stayed with his former wife. The girlfriend pushed him out of the house. He discovered he had her purse. He attended the police station so as to return the purse to his girlfriend. She supported his version of the event to police. The police reported that they held no fears regarding this incident.

C. The Incident of 17 November 2012.

23. In November 2012 the applicant and Ms. McCudden had been living together for about 6 years. At that time Ms. McCudden’s daughter, from another relationship, had been living with them for about 4 years. In a subsequent report to police on 21 November 2012 Ms. McCudden’s daughter reported that on the evening of 17 November 2012 the applicant and her mother ‘consumed vast amounts of alcohol and argued’ in the kitchen.

24. This was said to have become ‘very heated’. She locked herself in her bedroom and called her older brother Mr. Tyldesley as she ‘became very scared of the yelling’. A short time later the yelling subsided, and the applicant left the house. Ms. McCudden and another person took the daughter to another location.

25. Ms. McCudden’s daughter was taken by her grandmother to the police station on 21 November 2012 where the grandmother reported that her granddaughter wished ‘to no longer live with her mother’. She left the police station in the care of her grandmother. The police further reported that the daughter did not want to live with her mother while her mother drank alcohol. The police took the view that she was better off with her grandmother while her mother ‘can seek help for her alcohol abuse’.

D. The Incident of 18 December 2020.

26. The relevant police record reports that in the evening of 18 December 2020 Ms. McCudden rang Mr. Tyldesley and told him that she and the applicant had had a fight and that he had hit her. She advised that she was walking to Mr. Tyldesley’s house which was a short distance away. He got into his car and drove towards his mother’s house. He approached the applicant who told him to ‘get off his property’. He left. His then girlfriend contacted police.

27. The police arrived a short time later. They were met by the applicant who told them he had had a fight with Ms. McCudden who had then left to walk around the farm. He had not wanted her to do so as he was concerned about the number of mosquitos. He agreed that he had consumed alcohol that evening. The police reported an intoxicating liquor smell emanating from him.

28. Ms. McCudden then approached the police. She told them that the applicant ‘gets cranky’ and ‘gets abusive’. The police reported that Ms. McCudden ‘was very hostile’, and refused to give them any details about what had occurred. She was reported to look very emotional, worried and frightened. She did say that the applicant ‘does mentally abuse her’ and ‘pushes her around’.

29. The police reported that Ms. McCudden at first stated that she was not afraid of the applicant, but later said ‘we are all going to be dead’ and ‘sometimes he really does scare me’. The police reported that she ‘seemed obviously concerned’ about the applicant once police left the farm. The police seized firearms that were at the property.

30. The police held concerns for her safety as it appeared both were ‘hostile towards each other after consuming alcohol’. They decided to apply for an Apprehended Violence Order (‘AVO’) for her protection. This was subsequently issued and served on the applicant.

31. On 12 January 2021 Mr. Tyldesley attended the police station and provided police with a signed statement. He also requested an AVO against the applicant. This was refused as the incident of concern had occurred over three weeks earlier. He confirmed that he had had no contact with the applicant in that time and that no threats were made to his personal safety’.

THE FACTUAL MATRIX: OTHER MATTERS.

A. The Applicant’s Traffic Record.

32. In his written submissions the respondent asks the Tribunal to take note that the applicant was prosecuted in 1992 with High range PCA and assaulting police. The police record of these charges, and their disposition was put before the Tribunal (RE 1 at page 33). The PCA charge resulted in a two year self-recognisance, a two year drivers licence disqualification and fines. The two assault police charges resulted in $200 fines for each.

33. The delegate made no reference, even in general terms, to these charges. The internal reviewer did refer to them. But placed positive weight on the applicant’s lack of criminal history in the past 30 years.

34. For the sake of completeness I note that in 1979, when the applicant was 16 years of age he was charged with the illegal use of a motor vehicle. He was also convicted of a Middle range PCA charge in 1988. RE 1 at page 32). There is no reference to these matters by the delegate, the internal reviewer or in the respondent’s submissions.

B. The Body Cam Footage.

35. As set out above the respondent has asked the Tribunal to view and listen to police body camera footage of that part of the incident of 18 December 2020 after police arrived at the farm. There are two such videos. One is taken from the body camera worn by SC Parkinson. It is not clear who wore the other camera that produced the second video.

CONSIDERATION.

36. There can be no doubt as to the statutory primacy of the principles of the public interest and public safety in relation to the possession and use of firearms. This must take precedence over the privilege of holding a firearms licence. The parties before the Tribunal agree on this. Nor is there any dispute that domestic or family violence is an overwhelmingly serious issue in Australia. The possession of firearms, or for that matter a number of other implements with deadly potential, in domestic situations which have had in the past, or have the potential to involve violence, must be refused.

37. However it does not necessarily follow that every report to police of a domestic dispute, or even a series of reports, automatically renders one party to the dispute not to be a fit and proper person to hold a firearms licence and that the public interest would be served in denying them a firearms licence. The answer to the central question of whether the applicant’s possession of a firearms licence poses virtually no risk to public safety is to be answered with a proper, realistic and reasonable consideration of the evidence put before the Tribunal by the parties. This requires a proper weighing of the evidence as presented. It is not answered by some formulaic application of the existence of reports to police as rendering a negative result for the applicant.

38. In the current case the approach of the delegate, and to a lesser extent the internal reviewer, is in essence to simply equate the reports of domestic disputes to police to providing, of themselves, the probative basis to revoke the applicant’s firearms licence. There is no evidence that the delegate intellectually engaged with the generally described material on which they said they relied. While the internal reviewer sought to impose some balance in the relevant analysis, this again did not involve a proper examination of the matters raised in the reports.

