Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hardes v Commissioner of Police [2022] NSWCATAD 264 Hearing dates: 8 April 2022 Date of orders: 16 August 2022 Decision date: 16 August 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: S Leal, Senior Member Decision: The decision by the Commissioner for Police on 4 May 2021 to revoke the applicant's firearms licence is set aside. Catchwords: FIREARMS – licensing - revocation – whether fit and proper – whether in the public interest. Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Firearms Regulation 2017 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Comalco Aluminum (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 Lee v Commissioner of Police [2020] NSWCATAD 144 Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Texts Cited: None cited Category: Principal judgment Parties: Darren Hardes (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Hartmann & Associates (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 2021/00249976 Publication restriction: Nil Reasons for decision 1. Mr Darren Hardes, who lives on a rural property and runs cattle, was granted a firearms licence in 2012 for vermin control and recreational hunting. His licence was renewed in 2017 prior to its suspension in 2020 when Mr Hardes was charged with common assault and goods in custody suspected of being stolen. Although the charges were subsequently withdrawn, the Commissioner for Police proceeded to revoke his licence on 4 May 2021, finding that Mr Hardes was not a person who could exercise continuous and responsible control over firearms. 2. Mr Hardes applied for an internal review of the decision. When the internal review was not completed within the time allowed, it was deemed a refusal, which entitled Mr Hardes to seek a review from this tribunal, which he did on 1 September 2021. For the reasons set out below, I have decided to set aside the decision to revoke Mr Hardes' firearms licence. Relevant law 1. The Firearms Act 1996 provides for the regulation, control and registration of firearms. The underlying principles of the Firearms Act are to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, to improve public safety and to facilitate a national approach to the control of firearms. (s3 of the Firearms Act 1996) 2. A firearms licence may be revoked for a number of reasons, including: 1. where it is not in the public interest for the licensee to continue to hold the licence (s24(2)(d) of the Firearms Act; clause 20 of the Firearms Regulation 2017); and 2. where the licensee is not a fit and proper person to hold a firearms licence (ss 24(2)(c) of the Firearms Act). 1. It was for these reasons that Mr Hardes' firearms licence was revoked. 2. A firearms licence may also be revoked if the licensee supplied information which was (to the licensee's knowledge) false or misleading in a material particular in connection with the application for the licence. (s24(2)(b) of the Firearms Act) 3. This tribunal has the power to review the decision to revoke Mr Hardes' firearms licence. (s75(1) (c) of the Firearms Act 1996; s 30 of the Civil and Administrative Tribunal Act 2013. 4. In doing so, it is the role of the tribunal to make the correct and preferable decision on the material before it. (s 63 of the Administrative Decisions Review Act 1997) 5. The tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal. Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77. Public interest 1. The expression "public interest" is not defined in the Firearms Act. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Firearms Act and the strict controls under the Firearms Act in relation to licensing. 2. The public interest is a broad concept, designed to give the broader interests of the community priority over private interests. (see Comalco Aluminum (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657). 3. The tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23]. 4. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94]. Fit and proper 1. The High Court dealt with the expression "fit and proper person" in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. Toohey and Gaudron JJ stated (at 380): The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of 'fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. In the same case, Mason CJ stated at [63] that: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 1. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper ": In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails. 1. In Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 the Tribunal stated that the fitness and propriety of a person must be considered in the context of, at all times, ensuring public safety: In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. (at [22]) Issue for determination 1. In deciding this matter, I need to determine: 1. whether I accept that it would not be in the public interest for Mr Hardes to hold a firearms licence; 2. whether Mr Hardes is a fit and proper person to hold a firearms licence. 1. In determining this question, I have considered all the evidence before me under the following categories: 1. Mr Hardes' history as a holder of a firearms licence; 2. Mr Hardes' criminal history, including his record of traffic offences; 3. Whether Mr Hardes has a history of aggressive behaviour; 4. Whether Mr Hardes provided false information when applying for a firearms licence in 2012; 5. Whether, following its suspension, Mr Hardes failed to relinquish his firearms licence in a timely manner; 6. Mr Hardes' character and reputation. Mr Hardes' history as the holder of a firearms licences 1. On the evidence before me, I am satisfied that Mr Hardes held a firearms licence without incident from 2012 to 2020. 