Mewburn v Commissioner of Police, NSW Police [2009] NSWADT 24 (6 February 2009)

Last Updated: 6 February 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Mewburn v Commissioner of Police, NSW Police [2009] NSWADT 24


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Matthew Johnathan Mewburn

RESPONDENT
Commissioner of Police, NSW Police



FILE NUMBERS:
083068

HEARING DATES:
9 July 2008, 28 August 2008

SUBMISSIONS CLOSED:
12 September 2008



DATE OF DECISION:
6 February 2009

BEFORE:
Montgomery S - Judicial Member





LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996

CASES CITED:
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Bazouni and Ors v Commissioner of Police, NSW Police [2002] NSWADT 100
O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Wilson v Commissioner of Police, NSW Police Service [2002] NSW ADT 181
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

TEXTS CITED:


APPLICATION:
Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
M Vincent, barrister
RESPONDENT
C Zoppo, solicitor


ORDERS:
1. The decision of the Commissioner is set aside
2. The decision is made that Mr Mewburn is to be issued a category AB firearms licence.


Reasons for Decision:

REASONS FOR DECISION

Background

1 Mr Mewburn applied to the Commissioner of Police, NSW Police ('the Commissioner') for a Category AB Firearms licence under the Firearms Act 1996 ("the Act"). A delegate of the Commissioner refused the application.

2 In the reasons for the refusal provided by the delegate he referred to a number of incidents identified in the records held by the New South Wales Police and concluded that due to the seriousness of those incidents Mr Mewburn is not a fit and proper person to hold a firearms licence, nor would it be in the public interest for him to do so.

The internal review

3 Mr Mewburn sought an internal review of that determination. The internal review affirmed the original determination.

4 The reviewing officer made the following findings of fact:

That Mr Mewburn held a 'One-Shooter' firearms licence between 1994 and 1998;

That in 2001, in Queensland, Mr Mewburn was found guilty of committing the offence of 'Assault Occasioning Actual Bodily Harm' and ordered to be of good behaviour for a period of 12 months;

That in 2002 Mr Mewburn was found guilty of the offence of 'Contravene apprehended domestic violence order' pursuant to Section 10 of the Crimes (Sentencing Procedure) Act 1999;

That Mr Mewburn held a Category AB firearms licence from 29 August 2002 until it was suspended in June 2005. The suspension of his licence was lifted in August 2005. However, it was resuspended in January 2006 and subsequently revoked in October 2006;

That Mr Mewburn was involved in an 'on/off again' relationship with his de facto with whom he has two children;

That there is a history of domestic disputes between Mr Mewburn and his de facto; the most recent occurring on 2 February 2008;

That here is a history of disputes between Mr Mewburn and his neighbours.

That Mr Mewburn has been subject to Interim Apprehended Violence Orders protecting his de facto and his neighbours and that Mr Mewburn was the protected person in a recent AVO issued against one of his neighbours;

That there is no information indicating that Mr Mewburn has misused firearms.

5 The statement of reasons provided to Mr Mewburn in regard to the internal review determination sets out the issues that are of concern to the Commissioner. Those reasons, citations omitted, stated:

I have noted the issues raised by your solicitor in support of your application. In particular, consideration is afforded to the findings of the Orange District Court who quashed your conviction for the offence of 'Stalk/intimidate w/i to cause fear physical/mental harm'. Significant weight is also given to the withdrawal of the charge of 'Assault Occasioning Actual Bodily Harm' that was alleged to have occurred on 1 December 2005. In relation to this charge, it is noted that the victim in this matter, [your de facto], was later convicted of making false representations.

In addition, consideration was given to the fact that most other charges laid against you have either been dismissed or withdrawn. However, the Administrative Decisions Tribunal (ADT) held that the mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. In my view it is not uncommon for victims of domestic violence to later retract their statements out of fear of further repercussions. Moreover, it has been held that a determination which considers whether or not it would be in the public interest for a person to continue to hold a firearms licence is not contingent on a court result but rather on the person's actions.

