CITATION: Coates -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 56 DIVISION: General Division APPLICANT PARTIES: Stewart Coates RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 003384 HEARING DATES: 15/03/01 SUBMISSIONS CLOSED: 03/22/2001 DATE OF DECISION: 04/06/2001 BEFORE: Hennessy N (Deputy President) APPLICATION: Firearms Act - firearms licence - revocation of licence or permit MATTER FOR DECISION: Principal matter LEGISLATION CITED : Firearms Act 1996 Jones v Dunkell (1959) 101 CLR 298 CASES CITED: Wallace, Jason and Registrar of Firearms [1998] ACTAAT 234 (11 February 1998) Tibbs and Commissioner of Police (AAT (ACT) C89/9 of 30 January, 1990) Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (23 March 2000) APPLICANT REPRESENTATION: T Shulze, barrister RESPONDENT J Klarica, barrister ORDERS: 1. The decision of the Commissioner to revoke Mr Coates' AB and H firearms licences is affirmed. Background 1 On 10 June 2000 Mr Coates applied for a Category AB firearms licence (recreational hunting/vermin control) and a Category H licence (target shooting). A delegate of the Commissioner of Police (the Commissioner) approved the application. On 1 August 2000 Mr Coates went to the Roads and Traffic Authority (RTA) Office and paid for the licences. A delegate of the Commissioner revoked both those licences on 25 September 2000, following a recommendation from the Holroyd Local Area Command. 2 The trigger for the Commissioner's decision to revoke the licence was Mr Coates' involvement in a domestic dispute on 31 July 2000 and a visit by two police officers on 1 August 2000. Mr Coates was not charged with any offence as a result of these incidents. Constable Hansford went to the house where Mr and Mrs Coates live on 1 August 2000. On the basis of information she obtained at that time, Constable Hansford concluded that Mr Coates was manipulative and emotional and had a volatile relationship with his wife. For these reasons in her view, it was not in the public interest for Mr Coates to continue to hold a firearms licence. After police visited on 1 August 2000 Mr Coates went to the RTA to pay for his licences. Relevant law 3 The Firearms Act 1996 sets up a scheme for licensing people to possess and use firearms. Section 24(2) sets out some of the grounds on which the Commissioner may revoke a licence. The provisions in italics are relied on by the Commissioner in this case. A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (d) for any other reason prescribed by the regulations. 4 In relation to s 24(2)(a), s 11(4)(a) of the Firearms Act states that: (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of: (a) the applicant's way of living or domestic circumstances, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind. 5 In relation to s 24(2)(d), Clause 17 of the Regulation states that: In accordance with section 24 (2) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it . Issues and conclusion 6 Based on these provisions, the Commissioner alleges that he made the correct and preferable decision in revoking the firearms licences because: + Mr Coates may not personally exercise continuous and responsible control over firearms because of his way of living or domestic circumstances; and/or + Mr Coates is not a fit and proper person to continue to hold a firearms licence; and/or + it is not in the public interest for Mr Coates to continue to hold a licence. 7 The issue for the Tribunal to determine is whether the Commissioner made the correct and preferable decision in revoking Mr Coates' firearms licences on any of these grounds. I have concluded that he did. The evidence on which that conclusion is based and the reasons for that decision are set out below. Evidence 8 The documentary evidence before the Tribunal was as follows: + copy of Police Service's file; and + statement from Senior Constable Jane Hansford, Merrylands Police Station, dated 10 February 2001. 9 Senior Constable Hansford gave oral evidence which expanded on her written statement. In summary, Constable Hansford said that she and Constable McMartin attended Mr and Mrs Coates' house on 1 August 2000 after Mrs Lee Coates telephoned. Mrs Coates told her that she and her husband had fought the previous night and that police had attended. The argument culminated in Mr Coates taking Mrs Coates' ATM card and disabling the car so she could not drive it. 10 Constable Hansford spoke to Mr Coates. He agreed that he had taken the ATM card and disabled the car and refused to give the card back or fix the car. Mr Coates told the police officers that his wife had threatened him with a knife the previous night and that he had a mark on his neck. Constable Hansford could not see any marks on his neck. 11 Mr Coates told Constable Hansford that he and Mrs Coates met while she was working as a prostitute. They married on 15 May 1999. Since being married they have argued frequently. One of these arguments led to him locking his wife outside the house in the nude and refusing to let her back in. Mr Coates said his wife had hit and kicked him during these arguments. He said that the arguments were caused by his wife not doing what he wanted her to do and that she had to learn to do what she was told. He said that his wife, while working as a prostitute, mixed with dangerous criminals and that she could arrange for these criminals to hurt him. Mr Coates said that while Mrs Coates had never threatened to get someone to hurt him, he knew she could organise for someone to hurt him if she wanted to. He stated that his marriage was "everything" and if it failed he "would have nothing". He said he was receiving counselling. 12 Mr Coates told Constable Hansford that he had applied for an AB and H category firearms licences and that he intended to buy a rifle which he would store at "a mate's place." 