2. I accept Mr Hardes' evidence that because he has 4000 acres of land on which he has cattle, he needs a gun to shoot vermin - in particular wild dogs that eat his calves - and to put down injured animals. His elderly father, who still has a farm but no longer holds a firearms licence, also relies on Mr Hardes for vermin control. In addition to this, Mr Hardes is part of a hunting club and enjoys recreational target shooting. 3. Since the revocation of his firearms licence, I accept Mr Hardes' evidence that he has been relying on friends to help him and has had to pay a tracker to shoot wild dogs, at a cost of between $500 and $800 per week. 4. Mr Hardes described himself as being responsible with firearms and there is nothing before me to dispute this. An earlier issue raised by the Commissioner of Police in relation to firearm storage is no longer pressed and, accordingly, I have not taken it into consideration in my decision. Mr Hardes' criminal history, including traffic offences 1. Mr Hardes' was born in 1985 and, in 2000, whilst a juvenile, he was placed on a bond for maliciously destroying a car by fire. The following year, he was placed on a further bond for theft and malicious damage offences. 2. In 2005, Mr Hardes was placed on a bond after being convicted of assault occasioning actual bodily harm for headbutting his father-in-law. 3. Mr Hardes has had sixteen traffic infringements and offences between 2001 and 2021, including seven speeding offences between 2005 and 2021, a suspension of his P2 licence in 2004 and 2005 and a failure to display his L or P signs on five occasions between 2002 and 2005. Does Mr Hardes have a history of aggressive behaviour towards others? 1. For the reasons set out below, I am satisfied that whilst the evidence shows, and Mr Hardes himself concedes, that he displayed a hostile manner towards police as a juvenile, as an adult he has led a generally stable life, remaining in a long-term, supportive relationship, raising two children – including one with special needs – and running a successful business. I accept that whilst he assaulted his father-in-law in 2004 and has come to the attention of police on several occasions since then, on the evidence before me, I am not satisfied that his behaviour8 has been such as to demonstrate that he would pose a risk as the holder of a firearms licence. Behaviour as a juvenile and early adult 1. According to a police report (known as a COPS event record), when a 15-year-old schoolboy, Mr Hardes is said to have tried to pull another student out of a stationary vehicle. Mr Hardes agreed he had been called in by his school principal but denied having been issued with a suspension. 2. In 2004 and 2005, police reports describe Mr Hardes as having displayed a hostile manner towards police. In 2004, a charge of assault against Mr Hardes was dismissed. 3. In 2007, police searched Mr Hardes' premises for drugs or firearms which they failed to locate. According to the relevant police report, Mr Hardes admitted that 'he used to smoke pot, however, he states that he has since given it away due to getting his life on track: i.e. he has a mortgage; his girlfriend is 7 months pregnant and he has recently attained a new job that requires drug testing.' 4. It is not in dispute that Ms Greig was the girlfriend in question, that she and Mr Hardes remain in a relationship, have two children together and operate a mechanical services business, for which Ms Greig does the paperwork and Mr Hardes manages the physical work. 5. In 2013, a COPS entry notes that Mr Hardes had threatened the parent of a child said to have been bullying his nephew. In oral evidence in these proceedings, Mr Hardes agreed to having discussed the bullying of his nephew with the parents of the child he believed to be the culprit but denied making any threats. No evidence was called to dispute Mr Hardes' explanation which I accept, having found Mr Hardes to be an open and reliable witness. Recent verbal altercations 1. On 26 December 2020, Ms Greig's mother called police to restrain her daughter from taking her children in the car while intoxicated. Police were also informed that Mr Hardes had been swearing at his son. According to Senior Constable Power who attended the scene, Mr Greig said this about her husband: 'You've known us a long time, Powers. You know what he's like and how he gets angry but it will blow over.' 2. In oral evidence in these proceedings, Mr Hardes agreed he had sworn at his son about his X-box use. In her oral evidence, Ms Greig agreed that she and Mr Hardes have verbal arguments but denied ever having been physically threatened by him. I found Ms Greig to be a reliable witness and accept her evidence that Mr Hardes has never displayed threatening behaviour towards her. 3. On 22 September 2021, Mr Hardes' then twelve-year-old daughter called the police because her parents were fighting. When the police attended, Ms Grieg agreed there had been a verbal altercation but nothing physical. 