39. Further, and contrary to the statement in the internal reviewer’s decision record the consideration that was given to the material provided on the applicant’s behalf, was not adequate. For example, the reviewer proceeded on the basis that what the various police reports recorded as having been said to police was an accurate account of what had occurred in each of the relevant incidents outlined above. There is nothing to suggest that the police made any error in recording what they were told. But the truth, accuracy, or otherwise of what they were told remains to be assessed in light of all of the evidence now before the Tribunal.

40. The disposition of the central issue in this matter is to be found in an examination of all the relevant evidence in relation to each of the incidents now relied upon by the respondent and the cumulative effect of the totality of the findings arising from that examination.

41. In light of the respondent’s submissions in support of the proposition that the applicant’s firearms licence should be revoked the following matters arise for particular consideration. (See RS 1 at [32], and the oral submissions before the Tribunal).

42. One, in the incident of 22 November 2007 the applicant is reported as having told his former wife, that he would ‘blow [his] brains out’. In his statement to the Tribunal of 17 December 2021 (AE1) the applicant agrees that he said words to that effect to his former wife in a telephone conversation. This was not a threat directed to physically harming his former wife or indeed anyone else other than himself. Nonetheless such threats of self-harm are of concern both of themselves and as an indication of a propensity to violence in the future.

43. In his evidence to the Tribunal the applicant described this as a ‘heat of the moment’ comment, a ‘figure of speech’, and that no harm was directed to, or intended for, his former wife or to himself. Further, given what is otherwise recorded in various police reports at that time and following, the applicant’s impugned statement was part of an ongoing dispute between the applicant and his former wife concerning custody of, and access to, their children.

44. As set out above the police gave the applicant the opportunity to obtain a psychological assessment soon after this incident. The registered psychologist’s report is before the Tribunal. It is dated 12 February 2008. (Attachment ‘B’ to the applicant’s statement, AE 1). The psychologist’s clinical opinion was that the applicant ‘…presented as rational in thought and reasoning’ and that he presented ‘… as a stable introverted man…’. Importantly and relevantly the report stated that ‘…in my opinion he is not a dangerous man to himself or others.’

36. Of itself, and in all the circumstances presented, the statement made by the applicant does not render him as not being a fit and proper person to hold a firearms licence. Given the psychologist’s opinion, which remained unchallenged before the Tribunal, it cannot be said that the applicant’s statement, of itself, provides a basis to say that he is a danger to public safety.

37. Two, in his submissions the respondent seeks to rely on what is said to be an inconsistency in the applicant’s statements concerning an unregistered air rifle which was seized by police when they attended at the applicant’s farm following the applicant’s former wife’s report of his statement.

38. The police report at that time records that the applicant told police that the air rifle was his and that he believed that it was registered. In his statement to the Tribunal the applicant stated that he found the air rifle in a locker in an old farm shed and that it was only in his possession for a few weeks. (AE 1 at [15]). The respondent also points to the applicant’s statement that he made the air rifle available to the police, yet the police report states that the police located the firearm when they attended at the farm. Before the Tribunal the applicant’s evidence was that he took responsibility for the air rifle because he had found it on his mother’s farm. He presumed it had been registered.

39. It must be said that the respondent’s submission in this regard is selective in its reliance on only part of the evidence before the Tribunal. The same police report relied on now by the respondent also states that the police proposed to take no further action against the applicant beyond the seizure of the firearms and the destruction of the air rifle. (RE 1 at page 39).

40. The reasons for this are stated to be: ‘WRIGHT handed the firearm over to police thinking it was registered. No other offences have been detected. WRIGHT’S firearms licence has been suspended due to comments he made. The air rifle has been unconditionally surrendered to be destroyed. To proceed with this matter would not be in the public interest.’ The suspension of the licence due to the applicant’s comments predated the psychologist’s report.

41. There is no inconsistency of substance in the applicant’s statements in relation to this incident, particularly in light of the applicant’s evidence before the Tribunal which provided a reasonable and satisfactory explanation for the applicant’s various statements.

42. In relation to ownership of the air rifle and its non-registration, the applicant’s evidence was that he found the air rifle on the property where he lived which was, or had been, his mother’s farm. He found the air rifle in a shed and assumed it had been registered by a former manager because it was not a very old gun. Given that the air rifle was then in his possession he took responsibility for it when asked by the police.

43. Importantly, at the relevant time, the applicant cooperated with police and, as recorded in the police report, he gave the police the keys to the gun safe where they located the air rifle. There was nothing in the respondent’s cross examination of the applicant to cast doubt on his explanation.

44. In any event whether the applicant knew in 2007 that the air rifle was not registered was not a matter of concern to the police. At that time the police report that the applicant told them the gun was registered, they found out it was not, yet still proceeded to find that it was not in the public interest to take any further action against the applicant.

45. As to the claimed inconsistency between whether the police located and seized the firearms or the applicant made them available, that ‘inconsistency’ arises from the police report itself. The applicant did not attempt to conceal his possession of the firearms. As set out above the police report states that the applicant’s former wife told police of the existence of the firearms, the applicant cooperated with police by giving them the key to the gun safe so that the guns ‘…could be seized.’ (RE 1 at page 38).

46. At its highest, the respondent’s reliance on this seeming ‘inconsistency’ is one of semantics and not substance. In all, the air rifle matter does not reveal that the applicant is not a fit and proper person so as to hold a firearms licence.

47. Three, the respondent relies on a statement to police on 2 July 2009 by the applicant’s former wife where she set out various instances of claimed violent behaviour by the applicant. (RE 2 pages 6-8). In this statement the applicant’s former wife states that she and the applicant were in a relationship for about 18 years. They separated in September 2007. Their three children live with her and have little contact with the applicant.