13 Constable Hansford and Constable McMartin then went inside and spoke to Mrs Coates again. She told them that since their marriage they had fought frequently and "come to blows" several times. She said that her husband had threatened her with a knife and that she had hit him in self defence. She denied threatening her husband with a knife. She said her husband was very jealous and that he wanted her to do what she was told. Since being married he would not let her find a job. She said she had owned the house and most of the contents when they married. Recently they had put the house into joint names. 14 Constable Hansford told Mrs Coates how to obtain an Apprehended Violence Order (AVO). Mrs Coates said that an AVO would not help because they would just keep arguing. She felt she should start divorce proceedings and that the relationship was over. She could not leave because she would lose the house and her belongings. She was scared to leave because she believed Mr Coates would damage her belongings. She decided to leave the house for a few days while a counselling session was organised. 15 Constable Hansford then spoke to Mr Coates again. He agreed to return his wife's ATM cards and fix the car if she said she loved him and agreed to attend a counselling session. The cards were returned and the fuses replaced. Mrs Coates then left. Mr Coates told Mrs Coates that he loved her and that if the marriage did not work he 'would have nothing.' 16 Constable Hansford telephoned Mrs Coates that evening. Mrs Coates told her that she had stopped to get cash at the ATM and that all the money had been taken out of the account. She felt that Mr Coates had taken all the money out after she left so that she would have to return home. Constable Hansford's summary at the end of her statement, was that: Both parties agree that there have been arguments since they married, about 14 months ago. Neither party has any obvious injuries and there were no independent witnesses to any of the alleged incidents. Both parties alleged that they have been assaulted by the other, including having been threatened with a knife. Both claim their actions were in self defence. After speaking with both parties I was unable to prove any offences. On 8 August 2000 I submitted a report to the Firearms Registry questioning the fitness of both Ancharee and Stewart Coates to hold a Shooters licence. I believe that due to the nature of their domestic relationship it is potentially dangerous for either to have access to firearms. It does appear that there has been violence in the marriage in the past. I believe the presence of a firearm could escalate the level of violence during these arguments. 17 During cross examination additional information and explanations in relation to the events of 31 July and 1 August 2000 and the surrounding circumstances were put to Constable Hansford. She was unable to add anything further than the fact that she had recorded the content of her conversations with both Mr and Mrs Coates in the statement. 18 Mr Coates is 30 years old and works as a technician. He gave evidence which contradicted or added to the information contained in Constable Hansford's statement. In particular he said that: + he took the ATM card and disabled the car because Mrs Coates had threatened to "trash the car and spend every cent"; + he said he didn't lock his wife outside. She threatened to leave with nothing, took her clothes off, and went outside. She came back inside some time later; + he does not recall threatening Mrs Coates with a knife and her hitting him in self defence; + his wife has worked since they have been married. She was working as a kitchen hand and then after a period of training, as a nursing assistant at a nursing home; + the house was in the name of his wife and her former partner when he and Mrs Coates married. He bought out the former partner's share for approximately $12,000 and the house was now in joint names. He is paying the mortgage; + they each own about half the contents of the house; + Mrs Coates rang him twice on the evening of 1 August 2000 saying she loved him and wanted to come home; + he and his wife are participating in the IVF program; + the only money he withdrew on 1 August 2000 was just over $1,000 to make a repayment on a property in Thailand; and + they have been arguing consistently for 14 months, but things are getting better. 19 Mr Coates gave evidence about various other accounts which he says Mrs Coates can access. 20 Mr Coates said that his wife was not present to give her version of events because she was at work. He agreed that he had told Constable Hansford that his wife had threatened to arrange for criminals to hurt him if he ever left her. 21 Mr Coates stated that during the marriage there had been three incidents where there had been violence. He denied ever attacking his wife with a knife and denied locking her out of the house while she was in the nude. He said that he told Constable Hansford that "I am not an angel." He said he did not believe he was a controlling or manipulative person. Mr Coates agreed that he had gone to pay for his firearms licence after the police officers left on 1 August but said that he was going to do it anyway. 22 Mr Coates said he had not eaten for 2 days prior to the police visit and that he was shaky and emotional. Mr Coates said he has never been charged or convicted with any domestic violence or other offence. Findings of fact 23 With a few exceptions, I make findings consistent with Constable Hansford's record of the conversations she had with Mr and Mrs Coates. I prefer her evidence over that of Mr Coates in most respects for three reasons. First, she made a detailed record of her conversations and impressed me as a credible witness with extensive experience investigating domestic violence situations. Secondly, Mr Coates (or Mr Coates' solicitor on his behalf) failed to call Mrs Coates to give evidence. The principle in Jones v Dunkell (1959) 101 CLR 298 applies in these circumstances. The failure to call Mrs Coates to give evidence leads to the inference that her evidence would not have supported Mr Coates' version of events. Thirdly, while some of what Mr Coates said was credible and borne out by independent evidence, he did not impress me as giving a full and frank account of his conduct on the 31 July 2000 and 1 August 2000, nor of his relationship with Mrs Coates. 