In this regard, the numerous recorded events depict a volatile relationship between you and [your de facto]. As recently as two days ago police were called to attend your residence in relation to a domestic dispute where [your de facto] alleges that you threw an empty Jim Beam bottle at her which missed and hit the wall, leaving a dint in the door and that you had also repeatedly kicked a bed side table. It is reported that your two young children were present at the start of the domestic and that the victim had to call her mother to collect them. It is further reported that you would not allow the victim to leave the location or pack any of her belongings.

It has been held that firearms regulation is strict for obvious reasons including that firearms are often involved in domestic disputes and routinely cause death and disfigurement.

In addition to the domestic assault on 2 February, there are a number of other past recorded events (dating back to 2002) requiring police involvement that weigh heavy into the balance of competing interests. These events not only involve your de facto but also involve others including your neighbours. There is a record of a traffic infringement notice for doing a 'burnout' in your car (in the vicinity of school age children) when you had your young child in the car and there is a report of you making threatening statement to a police officer.

It is accepted that some of those allegations levelled against you, by your de facto, may have been falsely reported to police and in some events, it is also difficult to determine who the instigating party was and/or who was reporting the truthful version. In this regard, the ADT has held that: "Given the breadth of the Commissioner's discretion and the overriding object of public safety there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence".

In considering whether or not to issue a firearms licence the overriding consideration is that of ensuring public safety and improving public safety by imposing strict controls on the possession and use of firearms. Therefore, I hold the view that the numerous recorded events which depict a violent and unstable relationship with your de facto (no matter who the instigator) is not an environment which is conducive to the presence of firearms.

In a recent ADT matter to determine whether it was not in the public interest for the applicant to be issued with a firearms licence, they held that the tribunal must make that determination as at the date of hearing having regard to all the circumstances including what has occurred in the intervening period since the occurrence of the inappropriate conduct. Furthermore, the determination is protective in nature and not punitive. In this regard I note the most recent incident of domestic violence was two days ago.

Moreover, the ADT has held that any past and present conduct that may be relevant must be reviewed when deciding whether a person deserves the privilege of holding a firearms licence. In this regard, I accept the fact that you have previously held a firearms licence without any reports of misuse. I also accept the fact that you may not have always been to blame for the involvement of police. However, this ongoing disharmony surrounding you and your de facto has continued over the past six years. Further, given that you have children together it is reasonably assumed that your contact with your de facto will continue on some level. I am therefore properly concerned that the disharmony between you may very well escalate and it is in this context that I believe firearms should not be readily available.

In summary, out of the interests of the public (which includes your own safety), I am not satisfied that there is virtually no risk associated with granting you access to firearms until a sufficient incident free period of time has passed that would alleviate such concerns.

The external review

6 Mr Mewburn applied to the Tribunal for review of the Commissioner’s determination. In undertaking a review, the role of the Tribunal is to make 'the correct and preferable decision' having regard to the material before it including any relevant factual material and any applicable law.

Relevant legislation

7 Section 3 of the Act provides:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

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

(b) to improve public safety:

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

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

(c) to facilitate a national approach to the control of firearms.

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

...

8 The Commissioner’s determination was made pursuant to section 11 of the Act which provides:

11 General restrictions on issue of licences

...

(3) A licence must not be issued unless:

(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

...

(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

...

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

The Commissioner’s case

9 The Commissioner filed and served a copy of the police file in relation to Mr Mewburn’s licence. That file includes numerous Computerised Operational Policing System entries ("COPS entries") showing a long history of dealings between Mr Mewburn and the police. The Commissioner also relies on the statement and oral evidence of Constable Leanne Smith. Constable Smith appeared at the hearing by telephone and was subjected to cross-examination. The Commissioner also relies on the transcript of proceedings in the Local Court relating to charges of intimidation levelled against Mr Mewburn.

10 The Commissioner contends that the underlying principle of the Act emphasizes that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Where there has been or is a 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.

11 The Act imposes an obligation on the Commissioner, and therefore the Tribunal, to only issue a firearms licence when satisfied that the applicant is a fit and proper person and can be trusted to have possession of a firearm without danger to public safety or the peace.

12 Mr Zoppo submitted that in determining whether a person is a fit and proper person to hold a firearms licence regard must be had to the licensing scheme set out in the Act and the principles and objects of the Act. He referred to the consideration of what constitutes a 'fit and proper person in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. Justices Toohey and Gaudron stated at paragraph [63]:

"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."