48. She claimed that she suffered verbal abuse from the applicant and became frightened of him. During the last year of their marriage the applicant’s behaviour towards her worsened and she became frightened of him. On one occasion he assaulted her, pushed her over and then locked her out of the house. It was winter and she was wearing a nighty, so she was cold. On another occasion he threw a kitchen table at her.

49. She further states that the applicant asked her to write a letter stating that he had not been violent towards her or assaulted her. She claimed that the applicant was making payments toward her car loan as she could not afford to do so. She wrote the letter requested by the applicant because she was scared that her would stop paying for her car.

50. That letter is in evidence before the Tribunal. (AE 1 Annexure ‘A’). It is dated 9 January 2008. The applicant’s former wife states that she has moved to Sydney and has employment locally. The move is permanent. Given the great distance the applicant has little contact with her or the children. (The applicant lived on a property near Yenda NSW, about 600 kms away). She stated that in telephone conversations he has made no threats and only wishes to speak to the children. She states that he is no longer any threat to her.

51. The applicant’s evidence is that in 2007 his former wife sought an AVO against him at the instigation of her then boyfriend with whom she was living in Sydney. The AVO was not served on him, and the matter did not proceed to a Court hearing because his former wife withdrew the matter. Before the Tribunal the applicant gave evidence that he and his former wife had had arguments but denied that he had verbally abused her. He agreed that he had put his wife out of the house for 20 minutes, but this was because she was ‘out of control’ and hysterical. He felt this was the best way to calm her down. He denied throwing the kitchen table at her, but stated that he did ‘flip it over’ during an argument.

52. It appears that the former wife’s statement of 2 July 2009 was immediately prompted by text messages sent to her by the applicant concerning his access to the children. These messages are reported at [8] of her statement. It must be said that on any reasonable reading of what the applicant is reported to have said it is difficult to see why, of themselves, the comments would cause the applicant’s former wife to fear that the applicant would harm her or the children. (See further below).

53. By July 2009 the applicant and his former wife had lived apart, at some great distance for about two years. (600 kms, see RE 1 at page 58). As is reported in the handwritten record of his interview with police on 14 July 2009 (RE2 at pages 9-11) the applicant had been paying more in child support than he was required to pay. This was not challenged in cross-examination before the Tribunal. Further, the applicant had continued to make payments for his former wife’s car. This was at a time when on her own statements she was employed, and according to the applicant was in a relationship with someone else.

54. The former wife’s statement reports that in one message the applicant stated ‘…don’t make this get messy…’. Before the Tribunal the applicant stated in cross examination that he could not remember whether the messages as reported were accurate. However, he did explain that the reference to ‘messy’ was that he did not want the differences about access to the children to end up in Court. On balance I accept the applicant’s evidence in this regard. He and his former wife were engaged in family law proceedings following the breakdown of their relationship.

55. On 19 August 2009 the applicant’s former wife reported to police that she had received two text messages from the applicant’s phone. (RE 1 at pages 64- 67). The first message consisted of a series of ‘w’s’. The second message contained only the word ‘demon’. Contrary to other assertions generally made by her, the applicant’s wife reported to police that while there had been tension between them in the past, she and the applicant were trying to be civil towards each other for the sake of their children. She is reported to have said that she wanted police to speak to the applicant about the ‘unwanted’ text messages.

56. The police report that they spoke to the applicant who was apologetic. He said that the messages were sent ‘in the heat of the moment’. He told police it would not happen again. The police reported this to the applicant’s former wife who requested that no further action be taken. The police report that she was happy that they had spoken to the applicant.

57. The applicant’s reported statements contain no threat of physical harm by him towards his former wife. In context of all the evidence it is clear that the applicant and his former wife could not agree on his access to the children and were engaged in family law proceedings. From his former wife’s perspective, it can be seen that she thought he was being difficult. But that can equally be said of her.

58. The applicant’s former wife did not give evidence before the Tribunal. In this light her statements must speak for themselves and can only be properly understood in light of the other evidence before the Tribunal.

59. As set out above the applicant’s former wife gave a statement to police on 2 July 2009 following the receipt of text messages where she claimed to be frightened of the applicant. The relevant police report (RE 1 at page 51) states that the text messages were ‘not threatening’ and that no offences were detected. The police saw the various incidents between the applicant and his former wife as arising from ‘a constant battle in relation to contact with the children’. (RE 1 at page 53).

60. In relation to the events of 2007 the police report states that a protection order was issued in 2007 but it was subsequently dismissed. The police report that the applicant’s former wife told them that she did not pursue the protection order which was dismissed by the Court because she had moved to Pitt Town and ‘…this seemed to resolve the problems between the two parties…’. (RE 1 at page 53).

61. Before the Tribunal the respondent placed reliance on the applicant’s former wife’s statement to police of 2 July 2009. In relation to this matter the police identified ‘a number of discrepencies’ (sic: discrepancies) in the former wife’s ‘version of events’. (RE 1 at page 54). Nonetheless given her statement the police proceeded to investigate.

62. The police found that: ‘It appears on all counts that the VIC WRIGHT [the applicant’s former wife] is attempting to use police to deal with the dispute over contact with children. The VIC WRIGHT has made some allegations of past verbal abuse BUT in her statement the most recent contact with the POI WRIGHT [the applicant] has been in relation to contact with the children and the only type of threat that is mentioned in the statement from the VIC WRIGHT is that the POI WRIGHT will stop paying for her car.’

63. Importantly the police found that: ‘At this stage it is the opinion of investigating police that this complaint is frivolous, bordering on vexatious.’ (RE 1 at page 56). Specifically in relation to the text messages the police found: ’The text messages are not deemed to be threatening towards the Victim’s safety in any way nor are they abusive.’

64. In relation to the applicant the police found: ‘The POI appeared to be very reasonable to speak to. He admits some comments in the text message were intended to ‘rustle her feathers’ however police believe the POI does not have intentions to cause any type of physical harm to the victim.’