4. Mr Hardes gave evidence that the verbal argument had occurred in the context of ongoing restrictions due to COVID which had required Ms Greig to assist in home schooling the couple's children, including their daughter who is autistic, with poor verbal skills. Mr Hardes had trained his daughter to ring 000 if she needed to contact the police, which she had done when Mr Hardes and Ms Greig began to argue. I accept the evidence of Mr Hardes and Ms Grieg in relation to this incident which, on the evidence before me, I am satisfied occurred within the stressful context of last year's COVID outbreak and did not involve any threatening behaviour or risk to Ms Greig or the children. Hotel incident – 11 December 2020 1. On 11 December 2020, Mr Hardes is alleged to have punched a patron at a local hotel. 2. According to the narrative taken by the attending police officer, Senior Constable Bear, and confirmed by him in a statement prepared for these proceedings: Approximately 11pm on Friday 11 December 2020, [two men] were inside the [hotel] when for reasons unknown, [Mr Hardes] has approached them…proceeded to call [them] paedophiles and without warning has punched [one of the men] to the face. 1. The punched man identified Mr Hardes as the assailant but declined to give a statement, telling Senior Constable Bear: It was definitely Darren Hardes that did it but I won't give you a statement. I'm not a rat. 1. The licencee of the hotel, Mr John Adams, gave evidence in these proceedings. He agreed that he had been told that Mr Hardes had punched a patron but he was unable to say whether this was correct or not. He remembered that Mr Hardes had been drunk at the time and had gone home. When the attending police officers asked to see Mr Hardes, Mr Adams told them not to worry and that he would tell Mr Hardes not to come back for a while. Mr Adams gave evidence that he was going to give Mr Hardes 'two or three weeks off.' He agreed that he had noted the event up in an incident report and said that no-one had been hurt. In oral evidence in these proceedings, he told the tribunal that he had 'no issues whatsoever' with Mr Hardes. 2. Ms McKenzie and Mr Cameron, who are employed by Mr Hardes and who had been at the hotel with him on the night in question, denied having seen Mr Hardes punch anyone. 3. In oral evidence in these proceedings, Mr Hardes denied assaulting a patron at the hotel that evening. No charges were laid in this matter and no evidence was provided in these proceedings to substantiate the allegation. For these reasons, I cannot be satisfied the assault took place and give no weight to the allegation. February 2020 altercation 1. It is not in dispute that, in the early hours of 2 February 2020, Mr Hardes' business premises were broken into, as was the adjacent service station. 2. I accept Mr Hardes' evidence that, on discovering the break-in at 6am that morning, he rang the police to ask them to attend the crime scene,and continued to ring the police with this request throughout the day. 3. It is not in dispute that, later that afternoon, an altercation took place between Ms Greig and a female employee of the service station, and that Mr Hardes' subsequently took a mobile phone from the service station console operator 4. Having viewed CCTV footage of these incidents and having considered the evidence of Mr Hardes and Ms Greig in addition to the submissions of counsel for the Commissioner for Police and counsel for Mr Hardes, I am satisfied that: 1. at about 3.19pm, Mr Hardes approached the employee at the back of her car door, reached into her car and took what the employee thought was her phone but was in fact Ms Greig's phone, with a similar case; 2. Mr Hardes handed the phone to Ms Greig; 3. Ms Greig then entered the service station holding the phone; 4. the employee walked past Mr Hardes, entering the service station behind Mr Greig; 5. the employee grabbed Ms Greig around the neck from behind and both women fell to the floor; 6. Mr Hardes then pulled the employee away from Ms Greig; 7. Mr Hardes approached the console operator who was recording the altercation between Ms Greig and the employee, and took the console operator's mobile phone from him; 8. Mr Hardes tried to hand this phone to Ms Greig before instead placing it on a shelf near the service station counter; 9. the employee then got into her car, reversing as Mr Hardes walked out of the service station, then driving forward as Mr Hardes walked in front of the car; 10. Although Mr Hardes gave evidence that the employee was trying to run him over, on the basis of the footage before me, I cannot be satisfied that this was the case. 1. Later that afternoon, when Senior Constable Bear telephoned to discuss the matter, I accept Senior Constable Bear's evidence that Mr Hardes: immediately began screaming down the phone at me, most of which I was unable to understand. However at one point he told me to attend his premises so we could compare penis sizes. 1. I also accept the evidence of the scene of crime officer that Mr Hardes shouted and swore at her on the telephone and that because of his manner, the scene of crime officer did not feel comfortable attending the crime scene on her own. Mr Hardes accepted that he had yelled and sworn at the scene of crime officer but had apologised to her for his behaviour. 