Catt v Commissioner of Police, NSW Police Force

Case •

[2023] NSWCATAD 154

•

16 June 2023

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Catt v Commissioner of Police, NSW Police Force [2023] NSWCATAD 154
Hearing dates: 12 April 2023
Date of orders: 16 June 2023
Decision date: 16 June 2023
Jurisdiction:Administrative and Equal Opportunity Division
Before: K Mobbs, Senior Member
Decision:

The decision under review is affirmed.

Catchwords:

LICENSING –firearms – revocation of licence – mental health -public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Firearms Act 1996

Cases Cited:

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657

Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9

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

Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89

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

Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206

McDonald v Director-General of Social Security (1984) 1 FCR 354

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

O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210

Shi v Migration Agents Registration Authority [2008] HCA 31

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

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

Texts Cited:

Nil

Category:Principal judgment
Parties: John Catt (Applicant)
Commissioner of Police, NSW Police Force (Respondent)
Representation: Hartmann & Associates (Applicant)
Maddocks Lawyers (Respondent)
File Number(s): 2022/00362231
Publication restriction: Nil

REASONS FOR DECISION

Background

  1. Mr John Catt (the Applicant) applied to this Tribunal on 1 December 2022 (the Application) for review of a decision by the Commissioner of Police, NSW Police Force (the Respondent) on 12 September 2022 to revoke his Category AB firearms licence (firearms licence). The Applicant was granted his firearms licence on 8 April 2021, with an expiry date of 20 May 2023, for the genuine reasons of sport/target shooting and recreational hunting/vermin control.

  2. The grounds for revocation related to an incident that occurred on 25 July 2021 (2021 Incident) that raised concerns about the Applicant’s mental health and ability to safely possess and use a firearm. As a consequence, the Applicant’s firearms licence was suspended by the Respondent on 27 July 2021 and his firearm seized. The Applicant’s firearms licence was subsequently revoked.

  3. The Applicant applied for an internal review of the Respondent’s decision on 12 October 2022 and was granted an extension of time to submit material, which he did. The Applicant then filed his Application in the absence of an internal review decision. On 6 March 2023, by consent, Principal Member Simon made orders that included the matter being remitted to the Respondent for reconsideration.

  4. On 9 March 2023, an internal review decision was made by the Respondent which affirmed the decision to revoke the Applicant’s firearms licence. The Application was heard by the Tribunal on 12 April 2023. No issue was raised in respect of the Tribunal’s jurisdiction to hear the matter.

Applicable legislation

  1. The general principles and objects of the Firearms Act 1996 (the Act) are set out in s 3 as follows:

(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 supply of firearms,

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

(f)  …

  1. Section 11 of the Act relevantly 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

...

(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.

  1. Section 24 of the Act sets out the various grounds on which a licence may be revoked and include the following:

(2)  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

…

(d)  for any other reason prescribed by the regulations.

  1. Clause 20 of the Firearms Regulation 2017 (the Regulation) provides that “[t]he Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence”.

The evidence

  1. Mr Kable, the solicitor for the Applicant indicated that the Applicant relied on a number of documents contained in the Respondent’s s 58 documents, including the material submitted on his behalf in relation to the request for an internal review. The Applicant also relied on a letter from Ms Ling Gao dated 11 April 2023 (exhibit A1). Mr Kable sought to call Ms Gao to give evidence by mobile telephone. Whilst Ms Gao responded to the Tribunal’s call to her, there were communication difficulties and Mr Kable indicated that he no longer required her to give oral evidence.

  2. A character reference from Mr Michael Otes dated 15 October 2022 was provided by the Applicant for the internal review and was contained in the s 58 documents. The Applicant relied on a further character reference from Mr Otes dated 18 February 2023 and this was admitted into evidence during oral submissions from the parties (exhibit A2). The Applicant gave evidence and was cross-examined.

  3. The Respondent did not call any oral evidence and relied on the s 58 documents (exhibit R1), the documents in the Supplementary bundle of documents (exhibit R2), the statement of Constable Anna Gaydon dated 3 April 2023 (exhibit R3) and the internal review decision dated 9 March 2023 (exhibit R4).

Submissions

  1. Mr Kable made oral submissions at the hearing on behalf of the Applicant. In summary, it was submitted that the Applicant had been honest and candid in his evidence and about what occurred on the day of the 2021 Incident. It was submitted that the 2021 Incident was a one off incident and unlikely to occur again. It was acknowledged that the character references provided by the Applicant were general references only and it was a question of the weight to be given to them. Mr Kable referred to the length of time that the referees had known the Applicant and submitted that as a result they had some intrinsic value. Mr Kable referred to the material from the Applicant’s general practitioner, Dr Andrew Small and the report from Mr Kruger-Davis, a very experienced psychologist. It was submitted that the Applicant can be entrusted to have his firearms licence returned and this is supported by the report of Mr Kruger-Davis.