65. In relation to the applicant’s former wife the police report stated: ‘Investigating police genuinely believe that the VIC is attempting to use police to make an AVO application in lieu of parenting orders.’ (RE 1 at page 57). The police told the applicant’s former wife that the police would not be seeking an order against the applicant. The report then records that: ‘It was at this stage that the VIC decided to inform police that the POI had contacted her by telephone and abuse her verbally two weeks prior to reporting this incident to police. When questioned as to why the police were not informed of this previously the VIC did not have an answer.’ (RE 1 at page 58).

66. The police view of this matter is made clear in the following: (RE 1 at pages 58-59):

A. ‘The VIC seems more concerned and bitter about not having any help with bringing up the children than an actual fear for her safety from the POI.’

B. ‘The VIC seems concerned about the POI ceasing her car payments and reducing her child maintenance payments.”

C. ‘Police do not hold fears for the safety of the VIC from the POI.’

D. ‘It is the opinion of investigating police that the allegations made by the VIC are vexatious and have been made as a result of the POIs threat to reduce her child maintenance payments.’

E. ‘If an AVO application were to be made it is the opinion of investigating police that the court would find the application frivolous and unjustified.’

F. ‘There have been no threats, there will be no AVO application and seizure of the POIs firearms licence and firearms as a result of this matter would be unjustified and would cause him significant hardship in his occupation as a self employed farmer.’

76. The report of 19 August 2009 occurred after the making of this police report. However as is set out in that police report: ‘The VIC was then contacted and informed of the conversation between police and the POI. The VIC requested no further action to be taken and was happy police spoke with the POI.’

77. On the evidence before the Tribunal the applicant did make certain statements which could give rise to a concern by his former wife that he may cease making payments for her car and possibly reduce maintenance payments for the children. However, the former wife’s statement on which the respondent now seeks to rely does not, in light of all the evidence before the Tribunal, provide a probative basis to show that the applicant is not a fit and proper person to hold a firearms licence or that public safety would be put at risk.

78. As the police report stated the dispute between the parties was driven by parenting and car payment issues where on occasion the applicant’s former wife was prepared to make frivolous and unjustified complaints about the applicant to secure her parenting and financial objectives. None of the statements attributed to the applicant give rise, as was found by the police, to any concern about the applicant’s risk to public safety.

79. Four, the respondent relies on an incident on 26 June 2014. The relevant police report is in evidence before the Tribunal. (RE 1 at pages 75-77). At that time the applicant’s former wife told police that the applicant came to her house to ask that he have contact with the children. He took two children to dinner. When he returned them, he ‘invited himself into the residence’ and would not leave when asked to do so. He eventually left a ‘short time later.’ He returned the next day and ‘let himself in to see the children.’ She did not invite him to enter but did not want to argue in front of the children. The applicant left and returned to his farm at Yenda.

80. The applicant had purchased a mobile phone for one of the children so as to facilitate future contact. He rang this child on the next day. The applicant’s former wife was unhappy with this phone call and rang the applicant. A verbal argument ensued about the mobile phone and access to the children. She reported this to police. The police report states that she said she only wanted to report this matter and feared that the applicant would come to her house again. The police recorded that they had ‘no current fears’, in context, regarding the applicant’s former wife or the children.

81. Given that outcome and the circumstances that led to the report to police it is difficult to see how this incident assists the respondent’s case. The applicant’s evidence, which was not challenged, was that his former wife ‘smashed the phone with a hammer.’ Further, that he left her house as soon as he was asked to leave. Of itself the incident is another example of the ongoing family dispute about access to the children. There is nothing in the evidence to say that anyone was at risk of harm. The police held no such fears. In context, this appears to be another instance of the applicant’s former wife using the police to achieve her objectives in relation to the children.

82. In all therefore, I find that the various disputes and complaints to police concerning the applicant and his former wife do not reveal that the applicant is not a fit and proper person to hold a firearms licence or that if he did have such a licence he would pose a risk to public safety.

83. Five, the applicant and Ms. Nicole McCudden have been in a de facto relationship for about 13 years. (AE 3 at [3]). The respondent now relies on a number of incidents that occurred during these years. Both had children with other partners. They had no children together.

84. On 21 November 2012 the applicant and Ms. McCudden were involved in a heated argument. Ms. McCudden’s daughter was so scared that she moved to live with her grandmother. The police report of this event is in evidence before the Tribunal. (RE 1 at pages 72-74).

85. The police report reveals that both the applicant and Ms. McCudden were affected by alcohol at the time of this incident. The daughter and her grandmother reported to police that the daughter did not want to live in that household. For current purposes the report makes clear that the daughter’s fear arose from her mother’s drinking. The police conclusion was that the daughter should live with her grandmother until: ‘…MCCUDDEN can seek help for her alcohol abuse.’

86. There is nothing in the evidence to show that the applicant made, or posed, any threat to the daughter. If anything, as reported, the complaint was aimed at Ms. McCudden. This incident does not assist the respondent’s case.

87. Before the Tribunal the respondent emphasised the events of an incident that occurred on 18 December 2020. The relevant evidence before the Tribunal is at RE 1 (pages 84-121), RE 2 (the police body camera videos), parts of AE 1, AE 2, AE 3, AE 4, and oral evidence given by the applicant, Ms. McCudden and her son Mr. Joseph Tyldesley. The relevant factual matrix is set out above at [26]-[31].

88. The respondent’s submission is that the police body videos reveal that Ms. McCudden had a real fear of the applicant and a real apprehension as to what would occur once the police left the farm. The police videos record what occurred at the farm after police arrived. It is clear that the police had been told that someone had been assaulted.