2. On the basis of the oral evidence provided by Ms Greig, who I found to be a reliable witness, I accept the following context for the events caught on CCTV, as described above: 1. When, on the morning of 2 February 2020, Mr Hardes rang to tell Ms Greig that both their business premises and the adjacent petrol station had been broken into and robbed, Ms Greig attended the business to try to repair the damaged communication devices. As there was no other care available, she was accompanied by the couple's then eleven-year-old daughter, who has autism and poor verbal skills. 2. Ms Greig suspected that the sister of the female employee may have been responsible for the break in. Upset by this accusation, the employee photographed the daughter of Mr Hardes and Ms Greig, telling Ms Greig she would use the photographs as needed, that she knew where Mr Hardes and Ms Greig lived and that she would burn their house down. 3. Ms Greig told Mr Hardes that the employee had taken photos of their daughter. When the employee mistakenly thought Ms Greig had taken her mobile phone (as they both had similar coloured cases), she tackled Ms Greig for it and they both fell to the ground. While Ms Greig and Mr Hardes' daughter was crying, I accept that the console operator was filming Ms Greig and the female employee. Mr Hardes entered the petrol station when he heard his daughter screaming and told the console operator to stop filming, before taking his mobile phone. 1. I accept the oral evidence provided by Mr Hardes that the CCTV system set up at his business had captured the break in on film. This had enabled Mr Hardes and Ms Greig to view the offenders and to suspect that one of them was the sister of the female employee. 2. Although charges of assault and goods in personal custody suspected of being stolen were initially laid against Mr Hardes, they were later dismissed when the female employee and the console operator failed to attend court to give evidence. 3. I accept the evidence of Mr Hardes and Ms Greig that they assisted police with their investigations into the break-in of Mr Hardes' workshop on 2 February 2022, which included providing the police with CCTV footage, and that the suspects were charged, the details of which are not before me. 4. On the evidence before me, it seems that the events of 2 February 2020 created a perfect storm, culminating in the revocation of Mr Hardes' firearms licence. I accept that Mr Hardes was upset about the break in and the damage caused to his workshop. I am also satisfied that Mr Hardes was frustrated that, despite his many calls, the police did not attend the crime scene that day. I accept that Mr Hardes was concerned that, as a consequence, evidence from the crime scene risked being lost. 5. I am satisfied that the arrival of Ms Greig to try to repair the communication devices damaged in the break-in, accompanied by the couple's young daughter, escalated the tension when the female employee mistakenly believed that Ms Greig had taken her mobile phone then became agitated by the accusations levelled against her sister. I am satisfied that Mr Hardes intervened in the subsequent altercation to assist Ms Greig before taking the console operator's mobile phone to stop him filming the incident. 6. By this stage, I accept that nine hours had elapsed since Mr Hardes' discovery of the break in, during which time Mr Hardes had repeatedly been contacting the police to attend the scene. I accept that, by this time, Mr Hardes was frustrated, upset and concerned for his family's safety which provides some context for his unpleasant behaviour towards the scene of crime officer. Unsurprisingly, Mr Hardes' angry manner made the officer reluctant to attend the crime scene, even if she had been able to find the time to do so. 7. On the evidence before me, however, I am not satisfied that Mr Hardes threatened Senior Constable Bear, the scene of crime officer, the female employee or the console operator. I accept that the constellation of events that took place on 2 February 2020 were highly unusual and give some context for Mr Hardes' unacceptable conduct towards the scene of crime officer. I am satisfied that Mr Hardes himself quickly realised this given his subsequent apology to her. 8. In light of the circumstances as considered above, I am not satisfied that Mr Hardes' behaviour on 2 February 2020 demonstrates that he would pose a risk as the holder of a firearms licence. In completing his application for a firearms licence, did Mr Hardes deliberately provide misleading information? 1. Contained on file is the completed application form by Mr Hardes for a firearms licence dated 29 June 2012. Under the category Personal History on the form, Mr Hardes answered no to a series of questions including this one: Have you in NSW or elsewhere, within the last 10 years, been convicted of an offence involving firearms or weapons, prohibited drugs/plants……terrorism, violence, robbery…or an offence of a sexual nature? 2. It is not in dispute that Mr Hardes was convicted of assault occasioning actual bodily harm in 2005. I accept that this is an offence involving violence and that, as it occurred after 2002, Mr Hardes should have answered yes to this question. 