  2. Written submissions were filed on behalf of the Respondent on 21 March 2023 and oral submissions were made at the hearing by Mr McGovern, who appeared on behalf of the Respondent. In brief, it was submitted that the Applicant came to the attention of Police in July 2021 due to a mental health incident arising from the use of cannabis and that the Applicant’s evidence included a number of factual inaccuracies. The Respondent submitted that the correct and preferable decision is for the Tribunal to affirm the decision of the Respondent to revoke the Applicant’s firearms licence.

  3. In oral submissions, Mr McGovern referred to the Applicant’s evidence and submitted that there were inconsistencies in his evidence about his drug use. Mr McGovern submitted that it was clear from the decision to revoke the Applicant’s firearms licence that the Applicant’s mental health was the central issue of concern and that the Applicant had not disclosed this incident to his referees. Given that the character references did not speak to this central issue, it was submitted that they should be afforded very limited weight or no weight at all. It was submitted that the report from Mr Kruger-Davis is entirely based on self-reporting by the Applicant, and this should limit the weight to be given to the report by the Tribunal.

  4. It was submitted that there were a number of contradictions between the Applicant’s account and that of Constable Gaydon, with a further gloss arising from the cross-examination of the Applicant. It was submitted that the Tribunal could not be satisfied on the evidence that the return of the Applicant’s firearms licence was warranted.

Role of the Tribunal

  1. Section 75(1)(c) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent’s decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (ADR Act). Section 63 of the ADR Act provides that in determining an application for review, the tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP consideration of the material that was before the decision maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

Issues

  1. The Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence, primarily for the following reasons:

  1. Concerns about the Applicant’s mental health relating to the 2021 Incident

  2. Conflicting factual evidence regarding the 2021 Incident and the Applicant’s use of prohibited drugs.

Public Interest

  1. The phrase “public interest” is not defined in the Act. In O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the “public interest” imported 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 legislation might require. In Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety 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.

  1. The concept does include standards acknowledged to be for “the good order of society and for the well-being of its members”: Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, 681, the High Court said:

The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner’s consideration. The effect of the reference is to amplify the “scope and purpose” of the legislation.

  1. The issue of public interest allows for matters going beyond the applicant’s character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33]. In the present context and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety. The Applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.

  2. In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].

  3. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" at [7].

  4. Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".

Intelligence Report Summary

  1. The Respondent relied on an Information Report Summary showing an Event date from 19 May 2008 to 12 February 2009 (part exhibit R2) that related to both the Applicant and a named female referred to as working illegally. Whilst the Information Report Summary was heavily redacted, the Narrative referred to a letter received by DIMA that said the Applicant and the female had met in a brothel and after that time had carried out certain activities that were detailed in the report. The Information Report Summary referred to the female and the Applicant co-habiting at that time, together with a number of other females, in the same unit now occupied by the Applicant.

  2. There was no further evidence adduced from the Respondent in relation to this Information Report Summary. In cross-examination, the Applicant accepted that the Information Report Summary contained his name and date of birth but denied knowing the female named in the report or having done any of the things referred therein, describing the report as “absolute nonsense.” His evidence was that whilst he had lived in his current building since 2008, he had only lived in his current unit, located upstairs, since 2010. Prior to that he had resided in the downstairs unit. He said he believed that someone had got the units mixed up as he had been living downstairs in a single room in 2008 and 2009 and since 2010 has lived in the upstairs unit which has three rooms. His evidence was that there was a common entrance at the back of the building to both units.

  3. In re-examination, the Applicant’s evidence was that for some of the time that he lived in the downstairs unit, he had lived there with his partner Ling Gao, who he later married. The Applicant works as a television camera operator and states that he met Ms Gao, at a wedding that he was shooting. He said that he used to shoot weddings in addition to his television work.

  4. As referred to previously, a statement from Ms Gao was tendered on behalf of the Applicant (exhibit A1) and she ultimately did not give evidence. In her statement she said that she lived with the Applicant in the single room downstairs unit before they moved to the upstairs unit in 2010. She said that they continued to live there until their relationship broke down in 2020. She could not recall the exact dates that they lived in the downstairs unit, but the period was “2008/2009”.

  5. I accept the evidence from both the Applicant and Ms Gao that they resided together in the downstairs unit in the 2008 to 2009 period and only moved into the upstairs unit, referred to in the Information Report Summary, in 2010. In light of this evidence, and in the absence of any supporting evidence in relation to the events outlined in the Information Report Summary, I am not satisfied to the relevant standard that the Applicant had any involvement in the events outlined in that document. Accordingly, I give the Information Report Summary no weight in my determination.

The 2021 Incident

  1. The primary reason for the Respondent’s revocation of the Applicant’s firearms licence was concern about the Applicant’s mental health arising from the 2021 Incident.