89. The police videos speak for themselves. They show that Ms. McCudden appeared unwilling to answer the questions from police as to what had occurred. She appeared reticent to speak when the applicant was nearby and could hear her. At times she spoke in whispers. She could not readily remember the date of her son’s birthday. She confirmed that she had been drinking.

90. Her account to police was that the applicant and her son had had an argument and that the applicant had told him to leave the property. When asked if anyone had been hurt, she replied that no-one had been hurt. In context this can be understood as being that no one was physically assaulted. This is because she otherwise told police that the applicant had been abusive. He told her to ‘get off the property’ and that she was a ‘piece of shit’. She also told police that they have frequent arguments, and that the applicant is sometimes physical by pushing her. She then said that this was not ‘regular’.

76. Her greatest concern appeared to be that the police take no action because the applicant would be ‘more cranky when you leave’ and that his ‘blood will run thick’. She told police that when they leave ‘I will have to cop it’ and she would be ‘kicked out’ of the property which was owned by the applicant. As to the applicant he appeared cooperative with police. There was nothing in the applicant’s conduct while being filmed that would give rise to any relevant concern.

77. I agree that based on Ms. McCudden’s demeanour, her apparent reticence to speak, her ‘hints’ about what she feared and what she explicitly told police, that on one view SC Parkinson reasonably felt that it was appropriate to seize the firearms and remove the applicant so that an interim AVO could be prepared. However, Ms. McCudden’s demeanour, what she said and what she hinted to police must be viewed in light of other evidence before the Tribunal.

78. In his statement before the Tribunal the applicant stated that Ms. McCudden was ‘very drunk’ and ‘could not look after herself.’ She wanted to drive a farm vehicle, which had spray equipment in the back, around the property. He did not want her to do this because of her state of ‘inebriation’. As she tried to enter the vehicle, he pushed her away. She then proceeded to walk around a 15 hectare paddock and when she was halfway around he went to go to pick her up because he thought that she would have ‘cooled down’ by then.

79. At that time he saw Mr. Tyldesley approaching in his farm ute. He drove in front of him and asked him what he was doing. He says that Mr. Tyldesley told him that his mother had phoned him and told him that the applicant had hit her. The applicant states that he told Mr. Tyldesley to ‘piss off home and you have two weeks to leave the farm.’ He explained that this was prompted by Mr. Tyldesley’s state of poor mental health, for which he was on medication, which led to him not wanting him on the farm while he was in ‘a very fragile state.’

80. In cross examination before the Tribunal the applicant was emphatic that he had not hit Ms. McCudden before the police arrived. He confirmed the events as set out in his statement. He could not remember whether he had spoken to Mr. Tyldesley earlier that day. He knew that his mother had sent him a text but did not know of its contents. However, he came to the conclusion that he had come to pick up his mother. He had been drinking that day but was not intoxicated.

81. In light of his evidence the applicant was asked to explain why in the police body vision Ms.McCudden appeared scared of him. His answer was that she appeared embarrassed and not scared. He confirmed that he had not hurt Ms. McCudden that day. He had no explanation for what she told police.

82. In her statement Ms. McCudden described the relationship with the applicant as ‘loving, close and very satisfying’ and ‘very fulsome, robust and at times boisterous’. She said that they were not scared of each other and were not shy when it came to expressing their feelings.

83. She stated that on the day of the incident involving police she was ‘somewhat intoxicated’. She had been drinking when the applicant returned home at about 6.30pm. he had been drinking at a neighbour’s house. They continued to drink together.

84. They were having what she described as a ‘robust discussion’ when she decided to go for a drive on the property. The applicant did not want her to do this because of her drinking. She insisted. The ‘discussion became a little more robust.’ He ‘physically picked’ her up to stop her. In what she described as a ’pique by way of temper’ she rang her son and told him they had had a ‘blue’ and asked him to come and get her.

85. She did tell her son that the applicant had ‘hit’ her, but now says that this was a lie designed ‘to exaggerate my position.’ She believed that the applicant told her son to leave when he subsequently came to pick her up because there had been no violence and what had occurred was between two adults and none of his business.

86. She disputed the police officer’s report [SC Parkinson] that she was overheard telling her daughter on the phone when police arrived, that the applicant ‘gets a little bit abusive’. She confirmed that she said he gets ‘cranky’. [It must be said that the audio of the police video cam is not clear at this point.]

87. In her report SC Parkinson states that ‘During my conversations with the Victim, she continued to whisper to me so WRIGHT could not hear what she was saying. She appeared worried and scared of WRIGHT. Stating things like “we’re all dead”, I asked what was going to happen once we leave and she stated again, “we’re all dead.” The Victim also stated, “he is going to be more cranky when you leave”.’ (RE 1 at page 103).

88. In her statement of 17 December 2021 Ms. McCudden states ‘I completely deny any such impression was given by me to her, and when she said, that I said words to the effect ”we’re all dead”, not once but twice, and that “he‘s going to be more cranky when you leave”, I do say that I said only once “we’re all dead”, and I did say that he would be cranky with words to that effect simply because they took his firearms.’ (AE 3 at [38]).

89. It must be said that Ms. McCudden was in some respects not a satisfactory witness before the Tribunal. For example, in her written statement she said that she had lied to her son when she told him that the applicant had hit her. Yet before the Tribunal she initially said that she had not told him this, but subsequently said that she could not remember saying that to her son. Finally, her evidence was that she did not say anything about the applicant hitting her. In short, her evidence was inconsistent, and she was unable to give a satisfactory explanation for this.