13 At paragraph [36] in that decision Justices Toohey and Gaudron commented on the relationship of the term "fit and proper" and the activity in which the relevant person is engaged:

"36. 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."

14 Mr Zoppo also referred to the decision in the matter Wilson v Commissioner of Police, NSW Police Service [2002] NSW ADT 181 in which the Tribunal’s Deputy President considered an application in relation to the Act. She stated at paragraph [28]:

"In determining whether Mr Wilson is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his convictions (not merely to the convictions themselves) and the activities for which Mr Wilson’s fitness and propriety are being assessed."

15 Mr Zoppo submitted that pursuant to section 11(7) of the Act, the Commissioner may also refuse to issue a licence if he considers that issue of the licence would be contrary to the public interest. He referred to the High Court decision in O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 where, in a joint judgement, Mason CJ, Brennan J, Dawson J, and Gaudron, said at paragraph [13]:

".. the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be (pronounced) definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission, per Dixon J. at p 505."

16 The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:

"25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."

17 In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, Deputy President Hennessey found at paragraph [33] that the comments in Toleafoa were equally applicable in the context of the Firearms legislation.

18 Mr Zoppo submitted that a determination on whether it would be in the public interest for Mr Mewburn to hold a firearms licence is not contingent on a Court result such as an acquittal but rather on his actions arising out of the circumstances from the subject incident. He relies on Bazouni and Ors v Commissioner of Police, NSW Police [2002] NSWADT 100 as authority for the principle that the quashing of a conviction recorded in the Local Court does not mean that the Tribunal may not have regard to Mr Mewburn’s conduct in determining the application.

19 The Commissioner relies on a range of circumstances which he contends, when considered together, cast serious doubt on whether Mr Mewburn is a fit and proper person and or in the alternative that it would not be in the public interest to grant the licence he seeks.

20 Mr Zoppo submitted that Mr Mewburn’s evidence is to be afforded little weight. Mr Mewburn had difficulty recalling incidents that occurred a number of years ago. He had to rely on his memory supported by little if any contemporaneous records of incidents. Mr Zoppo argues that this is to be contrasted with the Commissioner's evidence that is supported by contemporaneous records maintained by the NSW Police. He says that the COPS entries that were made at the time or shortly after the incidents that they relate to should be afforded substantial weight.

21 The Commissioner contends that there is evidence that suggests that Mr Mewburn's firearms were not stored safely. Constable Smith gave evidence that Mr Mewburn's former partner took her to a locker in the laundry and told police that that was where Mr Mewburn stored his firearms. When the Constable inspected the locker it was empty. Contrary to Mr Mewburn's evidence, no household cleaning chemicals were found within the locker.

22 Mr Zoppo conceded that there were errors in Constable Smith’s COPS entries relating to a driving incident involving Mr Mewburn. In particular the Constable conceded that the duration of the spinning of Mr Mewburn’s tyres were more likely to be 3-4 seconds rather than the approximately 30 seconds recorded in the COPS entry.

23 Nevertheless, Mr Zoppo submitted that Constable Smith gave credible and reliable evidence of the incidents and that contemporaneous notes supported her evidence. Mr Zoppo submitted that while Mr Mewburn has denied the driving incident he did not suggest a reason why the Constable would lie on oath about it.

24 Mr Zoppo submitted that there are other facts that support the Commissioner’s submissions that Mr Mewburn is not a fit and proper person or in the alternative that it is contrary to the public interest to issue a firearms licence to Mr Mewburn. These include Mr Mewburn's criminal antecedents of:

(a) Dangerous Driving - in 2001 Mr Mewburn was fined $750.00 and disqualified for driving for 8 months.

(b) Assault Occasioning Actual Bodily Harm - in 2001 Mr Mewburn was placed on a 12 months good behaviour bond.

(c) Contravene Apprehended Violence Order – in 2002 an interim AVO was issued that prevented Mr Mewburn from approaching his then de facto and going within 100 metres from the premises at which she resided. Mr Mewburn return to the home in breach of the AVO. Cowra Local Court dealt with the breach by way of dismissal under section 10 of the Crimes (Sentencing Procedure) Act 1999.