Evidence in relation to the 2021 Incident

  1. The Respondent relied upon COPS Event Reference Number E 81316870 (part exhibit R1) (25 July 2021 COPS Event) and the statement from Constable Anna Gaydon. Constable Gaydon was not required for cross-examination and did not give oral evidence.

  2. In her statement, Constable Gaydon records that at approximately 1:15 pm on 25 July 2021, Police received a triple zero call. She stated that the Computer Aided Dispatch (CAD) Incident recorded at the time of the call included the following information:

ENTER VIA THE BACK LANE…INFT IS WITH A MALE NAMED JOHN CATT WHO HAS BEEN ASSAULTED – THE POIS ARE STILL AT THE ADDRESS AND ARE POSS ABT TO ASSAULT FURTHER PEOPLE – INFT WILL MEET THE POL AT THE RF OVAL… – INFT DOESN’T KNOW THE POIS.

  1. Constable Gaydon states that at approximately 1.30 pm on 25 July 2021, she arrived at an address with Constable Gibbs in response to the triple zero call. She and Constable Gibbs spoke to the caller in person who said words to the following effect: “I called on behalf of a guy who I don’t know. He told me his name was Mr Catt and that he had been assaulted. He returned to his unit…” The caller then gave the Officers the Applicant’s address. Constable Gaydon stated that the 25 July 2021 COPS Event completed by Constable Gibbs records this information as relating to “Mr Carr”.

  1. Constables Gaydon and Gibbs then approached the unit and located the Applicant, who requested the Officers go inside his residence to talk in private. Constable Gaydon states that while walking to the unit, the Applicant said words to the effect of “I wasn’t assaulted. I thought my daughter may have been kidnapped and was worried for her safety.” Constable Gaydon asked why he thought that she had been kidnapped and the Applicant responded “[t]he voices told me.”

  2. Constable Gaydon subsequently contacted the Applicant’s daughter by telephone who advised that everything was okay and expressed concerns for her father’s mental health status during this time. Constable Gaydon then asked the Applicant whether hearing voices was a normal thing for him, and he responded “I’ve never heard voices before. I think I should seek help from a mental health professional.” Constable Gaydon told him that they had a program called PACER operating out of Redfern Police Station that offered assistance for mental health issues. When asked if he would like to speak to someone from the program, the Applicant said “yes.”

  3. Constable Gaydon arranged for the station PACER to attend and whilst waiting, she stated that the Applicant said words to the following effect: “I smoked marijuana earlier today and had a beer this morning. That probably contributed to this episode”. Shortly afterwards, an officer from PACER arrived at the location and spoke to the Applicant at length about the incident. Constable Gaydon stated that the Applicant was referred to the Camperdown Crisis Team for further treatment and that the Applicant also agreed to visit his local GP in Redfern the following Monday morning to discuss the issue.

  4. The 25 July 2021 COPS Event indicates that Constables Gaydon and Gibbs were present for about an hour. The Narrative details were created at 16:16 on 25 July 2021. The Incident Type was described as “Mental Health Act” with associated factors stated as “mental illness related” and “alcohol related” with the victim drinking “prior to.” The Applicant’s level of intoxication was described as “not affected” and the place of the last drink was recorded as home/private residence.

  5. The Applicant provided a statutory declaration attaching a letter dated 20 October 2022 (part exhibit R1) for consideration in the internal review of the decision to revoke his licence. In his oral evidence before the Tribunal, the Applicant said he stood by this letter and was cross-examined in relation to it. In the letter, the Applicant provides a “true account of activities leading up to the seizure of [his] Registered Firearm on July 29 2021”.

  6. In the letter the Applicant states that it was a weekend like many others in 2021 and that Covid restrictions were playing havoc on his work commitments, so he was at home. He was concerned about the welfare of his daughter, a registered psychologist, who lived interstate and was having relationship troubles with her then partner and the Applicant was anxious to check up on her. He said that repeated attempts to call her failed as she did not answer her phone.

  7. The Applicant stated that about the same time he was also having a beer or two and his downstairs neighbour invited him down for a chat, a beer and as it turned out, a “smoke.” The Applicant stated that “[a]s a non smoker of what was indeed Marijuana I can only say that it had a profound affect on me.” He stated that following this time, and again being unsuccessful in calling his daughter, he somehow “imagined” that harm had come to her. He stated that he subsequently called the Police Emergency Line stating that he suspected harm had come of her.

  8. The Applicant said that the Police duly arrived together with a Police Psychologist and a lengthy interview followed. It was only at the end of this that one officer asked if the Applicant owned a firearm. The Applicant said that he did and that it was locked in its safe. He then stated that on 29 July 2021, officers from Mascot Police knocked on his door and seized his registered .22 rifle. No ammunition was present.