90. In his initial statement to police made on 12 January 2021 Mr. Tyldesley stated that his mother had told him on the phone that the applicant had hit her. He told her he would come and get her to which she was said the have replied that the applicant was ‘very violent at the moment’ and not to go near him. When he arrived at the farm in his vehicle the applicant drove at him at speed which caused him to engage his emergency handbrake. The applicant then got out of his vehicle and told him forcefully to get off his property. He was scared because he thought that the applicant might have a gun in his car and because the applicant was so angry. He drove off.

91. When he got home he told his girlfriend at the time to call the police. His mother rang him later and said: ‘How dare you call the police. You’ve caused this. I’m a tough woman and I can handle this.’ The police then called him and told him that the applicant had been taken away and that he could go and check on his mother. When he arrived there with his girlfriend he found that his mother: ‘…was super drunk and was leaning and stumbling against everything.’ His mother accused him of having caused the police attendance. He left after his mother and his girlfriend had ‘a screaming match.’

92. In his statement to the Tribunal (AE 4) Mr. Tyldesley states that his mother did call him on the night in question and told him that she had had an argument with the applicant. He could tell from her voice that she was drunk. He states that his mother did not tell him that the applicant had hit her and that that was a suggestion from the police.

93. He did go to the property to enquire because he regarded his mother’s relationship with the applicant to be ‘tempestuous.’ However, he had never known the applicant to have done anything to his mother ‘…that would cause her to fear violence or that she would be the subject of harm either mentally or physically from him.’ A feature of their relationship is their ‘vibrant exchange’ with each other. Further, it was his girlfriend who had initiated the call to police. His mother protested that the police should not have been called and she had no fears for her safety.

94. However, and critically, he now says that aspects of what he put in his initial statement to police were recorded at the suggestion and encouragement of police. For example, the reference to his being scared because he thought that the applicant may have a gun in his vehicle: ‘was without foundation whatsoever and was suggested to me by the police, which I adopted and put in my statement.’ He states there was never any suggestion on his part that the applicant had a gun in his vehicle.

95. He regrets: ‘…that I allowed myself to be manipulated by the police to make allegations against [the applicant] which were unfounded, especially with respect to firearms, and I have no reason to believe that he had a firearm in the utility at the time he told me to leave the property.’ He states that the police officer, SC Parkinson, asked him about whether he had fears concerning the applicant’s use of firearms and he says that he told her that he had no such fears. He says that he: ‘…certainly did not indicate that he had a firearm in his ute … but responded to her suggestion that that might possibly have occurred. I regret that I signed the statement knowing I should not have done so because it was not true.’

96. Mr. Tyldesley’s explanation is that he: ‘…believed Senior Constable Parkinson, But I now realise, as I did shortly after I made the statement, that I had done the wrong thing. I tried to have the statement withdrawn…’ He subsequently attended court to give evidence but intended to not adopt the statement he had signed ‘…as it would not be the truth.’ The AVO was subsequently ‘dismissed and withdrawn.’

97. Mr. Tyldesley states that he subsequently returned to live at the property after having separated from his girlfriend and ‘…I have seen the relationship between John Wright and my mother continues, as is was in the past, to be open and vibrant but in no way attended by any violence by John Wright to my mother’.

98. Before the Tribunal Mr. Tyldesley’s evidence, relevantly and variously, was that the applicant was ‘cranky’ not violent when he arrived, and he did not see any gun in the applicant’s vehicle. His girlfriend had overheard his conversation with his mother and that is why the police were called. He contacted his sister [who was in Queensland] because he was concerned about his mother’s safety and welfare.

99. His explanation for the inconsistencies in his two statements, further to that proffered in his second statement, was that at the time of the incident he was severely depressed and on medication. An attachment to his statement to the Tribunal sets out the medication he was taking at the time of the incident and medical reports concerning ‘future psychology management’.

100. I accept the respondent’s submission that it is common in ‘many domestic matters’ involving abuse that the victim would subsequently choose not to assist police in pursuing action against the perpetrator. At least by inference the respondent seeks to draw an analogy between such action in relation to the police as providing an explanation for Ms.McCudden’s changed evidence to the Tribunal. But the application of any such common understanding arising generally from such matters to an individual case before the Tribunal cannot be made rigidly and inflexibly. Ultimately the Tribunal can only proceed on the evidence presented in that case.

101. As set out above the evidence in relation to the incident of 18 December 2020 is not clear in certain respects, contains inconsistencies and is questionable in other aspects. Taking this into account I make the following findings.

102. The applicant’s evidence at all times was clear and emphatic in his denial and rejection of the propositions that he physically attacked Ms. McCudden, was violent towards her or meant her any harm. His version of events was that Ms.McCudden’s extreme intoxication posed a risk to her safety and he acted in that light.

103. Ms. McCudden’s evidence was not helpful given the inconsistencies and lack of clarity in some respects. However, what was clear is that in her most recent statement to the Tribunal and her evidence to the Tribunal, she was emphatic in her denial that the applicant had abused her physically. She was clear that she had been drinking and was intoxicated. A point that was supported by her son who observed her to be in an extreme state of intoxication. This was even after the police had left the property with the applicant.

104. In short, her most recent evidence, consistent with some of her statements at the time of the incident, was that the incident did not require the involvement of police as it was just another indicator of the ‘fulsome, robust and at times boisterous relationship’ that she had with the applicant. This again was supported by her son who had lived with them both before the incident of 18 December 2020 and after.

105. The evidence of Mr. Tyldesley was also troubling in some respects as set out above. But he again was clear that he had never seen or known of the applicant to have physically abused his mother. Whatever had occurred on the night of the incident involving him and the applicant he subsequently returned to live on the farm until he left for Melbourne some weeks before the hearing before the Tribunal.

106. Plainly the body cam video requires some special attention. I note it was a major plank of the respondent’s case before the Tribunal. The respondent submits that the video shows that Ms. McCudden had a real fear of the applicant and of what would occur after the police left the property. (See [87]-[91] above). The applicant submits that Ms. McCudden’s conduct was not that of a fearful person, but rather one who was embarrassed.