(d) An incident on 1 December 2005 that resulted in an intimidation charge being brought against Mr Mewburn. The Local Court Magistrate found the offence of intimidation proved but it was subsequently dismissed by the District Court in Orange.

(e) The other COPS entries that detail the history of Mr Mewburn's interaction with his former partner, the community and Police. The COPS entries detail a range of instances when Mr Mewburn has been subject of police attention or has made complaints to the Police. Mr Zoppo submitted that a common theme amongst the COPS entries is one of confrontation and allegations of violence involving Mr Mewburn with his former partner and other members of the community. It is submitted that all of the COPS entries are relevant in considering the two grounds on which the Commissioner states the Application should not be granted a licence.

25 The Commissioner acknowledges that Mr Mewburn has in his favour a history of holding a firearms licence without an offence against the Act. However, the Commissioner contends that Mr Mewburn has in the past acted in a dangerous and irresponsible manner and that he has threatened and intimidated people, including Constable Smith.

26 It is the Commissioner's submission that the evidence does not allow the conclusion that Mr Mewburn is a fit and proper person and that he can be trusted to have possession of a firearm without danger to public safety or the peace. The Commissioner further contends that the Tribunal cannot be satisfied that there is virtually no risk associated with the granting of the licence to Mr Mewburn and accordingly, that the correct and preferable decision is to refuse the application and affirm the decision of the Commissioner.

Mr Mewburn’s case

27 Mr Mewburn asserts that he has a long history of responsible use of firearms, and no history of irresponsible use of firearms. He also submitted that his criminal history does not involve any convictions in matters which of their nature give rise to a reasonable apprehension of misuse of firearms. In fact, he submits, most charges against him have been dismissed or withdrawn.

28 Mr Vincent, counsel for Mr Mewburn, submits that the question for the Tribunal is whether the Tribunal would have confidence that Mr Mewburn would not pose a risk to public safety if the licence were granted.

29 Mr Mewburn relies on his own evidence. He provided a written statement and also appeared at the hearing, gave oral evidence and was cross-examined. He disputes much of the material contained in the COPS reports on which the Commissioner relies. He provided evidence that contradicts significant aspects of that material. Mr Mewburn accepts that his manner is ‘blunt’, that he doesn’t hide his emotions and that he is ‘sometimes hard to deal with’. However he contends that he has always been very aware of firearm safety and that he always secured his firearms safely.

30 Mr Mewburn concedes that the relationship with his former partner was troubled on occasion. He accepts that this situation brought him and his former partner to the attention of the police on several occasions. He contends that his former partner was suffering from psychological problems that resulted in many of those difficulties and he provided medical evidence in support of that contention. However, his evidence is that he has removed himself from that domestic situation. Similarly, he has moved away from his former neighbours.

31 Mr Vincent submitted that there was no escalation of those difficulties over time, such as to give rise to a fear that there might be any escalation to a situation where firearms would be misused. He submits that there are no additional public interest considerations.

32 Mr Vincent relies on a number of decisions of this Tribunal in support of his contention that the Tribunal could be satisfied that Mr Mewburn would not pose a risk to public safety if the licence were granted. He contends that the Commissioner's submissions in regard to Bazouni do not correctly state the position in two respects. Firstly, he argues that Bazouni did not consider the public interest ground (see paragraph [67]). Secondly, he says that the principle expressed and adopted in Bazouni is that a conviction in itself is ordinarily insufficient to enable an adverse finding on fitness and propriety; the person's conduct, not the fact of the conviction, is to be considered. He submits that the it does not follow that alleged conduct, where a conviction has been dismissed, can be relied upon in the same way as conduct underlying a conviction.

33 Mr Vincent contends that the mere fact of Mr Mewburn's dangerous driving offence would not lead to a conclusion that such conduct was not that of a "fit and proper" person to possess a firearm. He argues that a driving offence gives no insight as to whether firearms can be possessed by the person without danger to public safety. He also argues that on the basis of Mr Mewburn evidence in regard to the Queensland offence of assault occasioning actual bodily harm, no such conclusion would be reached.