  9. The Applicant said in his letter that he honestly believed that what happened on the day in question was a “one off” occurrence as he does not take drugs of any kind and simply fell foul of a social interaction with a neighbour. He stated that there was no ill intent and only a major concern for his daughter. The Applicant indicated that the firearm was an inherited piece from his father who brought it out from the United Kingdom in 1951 having previously been in the British Red Berets Army Parachute Regiment. The Applicant said his intention in registering the rifle, (which his father never did) was to do the right thing by the law and enjoy target shooting with a couple of like- minded mates.

  10. In cross-examination, the Applicant confirmed that he was not a smoker of marijuana and that it was a one off incident. When asked if he had ever used drugs in the past, the Applicant stated that possibly he had done so in his youth but had not done so regularly since his early twenties.

  11. The Applicant again referred to himself as having called the Police in relation to the 2021 Incident and referred to having had a “panic attack”. He stated that he had seen his general practitioner on the Monday after the incident who prescribed him something to calm him down but that he felt fine within 12 hours and did not take the medication. He stated that he was perfectly fine to hold a firearms licence.

  12. Mr McGovern asked the Applicant about the part of his letter where he stated that he somehow “imagined” that harm had come to his daughter. The Applicant stated that this was part of the “panic attack” after he had repeatedly made phone calls to his daughter with no answer. He said that at that time he was “losing the plot a little” and that is when the Police arrived with a psychologist.

  13. The Applicant was asked about Constable Gaydon’s statement where she referred to a triple zero call being received by police indicating that the Applicant had been assaulted. The Applicant said that this was not correct. When asked if he had made the triple zero call, the Applicant said that he had asked a person in the street to make the call and that he “might” have said that he felt threatened. The Applicant was asked if it was possible given that he had alcohol and had smoked cannabis that he may have imagined that he had been assaulted. He said that this was a possibility as he was concerned about his daughter. He said that nothing like this had ever happened to him before and that it was quite scary. When asked why his daughter would have had concerns about the Applicant’s mental health status, he said that it was possibly because of the whole Covid thing, the fact that he wasn’t working and that he had a few personal relationship problems.

  14. The Applicant relied upon a report from Michael Kruger-Davis, a psychologist dated 18 July 2022 (part exhibit R1). In the report under the heading “Background Information”, Mr Kruger-Davis sets out a number of points that include the following, namely that the Applicant:

  • Stated that prior to the incident that involved marijuana and alcohol, he has never experienced auditory, visual or olfactory hallucinations.

  • Denied delusions and disassociations.

  • Does not smoke but vapes but is contemplating quitting this as well.

  • Drinks occasionally and does not self-medicate.

  • Does not take illicit drugs or marijuana on a regular basis and stressed that the incident on 25 July 2021 was the only time he had ever tried it. He also stressed that the experience was very scary and negative and that he doesn’t ever want to go through that experience again.

  1. Mr Kruger-Davis referred to a letter from the Firearms Registry dated 8 June 2022. This letter was a request to the Applicant from the Firearms Registry for a doctor’s assessment (part exhibit R1). The letter contains a one paragraph description of the 2021 Incident as follows:

Information held by the NSW Police Force, specifically COPS Event E 81316870 [the 25 July 2021 COPS Event], states that on 25 July 2021, police responded to your residence after receiving a report expressing concern for your welfare. Police advised you had them (sic) your daughter had been kidnapped. When questioned further about this, you advised the police that voices had told you. You stated that you felt you should seek held form (sic) a mental health practitioner.

  1. Mr Kruger-Davis stated in his report that he asked the Applicant about this incident and the Applicant told him that he was drinking heavily with his neighbour. His neighbour provided him with marijuana, which he smoked. The next day he was feeling anxious because he had not been able to contact his daughter for several days. He became more anxious and contacted the Police to track her down because he was anxious about her safety. He realised now he was having a panic attack.

  2. Mr Kruger-Davis reports that the Applicant advised that when the Police attended his house, they turned up with a psychologist who sent him to a general practitioner who prescribed him Valium for the anxiety. The Applicant stated that by this time he felt better and decided not to take the Valium that was prescribed. The Applicant was not referred to the mental team at the local hospital or was Accessline (NSW Health Mental Health Service referral service) contacted. Mr Kruger-Davis reported that that the Applicant was clear to point out that he was concerned for his daughter. There were no threats, or reasons for threats and no firearms were involved.

Consideration of 2021 Incident

  1. There are a number of inconsistencies between the accounts provided by the Applicant and the account of the events that is set out in the 25 July 2021 COPS Event and in the statement from Constable Gaydon. The Applicant has stated on a number of occasions, including in his letter dated 20 October 2022; in his evidence before the Tribunal; and in his statements to Mr Kruger-Davis, that he telephoned Police on 25 July 2021 as he suspected harm had come to his daughter. When asked about the triple zero call in cross-examination, the Applicant stated that he asked a person in the street to make the call to the Police. He conceded that he might have told that person that he felt threatened.