24 Where Mr Coates alleges that Mrs Coates has said or done something which does not appear in Constable Hansford's version, I do not accept that evidence. In particular, in the absence of any evidence from Mrs Coates, I do not find that she said she would trash the car and spend every cent. I also accept that Mr Coates told Constable Hansford that he locked his wife outside when she was in the nude. In the absence of any independent evidence, I make no finding as to whether Mrs Coates has been working at various times during their marriage, whether the couple are on the IVF program or whether their relationship has improved in recent times. 25 Because there is some independent evidence of financial circumstances, I accept Mr Coates' evidence in relation the couple's financial circumstances and ownership of property. I also accept that Mr Coates did not deliberately withdraw money from any bank accounts so that Mrs Coates could not have access to them. 26 I make no findings about Mr Coates' mental health despite some comments in Constable Hansford's statement. Her experience and training, although extensive, do not qualify her to give expert evidence about that matter. 27 I find that Mr and Mrs Coates have been married for 14 months. Their relationship has been characterised by jealousy, mistrust, emotional insecurity, threats and arguments. Mr and Mrs Coates have used physical force against one another. I also find that a knife has featured in these arguments on at least one occasion. They have attended counselling. Reasons and decision 28 Objects of the Act. The principles of the Firearms Act are set out in s 3: 1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. 29 May not personally exercise continuous and responsible control over firearms. The first ground on which the Commissioner relied for revoking Mr Coates' licence was that he has reasonable cause to believe that Mr Coates may not personally exercise continuous and responsible control over firearms because of Mr Coates' way of living or domestic circumstances. 30 In Wallace, Jason and Registrar of Firearms [1998] ACTAAT 234 (11 February 1998) Dr D McDaniel of the ACT Administrative Appeals Tribunal surveyed some of the cases which have given rise to similar issues in that jurisdiction. Dr McDaniel decided that there must be some nexus between the conduct of the applicant and the possession or use of a firearm. He said at [23] that: In the present case, I have come to the view that there is insufficient relevant connection between the holding of a firearms licence and the ownership of a gun on the one hand, and Mr Wallace's drunkenness and his driving offences on the other. Nor do I find that Mr Wallace has behaved in the past in a manner that would lead one to conclude that when angry he would consider making use of a gun. 31 Dr McMichael also referred at [22] to the matter of Tibbs and Commissioner of Police (AAT (ACT) C89/9 of 30 January, 1990). In that decision, the President of the ACT AAT, Mr R K Todd, affirmed the decision of the Commissioner that the applicant was not a fit and proper person to hold a gun licence. The applicant in that case had a criminal record which included offences involving violence and possession of a firearm without a licence. Mr Todd concluding the Commissioner's decision refusing him a gun licence should be affirmed. 32 In Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (23 March 2000) this Tribunal set aside the Commissioner's decision to revoke Mr Ward's licence. Mr Ward was convicted of assaulting his partner and fined $1000. The assault resulted in swelling of the left thigh, red marks to her left cheek, blood on her lower lip and bruising to the right side of her neck. The fact that Mr Ward had never been convicted of any other offences involving violence; had attended counselling and has shown genuine remorse and determination not to re-offend; were factors taken into account by the Tribunal in setting aside the Commissioner's decision. In addition, Mr Ward had experience in the possession and use of firearms and in teaching others to use firearms. 33 In this case Mr Coates has never been convicted of a criminal offence and there is no evidence that he has used a firearm irresponsibly or unsafely. The evidence which supports an inference that he may not personally exercise continuous and responsible control over firearms is that he has argues frequently with his wife, physical force is sometimes involved and a knife has featured in these arguments on at least one occasion. Other relevant circumstances are that Mr Coates showed no remorse for these incidents and did not indicate how he intended to ensure that the relationship was less violent in the future. 34 The issue is whether this evidence is sufficient to give rise to an inference that Mr Coates may not personally exercise continuous and responsible control over firearms. I am satisfied that such an inference does arise. Although Mr and Mrs Coates are still living together, the relationship has been characterised by emotional trauma, frequent arguments, and the use of force and a knife. Until Mr Coates can demonstrate that the arguments, threats and fights have stopped and are unlikely to recur, the Commissioner is justified in refusing him a firearms licence. 35 Having decided that the Commissioner has made the correct and preferable decision on this ground, there is no need to consider the alternative grounds for revoking the licence. Order 36 The decision of the Commissioner to revoke Mr Coates' AB and H firearms licences is affirmed. 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.