3. On the evidence before me, however, I cannot be satisfied that Mr Hardes deliberately provided misleading information. In her evidence, Ms Greig explained that whilst her husband does the physical work in the mechanical business while she does the paperwork. In his evidence, Mr Hardes came across as an honest, albeit unsophisticated witness. Character references attest to his honesty. Accordingly on the evidence before me, I accept it is possible that Mr Hardes was simply careless in completing his application rather than deliberately misleading. This does not excuse his behaviour: a firearms licence is a privilege and it is important that prospective licensees take particular care when filling out the relevant application form. On the evidence before me, however, I cannot be satisfied that in answering no to the question, Mr Hardes was being deliberately misleading. Whether Mr Hardes failed to relinquish firearms licence in a timely manner 1. According to the Commissioner of Police, although Mr Hardes' firearms licence was suspended on 9 July 2020, by not handing it in until 27 July 2020, he failed to relinquish it in a timely manner. 2. I accept Mr Hardes' explanation for this delay namely that: 1. when the police attended to seize his firearms licence, it was with Ms Greig who was not with him at the time; 2. he sustained an eye injury on 9 July 2020 for which he was hospitalised; 3. he attempted to hand in his licence to the local police station on several occasions but couldn't do so as the police station, which is not always staffed, was closed. 1. For these reasons, I am not satisfied that Mr Hardes failed to relinquish his firearms licence in a timely manner. Character references for Mr Hardes 1. I give weight to the references provided by the following people, who were not required for cross-examination by the Commissioner of Police: 1. David Topp, Farm Manager, who has known Mr Hardes since 2017 and describes him as 'courteous, generous and reliable.' 2. Ben and Vida Xu, who have leased property to Mr Hardes since 2017, and describe him as 'friendly, honest and reliable.' 3. Darryl and Genevieve Rossington, who have known Mr Hardes since 2010, and describe him as being 'an intricate part of keeping our business running.' 4. Dimitri Papadopoulos, who has known Mr Hardes since 2017, and who has always found him 'a very calm and respectful person [who] helps people in any which way he can and [tries] the best he can to lend a helping hand wherever he can.' 5. Francis and Margaret Flanagan who have 'known the Hardes' family for several decades and have known Darren for most of his life' and who describe Mr Hardes as 'an honest person, a loving father and a good family man.' According to the couple, Mr Hardes' 'widely respected mechanical business has been a vital part of our business as livestock graziers for several years' and they 'consider him to be a good person.' 6. Katherine Brooks who describes Mr Hardes as 'hardworking, smart and honest' with a very good reputation and a successful mechanical services business.' 7. Alan Stafford who has known Mr Hardes since he was a young boy' and who describes him as having a good reputation and being highly regarded. 8. Steve and Sue Cumberland who employ Mr Hardes as their on call mechanic and who have always found him to be 'obliging, competent, honourable and always well mannered…and respectful.. towards his staff.' 1. In his oral evidence, Mr Hardes' employee, Mr Cameron, agreed that Mr Hardes can become angry – everyone gets angry, so yeah – but denied having seen him lose his temper, explaining that he always keeps control of the situation. 2. Mr Hardes' partner, Ms Greig, gave oral evidence in these proceedings. I found Ms Greig to be an open and reliable witness and give weight to her testimony. 3. In describing Mr Hardes as her rock, Ms Greig, explained that: I did not come from a normal family… It took me a long time to grow up. Darren has never physically threatened me or hurt me. He is the cooler-headed. I do the paperwork, he does the physical work. 1. Ms Greig told the tribunal that because her mother had drug addiction and mental health problems, she had grown up with her great-grandparents and had left school at the age of fourteen. With Mr Hardes, she had 'found her first ever stability' and described his involvement with the local community and his willingness to assist when needed, including making repairs to the high school. 2. In a statement prepared for these proceedings, Mr Greig described the aftermath of the break-in to their business: We were broken into, our children were threatened, our sense of security stripped, and I was physically hurt, but somehow Darren became the 'bad' and punished person. He was placed on charges, he had his ability to assist our children at school taken from him, he had his name and reputation tarnished by the local paper and their incorrect allegation and his gun licence revoked. We've had added financial strain, house relocation, legal fees, increased premiums etc. But even with this happening, Darren has continued to conduct himself in an honourable manner. He has taken time away from work and family to travel and help police with their investigations. He has sat with our daughter for countless hours assuring her we are safe. He's attempted to assure me we're all safe. He has worked hard to prove town gossip incorrect and again, to build our business and customer's trust in him. Darren is not a dangerous or irrational person. He is a loving and protective father. Can the tribunal can be satisfied that the applicant poses virtually no risk to himself or others if he were to possess firearms? 