  2. The 25 July 2021 COPS Event and the statement from Constable Gaydon both refer to a triple zero call being received by Police at approximately 1.15 pm on that day. The name of the caller is redacted in the 25 July 2021 COPS Event. In her statement, Constable Gaydon records that she and Constable Gibbs met the caller in person before proceeding to the Applicant’s residence and being invited to go in to speak to speak to the Applicant privately. Constable Gaydon was not required for cross-examination and her statement was admitted without objection.

  3. It was not contested that prior to the Police attending his residence, the Applicant had consumed alcohol and smoked marijuana and reported hearing voices. In light of this, and in circumstances where no challenge was made to Constable Gaydon’s statement, and where the 25 July 2021 COPS Event was created on the same day as the 2021 Incident, I prefer Constable Gaydon’s account of the 2021 Incident over that of the Applicant and in all instances where the two accounts differ, I accept the evidence of Constable Gaydon over that of the Applicant.

  4. Accordingly, and having regard to the 25 July 2021 COPS Event, I find that a third party made the triple zero call to Police rather than the Applicant, and that the call was made as the result of the Applicant telling the caller that he had been assaulted. I also find that the Applicant told Constable Gaydon that he had smoked marijuana earlier that day and had a beer that morning. I also find that the officer from PACER arrived sometime after Constables Gaydon and Gibbs arrived at the Applicant’s home and did not arrive with them. I find that after a lengthy discussion between the officer from PACER and the Applicant, the Applicant was referred to the Camperdown Crisis Team for further treatment and that this was in addition to the Applicant agreeing to visit his local doctor to discuss the incident.

  5. There is no reference in either the 25 July 2021 COPS Event or in Constable Gaydon’s statement to any discussion in relation to the Applicant’s firearm or his firearms licence. The Notice of Suspension is dated 27 July 2021 (part exhibit R1), two days after the 2021 Incident and records that the Applicant’s firearm licence was suspended on the grounds of “Mental Health Concerns – Not in the Public Interest”. The COPS Event Reference E 82760808 (part Exhibit R4) was created on 27 July 2021 and refers to urgent police assistance being required to seize the Applicant’s firearms and to serve a Notice of Suspension. It also refers to the actions taken by the Police on that day.

  6. It was not contested by the Applicant that on 29 July 2021, he was issued with the Suspension Notice and his firearm was seized as was his firearms licence. It was not in dispute that the firearm had been unregistered following the death of the Applicant’s father and for a period of time after it came into the Applicant’s possession. It was also not in dispute that at the time that the firearm was seized, it was registered. The COPS Report relating to the seizure, records the Applicant as saying that he understood and was expecting this following the “incident on the weekend.” Having regard to this evidence, I find there was no discussion on 25 July 2021 between the attending officers and the Applicant in relation to his firearm.

  7. I do not accept the submissions on behalf of the Applicant that he was honest and candid in his evidence about what occurred on 25 July 2021. Whilst some of the inconsistencies in the Applicant’s accounts can perhaps be explained by the Applicant’s consumption of alcohol and marijuana prior to the 2021 Incident, I find that the Applicant was not completely frank in his account of the 2021 Incident to Mr Kruger-Davis or in his evidence before the Tribunal.

  8. As referred to above, the Applicant has provided varying accounts of the events leading up to the 2021 Incident. The Applicant told Constable Gaydon on 25 July 2021 that he had smoked marijuana earlier that day and a beer that morning. In his letter of 20 October 2022, he says that about the same time as he was trying to contact his daughter he was “also having a beer or two” and that his downstairs neighbour invited him down for a chat, “a beer” and as it turned out, a ”smoke”. Mr Kruger-Davis records that the Applicant stated that he was “drinking heavily with his neighbour” and that his neighbour provided him with marijuana which he smoked. Mr Kruger-Davis records that the “next day” the Applicant was feeling anxious because he had not been able to contact his daughter for “several days.”

  9. The Applicant reported to Mr Kruger-Davis that he drinks “occasionally” and that “he does not drink alcohol excessively.” This self-report is somewhat at odds with the Applicant’s account in his letter dated 20 October 2022 of drinking one to three beers prior to 1:15 pm on 25 July 2021, as well as with his account to Mr Kruger-Davis that he was drinking heavily with his neighbour the previous day.