107. As set out above it can be said on one view that it was not unreasonable of SC Parkinson to take the view that Ms. McCudden’s demeanour, conduct and words indicated fear of the applicant. SC Parkinson was not cross examined by the applicant despite opportunity to do so. On that basis there is no reason to challenge the genuineness of her perception as to this conduct.

108. However, as was clear on the body cam video, SC Parkinson came on to the property with having been told that someone had been assaulted. That, the short telephone discussion with Ms. McCudden’s daughter, and the conduct of Ms. McCudden, led her to quickly form the view that Ms. McCudden was scared of the applicant and in danger of harm from him. I note however that was after Ms. McCudden’s daughter had told her that the argument had been between the applicant and Mr. Tyldesley.

109. Three police officers attended at the farm on that evening: SC Parkinson, SC Neale and Constable Kelly. (RE 1, page 102 at [4]). The first body cam video in evidence before the Tribunal was that of SC Parkinson. It is not entirely clear as to whose body cam recorded the second video. But it was not SC Parkinson. It is fair to say that SC Neale, who dealt with the applicant, did not appear to initially share the view of events taken by SC Parkinson. Even after the decision had been taken to seize the firearms, he told both the applicant and Ms. McCudden that that was only a temporary measure. Although it is the case that he had not spoken to Ms. McCudden.

110. However, in the same light, SC Parkinson did not have any conversation of substance with the applicant before, in effect, making the decision that the applicant should be taken to the police station for the purpose of arranging an interim AVO. There is nothing on the body cam videos, or anywhere else in the evidence before the Tribunal, to show that the applicant was other than cooperative with the police. He willingly assisted in locating the appropriate gun cases and in his accompanying police to the station. The only sign of mild discord was when he understandably expressed concern as to how he was going to return to the farm late at night from the police station.

111. The statement of SC Parkinson contained in the brief of evidence for the subsequent court proceedings (RE 1 at pages 102-104) is not a complete account of the events after the police arrived at the farm. What is clear both from her statement and the body cam videos is that the decision was made to proceed to an AVO without having given the applicant the opportunity to give his version of events. That is, the applicant’s side of what had occurred did not inform that decision. The video shows that SC Neale, who had spoken to the applicant, acquiesced in the decision initiated by SC Parkinson without any input of substance.

112. As set out above SC Parkinson was made available for cross examination. This was not required by the applicant. However, it was always open for the respondent to have elicited further evidence from SC Parkinson, for example, to properly explain the decision she took and the basis on which she took it. In the absence of any such evidence what remains is that the decision was taken on the previously reported claim of an assault, on an unnamed person, and the perception of the presentation of Ms. McCudden. Noting of course that when SC Parkinson spoke to Ms. McCudden’s daughter on the phone it appeared that it was Mr. Tyldesley who had been assaulted.

113. SC Parkinson took the view that Ms. McCudden’s conduct, and words, revealed a fear of harm from the applicant. The applicant says she was not fearful but embarrassed. Ms. McCudden now says that she was not in fear but that the events of that night were just another example of the robust and fulsome relationship with the applicant. The respondent now submits that, in effect, Ms. McCudden is only saying this now because that is consistent with the behaviour of victims of domestic violence.

114. The events of that night occurred about a year and a half before Ms. McCudden gave evidence before the Tribunal. She has continued to live with the applicant in that period. There is no evidence that any other incident of concern has occurred in that period or that Ms. McCudden has been fearful of the applicant. To the contrary, while there are aspects of concern with both the evidence of Ms. McCudden and Mr. Tyldesley, they were both emphatic that the applicant and Ms. McCudden enjoyed a loving and affectionate relationship absent violence (See for example AE 3 at [42] and AE 4 at [21]).

115. On the evidence I find that Ms. McCudden was intoxicated at the time of the commencement of the incident of 18 December 2020. Whatever actual words were used with her son on the phone, they were sufficient for him to become concerned. The report to police was at the instigation of his then girlfriend who on the available evidence did not have a good relationship with the applicant. The police were told that someone had been assaulted. At least SC Parkinson arrived at the farm with that in mind.

116. In her evidence before the Tribunal Ms. McCudden said that she was ‘overwhelmed’ by SC Parkinson and ‘bombarded’ with questions by her. She insisted that she did not give the impression to SC Parkinson that she was worried by and scared of the applicant. This may also be understood in light of Mr. Tyldesley’s evidence that he responded to prompts and suggestions from SC Parkinson in making his initial statement.

117. It was put to Ms. McCudden in cross examination that her current version of events was not the truth and what she told the police and what arise from what appears on the police videos was the real situation of what had occurred. She was emphatic in rejecting this.

118. While Mr. Tyldesley was pressed on certain aspects of his evidence, he was not challenged on his assertion that the question of whether the applicant had a gun in the vehicle at the time of the incident with him, was first raised by SC Parkinson (AE 4 at [18]). His unchallenged evidence is that he told her that he had no fear of any firearms being used by the applicant and did not indicate that the applicant had a firearm in his vehicle. That he ‘possibly might’ have one was said to be his response to her suggestion to that effect. ((AE 4 at [18]). This supports the finding above that SC Parkinson arrived at the farm, understandably, with the view that a serious incident had occurred, but that her subsequent actions occurred in that light.

76. Before the Tribunal Ms. McCudden presented as a strong and forthright person. This is consistent with her own evidence that she is not a ‘shrinking violet’. (AE 3 at 26]). She was intoxicated at the time of the commencement of the incident and during the police attendance. This is clear on her own evidence and that of her son and the applicant. There is nothing on the police videos to challenge this. That intoxication led to the phone call to her son which precipitated the subsequent events, including the police attendance. Her evidence before the Tribunal was that she had ‘exaggerated’ during this phone call.