1. Mr Hardes' juvenile record supports his evidence that he was, as he describes in these proceeding, 'a shit of a kid.' 2. On the evidence before me, however, I accept that, from his early problems as a juvenile, he has made great improvements to his life, such that his character references attest to his hard work, honesty and generosity. He has been in a relationship with Ms Greig for over 20 years - from the time he was a teenager – during which time they have bought a house, raised two children, including one with special needs, and managed a successful mechanical business. Despite having left school early, with Mr Hardes' support, Ms Grieg has trained and now works as a primary school teacher. 3. In his evidence, Mr Hardes spoke of his commitment to the local community, explaining that 'because it's only a little town, if you don't help out, it won't get done.' He denied ever being violent towards his family, telling the tribunal that he had learnt to be disciplined as a result of his martial arts training. 4. He denied having a problem with anger and did not agree that he had displayed a pattern of aggressive behaviour towards others. He agreed that, as a minor, he had acted with aggression and anger, and had been in trouble with the law, including being convicted of malicious damage to property. He agreed that he had sworn at the scene of crime officer on 2 February 2020 but had apologised for it. 5. Even in his evidence in these proceedings, Mr Hardes language was peppered with profanities and, given that he is a physically imposing figure, it is easy to understand how the use of such language in conjunction with a raised voice could make Mr Hardes seem intimidating. I accept that Mr Hardes has sworn and raised his voice at police officers but, on the evidence before me, has not behaved in a threatening manner. This does not excuse Mr Hardes' behaviour towards the police. His verbal interactions with the police have been unsatisfactory and unless he changes his tone when dealing with the authorities, he risks continuing to come to their attention. 6. Nevertheless, following his conviction in 2005 for assault occasioning actual bodily harm, I accept that Mr Hardes has led a generally stable life as the owner of a rural property and a successful mechanical services business. He is in a long-term relationship with Mr Greig who has given evidence about her husband's attributes as a father, husband, worker and member of the local community. The many character references before me support Ms Greig's description of Mr Hardes and describe him as a generous and hard-working man with a good reputation. 7. For the reasons set out above: 1. I cannot be satisfied that Mr Hardes punched the hotel patron in December 2020 and give no weight to this allegation; 2. whilst I accept that a call was made to the police by Mr Hardes' daughter in September 2021, I am satisfied that this was simply because she was upset that her parents were arguing and not because she or anyone else was at risk of harm. I am not satisfied that this incident is an indication that Mr Hardes would pose a risk were he again to be the holder of a firearms licence; 3. I am satisfied that Mr Hardes' behaviour on 2 February 2020 took place in stressful and unusual circumstances. Whilst his behaviour towards the scene of crime officer was inappropriate, I accept that Mr Hardes has insight into this, demonstrated by his apology to her. As stated above, Mr Hardes would benefit from managing his tone of voice when he becomes angry. 1. In summary, on the evidence before me and for the reasons provided, whilst I could not be totally satisfied that Mr Hardes would not pose any risk to public safety if he were given access to a firearm, I am satisfied that there is virtually no risk of it. (see Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28) Is Mr Hardes a fit and proper person to hold a firearms licence? 1. For the reasons set out above, I am satisfied that Mr Hardes poses virtually no risk to himself or others were he to possess a firearms licence and that has a reputation for honesty and generosity both amongst his colleagues, clients and members of the local community. Whilst he needs to pay attention to his verbal manner, particularly in stressful situations, on the evidence before me, I am satisfied that he can be trusted to have possession of firearms without danger to public safety or to the peace, that he has the honesty, knowledge and ability to hold a firearms licence and that, accordingly, is a fit and proper person to do so. Is it not in the public interest for Mr Hardes to continue to hold a firearms licence? 1. In considering whether I am satisfied that it is not in the public interest for Mr Hardes to continue to hold a firearms licence, I have taken into account (as detailed above): 1. his need for a firearms licence; 2. his history as a firearm licence holder; 3. his criminal record; 4. allegations of aggressive behaviour towards others; and 5. character references. 1. Considering these matters together and, having found Mr Hardes to be an open and reliable witness, I accept that he understands the responsibility required of the holder of a firearms licence and can be trusted to show this responsibility in his handling of firearms. 2. On this basis, I do not accept that it would not be in the public interest for Mr Hardes to hold a firearms licence. 3. Accordingly, the decision by the Commissioner for Police to revoke the applicant's firearm licence should be set aside. Order 1. The decision of the Commissioner of Police on 4 May 2021 to revoke the applicant's firearm licence is set aside. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 August 2022