  10. In his letter of 20 October 2022, the Applicant stated that he was a non-smoker of marijuana and told Mr Kruger-Davis that he does not take illicit drugs or marijuana on a regular basis and stressed that the 2021 Incident was the only time he had ever tried marijuana. In cross-examination the Applicant said that he had “possibly” taken drugs in his youth but not regularly since. He then agreed that this “possibly” included using marijuana in the past. In his evidence, the Applicant stated that he had smoked a joint with the fellow downstairs but did not provide details as to how much he smoked or how it was that he came to accept the offer of marijuana on that occasion. Whilst the Applicant told Constable Gaydon that he had smoked marijuana and had a beer and that he believed it contributed to the episode, he made no reference to it being the first time that he had used marijuana.

  11. Constable Gaydon’s uncontested evidence is that after the Applicant told her that he thought that his daughter had been kidnapped, she contacted the Applicant’s daughter by telephone and that his daughter advised her that everything was okay and expressed concerns for her father’s mental health status during that time. Constable Gaydon’s statement does not refer to the Applicant reporting any difficulties in contacting his daughter or to any reason for his concern for her other than the voices and I find that he did make any such statements to her.

  12. The only evidence before the Tribunal that the Applicant was worried about his daughter because she was having relationship difficulties and was not answering his calls comes from the Applicant. The Applicant did not provide these details on 25 July 2021 and only referred to them after the 2021 Incident and has provided inconsistent accounts in relation to the time frames involved. Constable Gaydon did not refer to any difficulties in reaching the Applicant’s daughter and stated that the Applicant’s daughter indicated that she was okay but expressed concerns about the Applicant’s mental health.

  13. There has been no evidence adduced to support the Applicant’s claims about his attempts to contact his daughter, such as phone records or statements from his neighbour or from his daughter. I find that the Applicant has provided inconsistent accounts in relation to his concerns about his daughter, and this, coupled with his references to having “imagined” harm to his daughter and his “panic attack” are an attempt by him to minimise the objective seriousness of the 2021 Incident.

After the 2021 Incident

  1. The 2021 Incident clearly raises concerns about the Applicant's mental health at that time. The Applicant told Police that he thought he should seek help from a mental health practitioner and the Applicant’s daughter, a registered psychologist, expressed concerns for his mental health status. Whilst there is no evidence from the officer from PACER before the Tribunal, the uncontested evidence from Constable Gaydon was that following a lengthy discussion with that officer about the incident, the Applicant was referred to the Camperdown Crisis Team for further treatment as well as following up with his doctor.

  2. The Applicant provided a number of documents from his general practitioner, Dr Andrew Small, for consideration in the internal review and these consisted of a one page Urine Drug Analysis carried out on 6 June 2022 and two letters dated 8 June 2022 and 4 October 2022 (part exhibit R1). The Urine Drug Analysis indicates “ “Neg” for a series of substances including “cannabinoids.” In the absence of any medical evidence relating to this test or the circumstances in which the test was conducted, I give no weight to this document.

  3. The letter from Dr Small dated 8 June 2022 is addressed “to whom it may concern” and states that the Applicant, “a long term patient has shown no evidence of drug or substance use over the years of his care”. The letter then states “Thank you for your care and assistance. I look forward to hearing the outcome of John’s attendance.”

  4. There is a further short letter from Dr Small dated 4 October 2022 with a heading at the top stating “SENIOR MEMBER OF THE TRIBUNAL = ADDUCATOR”. The letter begins with Dr Small saying “Thank you for seeing [the Applicant], age 69 yrs 2 mths, for opinion and management.” The presenting problem is stated to be fitness to hold a firearm. Dr Small then states that the Applicant has been known to his practice for three and a half years since 24 September 2019 and in that time, he has always found the Applicant to be “of good character, free of psychological or psychiatric illness, and with no evidence of substance misuse.” Dr Small states that the Applicant’s chances of reoffending are negligible given his history based on his several consultations with him.

  1. The letter dated 8 June 2022 appears to have been written on the same date as the letter from the Firearms Registry requesting that the Applicant obtain a Doctor’s assessment but does not refer to that letter. The 4 October 2022 letter, refers to the Tribunal but was written approximately two months prior to the Application being filed with the Tribunal and also includes a thank you for seeing the Applicant for “opinion and management.”

  2. The 8 June letter refers to the Applicant being a long term patient but does not specify the period of time that the Applicant had been a patient of Dr Small. Dr Small’s 4 October 2022 letter refers to the Applicant having been known to him and his practice for three and a half years, since 24 September 2019. The period of time between 24 September 2019 and 4 October 2022 is only three years and approximately two weeks rather than the three and a half years referred to by Dr Small and as of 8 June 2022, it would appear that the Applicant had only been known to Dr Small and the practice for some two years and nine months. It is not clear how either of these periods could lead to the statement in Dr Small’s letter of 8 June 2022 that the Applicant was a “long term patient” of his.