77. While it can be understood that SC Parkinson took the view that she was fearful, I find that Ms. McCudden’s behaviour during the police attendance was influenced by her state of intoxication. The whispering, her seeming reticence to answer SC Parkinson and her contradictory and somewhat incoherent statements as shown on the police videos were consistent with this view. This is also consistent with the other evidence before the Tribunal now, including importantly, the evidence of Mr. Tyldesley who at the time of the hearing before the Tribunal had moved to Melbourne and was not living with the applicant.

78. What remains therefore is the clear evidence now from both Ms. McCudden and Mr. Tyldesley that the incident was not such as to have been reported to police. There is no reason not to accept this evidence. While the applicant and Ms. McCudden had a ‘robust’ exchange fuelled by alcohol I accept the evidence that the applicant did not physically harm or physically threaten Ms. McCudden. Importantly there was nothing to indicate that the applicant would have resorted to the use of firearms. That allows the acceptance of the applicant’s evidence and submissions that Ms. McCudden’s behaviour during the police attendance and as shown on the police videos was one of embarrassment.

79. I find on the evidence that having unwittingly initiated the police attendance by her phone call to her son, Ms. McCudden was faced with a situation when spoken to by SC Parkinson that her statements to her son were at odds with what had really occurred. Her evidence before the Tribunal was that at that time, notwithstanding her inebriation, she had sufficient awareness of the seriousness of the police having been called. The inconsistent statements made by her on the video reflect her inebriation, her embarrassment and realisation that she was responsible for the police attendance, which was otherwise not necessary.

80. In all therefore the incident of 18 December 2020 does not assist the respondent now in arguing that the applicant is not a fit and proper person to hold a firearms licence and should be denied such a licence in the interests of public safety.

81. In his submissions the respondent also refers to the prosecution of the applicant in 1992 for driving with a high range PCA and assaulting police. (RS at [32.1] and RE 1 at page 33). While this is listed as a matter of note in his submissions, I did not understand it to be pressed as a matter, of itself, determinative of the issue before the Tribunal but rather as part of the applicant’s history which the respondent says renders him unfit to hold a firearms licence. The gravamen of the respondent’s case are the various matters of reports to police of domestic incidents.

82. While the applicant was cross examined on this and gave his explanation for the events leading to these convictions, it remains that this was a matter, as the internal reviewer noted, that occurred about 30 years ago. There was no satisfactory submission as to how this historical event directly related to the domestic incidents on which the respondent otherwise relied. I find that of itself this does not render the applicant unfit to hold a firearms licence. I note that neither the initial decision to revoke the firearms licence, nor the internal review made any reference to this, let alone relied on it, even in part.

83. I should also note for the sake of completeness that the respondent has provided in evidence a copy of the applicant’s traffic offence history. (RE 1 at pages 34-35). However, neither the initial decision to revoke the firearms licence nor the internal reviewer made any reference to this. Importantly, in his submissions the respondent did not press this as a matter for consideration. In any event the last recorded traffic infringement is now of historic character, as nothing is recorded beyond 2007.

84. Although not referred to in the respondent’s submissions as a matter for consideration, the internal reviewer did list an event in May 2008 as part of the applicant’s domestic circumstances on which the decision to revoke the firearms licence was based. (RE 1 at page 28 and with reference to pages 45-48 and see [22] above).

85. The police report reveals that in that matter the applicant is listed as the ‘victim’, and Ms. Benton as the person of interest. Ms. Benton was reported as the applicant’s girlfriend at that time. Following an argument arising from his having stayed at his former wife’s house the applicant was ‘pushed’ out of Ms. Benton’s house. He attended at the police station to return her purse which had been in his possession. No further action was sought by either party. Nor did the police take any action.

86. In the circumstances it is understandable why the respondent made no reference to this in submissions. It says nothing about the central issue now before the Tribunal. Other than perhaps the applicant acted properly in ensuring the return of the purse.

87. The essence of the respondent’s submissions is that the evidence before the Tribunal demonstrates that the applicant has been involved in a number of domestic incidents involving his former wife and his current partner. These incidents, in particular the, as described ‘explosive domestic situation’ of December 2020, when ‘mixed’ with the availability of firearms, are said to create an unacceptable risk to the public.

88. For the reasons set out above I do not agree with the respondent that the various domestic incidents, or the particular incident of December 2020, when viewed individually or cumulatively are probative of the proposition that the applicant is not a fit and proper person such as to hold a firearms licence because of a risk to public safety.

89. Although not of itself determinative of the issue for consideration I note that the applicant is a primary producer, a rice farmer. The applicant submits that the possession and use of ‘long arms’ is a matter of practical necessity particularly in relatively remote areas such as where the applicant’s farm is located. Such necessity arises from the need to control ‘vermin’ and humanely euthanise livestock.

90. Before the Tribunal Ms. McCudden was cross examined as to this need. Her evidence was that firearms were required on the farm particularly to control brown snakes. It was put to her that there were other methods of control, for example the use of baits or arranging for someone to come and cull ‘vermin’.

91. I agree with the applicant that the use of firearms (‘long arms), except for automatic and self-loading rifles and some shot guns is, with a licence, a lawful and accepted method of vermin control in rural areas in Australia. I also take note that control of brown snakes is not susceptible to ‘culls’ as with other animals. The applicant’s possession and use of firearms as a primary producer in a remote area, is a genuine reason for such possession. (See section 3(2)(c) and section 12 of the Act.)

CONCLUSION.

150. The decision of the Commissioner is to be set aside. The applicant’s firearm licence is to be restored to him.

ORDER.

1. The decision under review is set aside.

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

Registrar

Decision last updated: 23 June 2022