34 With respect to the issue of Mr Mewburn's 2002 Interim AVO contravention Mr Vincent submits that rather than demonstrating a disregard for the AVO, the circumstances demonstrate a lack of comprehension of the situation. He argues that Mr Mewburn is not literate and the COPS entry records that he is said to have stated "he was not aware that he wasn't allowed to attend those premises". He submits that the Local Court did not regard the conduct giving rise to the offence as serious and that the Commissioner has conceded that to be the case.

35 Mr Vincent submits that the findings of the Local Court in regard to the events of 1 December 2005 that lead to the intimidation charge against Mr Mewburn have little probative and great prejudicial value. Mr Vincent submits that the mental state of crucial witnesses meant that their evidence was of no probative value. Mr Mewburn obtained the right to have a full merits review undertaken by the District Court, however the Crown chose not to lead evidence to maintain the conviction and it was quashed. Mr Vincent argues that there is an inherent unfairness in the Crown now seeking to rely on evidence that by its own conduct in the District Court proceedings, it had avoided being directly challenged.

36 He submits that Bazouni does not stand for the proposition that assessment to be made of a person's conduct in relation to a conviction whether or not the person is convicted. The capacity is to look behind the conviction, but to do so is premised on there being a conviction.

37 Mr Vincent submits that no adverse inference should be drawn from the evidence of Constable Smith in regard to the empty locker. Mr Mewburn's evidence on this point is that the locker was not used to store his firearms but merely used to keep harmful household cleaning chemicals away from his children. Mr Mewburn's evidence was that his former partner was not aware of where he stored his firearms and Mr Vincent submits that she may have removed the chemicals from the locker prior to Constable Smith’s attendance.

38 Mr Vincent referred to Constable Smith’s concession that she was suffering a stressed state of mind at the time of the tyre-spinning incident and that she had overstated the period of time involved. He submits that even on the version of events given by Constable Smith, the circumstances only amount to a relatively minor traffic offence of "burnout" of short duration. The Constable did not issue an infringement notice until 11 days had passed and she did not consider it as warranting some more serious charge. Mr Vincent says that Constable Smith’s allegation that Mr Mewburn gave her a short defiant stare over his shoulder as their vehicles moved away from one another is no more than a complaint by Constable Smith about her perception of the look on Mr Mewburn's face.

39 Mr Mewburn denies that he threatened Constable Smith at the police residence a few days later. Mr Vincent submits that the COPS record in relation to the allegation may be inconsistent with the allegation that he did so. He says that the Tribunal should be cautious in attributing much weight to Constable Smith's impressions of Mr Mewburn' s manner. Constable Smith was suffering a great deal of mental stress over that period of time, and she acknowledged that this affected her performance of her duties.

40 While Mr Vincent concedes that concern about domestic and/or family circumstances may properly be the subject of assessment of an individual’s fitness to be given a licence, the incidents on which the Commissioner relies should carry little if any weight in assessing of whether Mr Mewburn is a fit and proper person, or issues of public interest. He says that the Commissioner has overstated the significance of the individual incidents. They have arisen in regard to a family feud that has been occurring over some time. Mr Mewburn has removed himself from that situation and the Commissioner has not made any submission that Mr Mewburn's current way of living or domestic circumstances invoke consideration under section 11(4)(a).

41 Mr Vincent submits that the best indicator of whether there is virtually no risk to public safety or peace is Mr Mewburn's responsible use of firearms over many years (despite some trying domestic and family circumstances in the past), and that there is nothing in Mr Mewburn's criminal and traffic infringement history that gives rise to any concern as to risk to public safety or peace if a firearms licence was again held by him.

Findings

42 The issue to be determined is whether or not the correct and preferable decision is that Mr Mewburn should be granted the licence that he is seeking.

43 The Commissioner’s decision to refuse to grant the licence was based on a significant amount of material. In particular the Commissioner points to numerous COPS entries that show a history of confrontation and allegations of violence involving Mr Mewburn and his former partner and other members of the community. I agree with the Commissioner’s view that this material gives cause for concern that there would be increased risk to public safety or peace if Mr Mewburn were allowed to possess firearms. However, having heard the evidence offered by each of the parties I have formed the view that the risk is minimal.