  3. It is also not clear what the purpose of either letter was, or who the intended recipients of the letters were. The report of Mr Kruger-Davis refers to an email from the Applicant to his solicitor Mr Kable on 7 July 2022 stating that he had received a referral to a local psychologist from his GP that morning. The date of this email is after Dr Small’s letter dated 8 June 2022 and prior to his letter of 4 October 2022. Accordingly, neither letter from Dr Small can be the referral to a local psychologist that the Applicant is referring to in his email of 7 July 2022.

  4. In any event, it is not clear from either of Dr Small’s letters on how many occasions Dr Small had consulted with the Applicant or the basis for the views that Dr Small was expressing. There is no reference in either letter to the 2021 Incident or the consultation that the Applicant says that he had with his general practitioner on the day following the 2021 Incident. In circumstances where Dr Small did not give evidence, where the purpose of his two letters is not clear and where both letters are extremely brief and contain no detail as to the basis for the views he is expressing, I find that the letters do not assist the Tribunal and I give them no weight.

  5. Mr Kruger-Davis did not give oral evidence and was not cross-examined. His report clearly sets out the material relied upon by him in reaching his opinion and refers to the “Reason” noted on the letter dated 8 June 2022 from the Firearms Registry. Mr Kruger-Davis then sets out the paragraph in that letter that refers to the Information held by the Police in relation to the 2021 Incident and I have previously set out this paragraph in full above.

  6. As previously noted, Mr Kruger-Davis also sets out the background information provided by the Applicant including that the Applicant drinks alcohol occasionally, that he does not drink alcohol excessively, that the Applicant had only ever tried marijuana on 25 July 2021, that he had been drinking heavily and smoking marijuana the day prior to the 2021 Incident and that he was feeling anxious because he had not been able to contact his daughter for several days and that it was the Applicant who contacted Police to track her down. It does not appear from his report that Mr Kruger-Davis was advised that the Applicant had been referred on 25 July 2021 to the Camperdown Crisis Team for further treatment.

  7. In responding to the NSW Firearms Registry Risk Assessment Questions, Mr Kruger-Davis opined that the possible diagnosis for this incident was alcohol and/or cannabis intoxication with perceptual disturbances. Mr Kruger-Davis advised the Applicant that if he avoids cannabis or poly substance abuse in the future, he is unlikely to experience another episode. Mr Kruger-Davis said that he had discussed the matter with Dr Small and that Dr Small agreed with his formulation and agreed that if the Applicant refrained from using cannabis, there would likely be no further episodes.

  8. Based on the assessments and interviews with the Applicant, Mr Kruger-Davis expressed the view that the Applicant is fit and proper to possess and use firearms and that is very unlikely to pose a threat to the public or himself, if he were to possess or use firearms. Mr Kruger-Davis also noted that in his expert opinion, when the Applicant answered questions regarding his background, the concerns the NSW Police raised in the refusal of his application and the mental status examination and suicide risk assessment, he found the Applicant’s narrative to be truthful and honest and he could not detect any indications of any intent to deceive or otherwise influence the substantive effect of his report.

  9. Mr Kruger-Davis noted in his report that he has not been treating the Applicant but was contacted by him to assess his mental health status. Mr Kruger-Davis records in his report that he had an introductory telephone conversation with the Applicant on 12 July 2022 and a telehealth video-conference with him on 14 July 2022. Mr Kruger-Davies also recorded that he provided the Applicant with a number of self-reporting mental health questionnaires which were returned to him on 14 July 2022 and had a telephone with Dr Small on 18 July 2022. He also had access to the letter from the Firearms Registry dated 8 June 2022. There is no evidence that Mr Kruger-Davis had any further conversations or video-conferences with the Applicant or that he has ever met him in person.

  10. The date of Mr Kruger-Davis’s report is 18 July 2022 and was clearly finalised prior to Constable Gaydon’s statement dated 3 April 2023. There is no reference in the report to the 25 July 2021 COPS Event and it is not listed under the heading “Sources of Information.” As discussed previously, the letter from the Firearms Registry dated 8 June 2022 only contained a brief summary of the 2021 Incident that did not provide details of the triple zero call or the Applicant’s report to that caller that he had been assaulted.

  11. Mr Kruger-Davis did not give oral evidence and was not cross-examined. In circumstances where a number of the Applicant’s statements to Mr Kruger-Davis as outlined above, are either inconsistent with other accounts given by the Applicant, or have not been accepted by the Tribunal, it is not clear what effect this would have on the opinions reached by Mr Kruger-Davis in his report. Accordingly, I give little weight to the report from Mr Kruger-Davis or to the opinions expressed by him therein. Whilst Mr Kruger-Davis makes reference to his discussions with Dr Small, no evidence has been adduced from Dr Small as to his knowledge of the 2021 Incident and no details of his consultations with the Applicant have been provided. Accordingly, I give no weight to Mr Kruger-Davis’s references to Dr Small’s views in this matter.

  12. As a result, the cause of the Applicant’s mental health issues on 25 July 2021 and the risk of recurrence are not clear. I accept that by 1.15 pm on Sunday, 25 July 2021, the Applicant had already drunk a quantity of beer and smoked cannabis, but it is not clear how much alcohol and cannabis he had consumed. The Applicant has provided inconsistent versions in relation to both the amount and the time frames in relation to his drinking beer and smoking the cannabis. No evidence has been adduced from his downstairs neighbour who drank beer with the Applicant and who is said to have provided him with the cannabis.

  13. The Applicant “stressed” to Mr Kruger-Davis that the incident on 25 July 2021 was the only time that he had tried marijuana. However, the Applicant did not tell Constable Gaydon on that day that it was the first time that he had used marijuana and in cross-examination before the Tribunal, he said that he had possibly used drugs, including marijuana, in his youth.

  14. The Applicant has stated that he believes that this event was a “one off” occurrence. The Applicant has provided three character references from two friends, Mr Otes and Mr Ulrich. The first reference from Mr Otes states that he has known the Applicant for over 50 years and that they met in high school. He states that the Applicant has demonstrated to him that he is acutely aware of the risks and moral obligations of owning a firearm and has prepared accordingly. The second reference from Mr Otes is dated 18 February 2023 and is consistent with the previous reference.

  15. The reference from Mr Ulrich states that he has known the Applicant since the early 80’s and found the Applicant to be dependable, responsible and honest and that he has no hesitation in recommending the Applicant in his forthcoming application. Of note, neither of the Applicant’s referees make reference to the 2021 Incident or refer to the Applicant’s firearms licence being revoked. Whilst Mr Otes refers to the Applicant’s use of firearms, the reference from Mr Ulrich does not and refers only to the Applicant’s forthcoming application.

  16. In cross-examination, the Applicant said that he had told both referees that the reference was for use in relation to obtaining his firearms licence. He gave evidence that he did not want to go into the “nitty gritty” with them and that it was purely a character reference. He agreed that neither referee addressed the primary issue of the Applicant’s mental health because they did not know the “nitty gritty” of the matter. Neither referee refers to the Applicant’s mental health or to his use of alcohol or drugs. In circumstances where neither referee was aware of the detail of the 2021 Incident, did not refer to it and where it is not apparent that either referee was even aware of the 2021 Incident, the character references provide very little assistance to me in determining the issues in this matter and I give the references very limited weight.

Conclusion

  1. Accordingly, the Tribunal is left with the objective facts of the 2021 Incident that I have previously found. The Applicant has provided inconsistent accounts to Constable Gaydon, to Mr Kruger-Davis and in his evidence before the Tribunal both in relation to the 2021 Incident and the events leading up to it. I have previously found that he has attempted to minimise the seriousness of the matter. Further, in circumstances where the Applicant’s firearms licence had been revoked by the Respondent due to mental health concerns, the Applicant did not tell his referees the “nitty gritty” of the 2021 Incident and it is not clear whether they were even aware of the incident.

  2. Mr Kruger-Davis opined that the likely diagnosis for the 2021 Incident was alcohol and/or cannabis intoxication with perceptual disturbances and that if the Applicant refrained from using cannabis in the future, there would likely be no further episodes. However, for the reasons outlined above, I give little weight to Mr Kruger-Davis’s report or to the opinions expressed within it.

  3. In the 25 July 2021 COPS Event, the reason for the 2021 Incident was recorded by Police as mental illness related and alcohol related. There is no evidence that he told Dr Small, or any health practitioner, that he had been referred to the Camperdown Crisis team for further treatment following the 2021 Incident and there is no evidence that he attended the Camperdown Crisis Team for treatment. There is no evidence of any discussion that the Applicant had with Dr Small, or any medical practitioner, about the 2021 Incident and whilst the Applicant told Mr Kruger-Davis in July 2022 that the experience was very scary and negative, there is no evidence that he sought or received any treatment from any health practitioner following the 2021 Incident, other than being prescribed “calm me down” medication that he did not take.

  4. The underlying principles of the Act include confirming that firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety. The only evidence from health practitioners as to the Applicant’s risk in holding a firearms licence comes from Mr Kruger-Davis and Dr Small, and for the reasons outlined above, I give little to no weight to the opinions expressed by them. Accordingly, on the current evidence I am not satisfied that the Applicant is able to possess and use firearms with virtually no risk to public safety.

  5. Having regard to the evidence and the findings that I have made; I am satisfied that it is not in the public interest for the Applicant to hold a firearms licence at this time. I note that in any event, the Applicant’s Category AB firearms licence issued on 8 April 2021 would have expired on 20 May 2023. The Applicant is not precluded from applying for a firearms licence in the future.

Orders

  1. The decision under review is affirmed.

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


Registrar

Decision last updated: 16 June 2023

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