44 The commissioner has not contested Mr Mewburn's account of the Qld incidents that resulted in charges for assault and traffic offences. If Mr Mewburn's account is accepted, that aspect of his history does not give rise to concern as to such risk. In the circumstances, I accept Mr Mewburn's evidence and I agree with Mr Vincent’s contention that the mere fact of those offences should not lead to a conclusion that Mr Mewburn is not a "fit and proper" person to possess a firearm.

45 In my view, the more recent incidents are of more significance in determining the issue of whether the correct and preferable decision is that he should be granted the licence.

46 Mr Mewburn has disputed the accuracy of many of the COPS entries to which the Commissioner has referred. His memory is poor in relation to many of the other incidents to which the COPS entries refer. In my view it is probable that those COPS entries provide a reasonable account of the incidents brought to the attention of the Police.

47 I agree that I should be cautious in attributing much weight to Constable Smith's impressions of Mr Mewburn' s manner. In light of Constable Smith’s evidence that she was suffering a great deal of mental stress that affected her performance of her duties over a period of time, I accept Mr Mewburn's evidence in regard to the traffic incident where it is alleged that he did a 'burnout' in his car and threatened Constable Smith. I accept that it is likely that Constable Smith misinterpreted Mr Mewburn's as a consequence of her mental state at the time.

48 I also accept Mr Mewburn's evidence as to the storage of his firearms and in this regard I do not draw any negative inference in relation to the storage locker.

49 There is no doubt that Mr Mewburn has been a party to troubled relationships in recent years. These have included both his domestic relationship and his relationships with other members of the community. On Mr Mewburn’s own evidence it could be concluded that his manner is ‘blunt’ and he is ‘sometimes hard to deal with’. Over an extended period there were heated arguments between Mr Mewburn and his former partner. The evidence suggests that this was linked to psychological problems that his former partner was suffering but it is likely that Mr Mewburn had his own difficulties in dealing with that situation. The evidence suggests that Mr Mewburn has also reacted badly to other stressful situations. It seems to me that he would benefit from some form of therapy focussing on conflict and anger management. Unless he develops better skills to deal with stressful situations it seems likely that he will continue to come to the attention of the police.

50 Nevertheless, I accept that Mr Mewburn has removed himself from his former domestic situation and his former neighbours. There is no evidence to suggest that new issues have arisen since he has made those changes.

51 In my view the Tribunal may have regard to Mr Mewburn’s conduct in determining the application. I do not agree with Mr Vincent’s submission that the Tribunal has no capacity to look behind charges brought against an applicant unless there has been a conviction. There are many circumstances where a court will find a fact proven but not proceed to a conviction or where the criminal standard is not met and a matter is dismissed. In my view it is open to the Tribunal to take conduct into account notwithstanding that there has been no conviction. However, I agree with Mr Vincent that in the circumstances of this matter it would be unfair to take account of evidence given in the Local Court. The value of the evidence given in the Local Court was in doubt. Mr Mewburn obtained the right to have a full merits review in the District Court but he did not have the opportunity to respond to the allegations brought against him and the Local Court decision was quashed. For this reason I do not give any weight to the allegation of intimidation against Mr Mewburn.

52 In determining whether the correct and preferable decision is to issue a firearms licence the overriding consideration is that of ensuring public safety. The public's right to safety must outweigh an individual's privilege to possess and use a firearm.

53 Mr Mewburn’s fitness and propriety are being assessed for the purposes of the possession of a firearm. There is no suggestion that any of the incidents to which the Commissioner has referred have involved mishandling of firearms. The evidence before me suggests that Mr Mewburn has always had a responsible attitude to firearms and is well aware of the need for safety and proper security of firearms.

54 While I think it is probable that Mr Mewburn will continue to come to the attention of the police unless he changes his approach to dealing with stressful situations, I do not think that he is likely to resort to using firearms in an unlawful manner. I am satisfied that Mr Mewburn is a fit and proper person to hold a licence and that he can be trusted to have possession of a firearm without danger to public safety or the peace. In my view, there is virtually no risk associated with granting Mr Mewburn access to firearms. It follows that the licence should be granted.

Decision

1. The decision of the Commissioner is set aside

2. The decision is made that Mr Mewburn is to be issued a category AB firearms licence.