Conway v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 183

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Conway v Commissioner of Police, NSW Police Force [2023] NSWCATAD 183

Hearing dates:

17 November 2022; 23 March 2023

Date of orders:

17 July 2023

Decision date:

17 July 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – licensing – firearms – revocation of licence – whether the Applicant may not personally exercise continuous and responsible control over firearms - public interest

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Cases Cited:

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234

Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

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

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

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

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117

LY v Commissioner of Police, NSW Police [2004] NSWADT 115

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

Minister for Immigration and Citizenship v Li [2013] 297 ALR 225

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

Shi v Migration Agents Registration Authority [2008] HCA 31.

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

Category:

Principal judgment

Parties:

Steven Conway (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
J Fahey (Applicant)
J Chenhall (Respondent)

Solicitors:
Foott, Law & Co, Solicitors (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/00121811

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Steven Conway (“the Applicant”) for review of a decision by a delegate of the Commissioner of Police (“the Respondent”) to revoke the Applicant’s Category AB firearms licence. The decision was made under the Firearms Act 1996 (“the Act”) based on concerns in regard to the Applicant’s mental health.

2. The Applicant was granted his firearms licence in November 2018, for the genuine reasons of for recreational hunting on rural land. The licence was to expire in November 2023. However, it was revoked in January 2022.

3. The grounds for revocation related to an incident that occurred on 21 May 2021 (“the May 2021 incident”). Police attended the Applicant’s property as a result of a report that he was displaying unusual behaviour. It was reported that he had stated that he had been a member of the French Foreign Legion; and that he had served in the military, making 470 confirmed kills. In addition, it was reported that he had been observed pacing the house at all hours of the night, rambling and muttering to himself and that there had been periods where he had not slept for days at a time.

4. Police formed the view that it was possible that the Applicant was suffering from an acute mental health condition. Police suspended his firearms licence and seized his firearms. The licence was subsequently revoked.

5. The revocation was affirmed on internal review and the Applicant has applied to the Tribunal for external review.

Role of the Tribunal

6. These are not adversarial proceedings in which the Applicant carries an onus of proof. By making the application, the Applicant triggers a process of merits review by the Tribunal. He does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove her case. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities.

7. Section 75(1)(c) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent’s decision pursuant to section 9 of the Administrative Decisions Review Act 1997 (“the 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.

8. 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. In an application for review the tribunal is not restricted to a 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

9. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner’s decision and, specifically, whether it is contrary to the public interest for the Applicant to hold a licence under the Act.

10. The Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence, primarily because of concerns that the Applicant may not personally exercise continuous and responsible control over the firearms.

Applicable provisions in the Act

11. The underlying principles of the Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides:

(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.

12. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter and the Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]:

[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...

13. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if she considers that issuing of the licence would be contrary to the public interest.

14. 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.

15. 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”.

Public interest

16. As noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. 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. The “public interest” allows issues going beyond the character of the Applicant to be considered. These may include concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

18. “Public interest” embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation 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 decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.

19. In considering the public interest, regard must be had to the underlying principle of the Act. The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. The Tribunal must give proper, genuine, and realistic consideration to each of the relevant matters. A decision maker should not shy away from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph [22].

20. The public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements.

21. As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at paragraphs [24] to [25]:

24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the “overriding need to ensure public safety”: Firearms Act s 3(1)(a). Public safety is improved by “imposing strict controls on the possession and use of firearms” and by “promoting the safe and responsible storage and use of firearms”: Firearms Act s 3(1)(b). The objects of the Act include “to establish an integrated licensing and registration scheme for all firearms;” “to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;” and “to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms”: Firearms Act, s 3(2)(b), (c) and (d).

25. In that statutory context it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. ...

22. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP 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. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].

23. 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 considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

Continuous and responsible control over firearms

24. The Respondent contends that the Applicant may not personally exercise continuous and responsible control over firearms.

25. Section 11(4)(a) of the Act provides:

11 General restrictions on issue of licences

…

1. 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

26. The term "reasonable cause to believe" in this context was considered by the Administrative Decisions Tribunal in the matter of LY v Commissioner of Police, NSW Police [2004] NSWADT 115. Judicial Member Higgins stated at paragraphs [41] - [43]:

1. The term “reasonable cause to believe” has been considered by the courts in contexts other than those the subject of this application. For example, in the context of discovery under Order 15A, Rule 6 of the Federal Court Rules, in Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013, BC 200305547, Emmett J stated:

   “[10] There is no dispute as to the nature of the task that arises under r6(a). The words, ‘where there is reasonable cause to believe that the application has or may have the right to obtain relief’ are not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief. It is not necessary to demonstrate whether or not the applicant has the belief”.

2. In New South Wales v Taylor (2001) 178 ALR 32, the High Court considered the term “no reasonable cause to believe” as it appears in s.151A(5) of the Workers Compensation Act 1987 (NSW). At [15] of the joint judgment of Gleeson CJ, McHugh and Hayne JJ, they stated:

   “It is true that the notion of ‘reasonable cause’, although often used in legal instruments, is an awkward expression. A cause is a cause is a cause. Beliefs about causes may be reasonable, but causes are neither reasonable not unreasonable. They are facts even if, as current legal doctrine insists, they often involve value judgments.”

3. In my opinion, the abovementioned principle in Taylor and test enunciated by Emmett J in Austrac equally applies in that the Tribunal, as was the Commissioner, must objectively be satisfied, from established facts of the matters set out in paragraph 24(2)(a) of the Act. These matters are that LY’s domestic circumstances are such that she may not personally exercise continuous and responsible control over her firearm.

   27. In my view, to have "reasonable cause to believe" there must be more than mere suspicion or conjecture.

Material before the Tribunal

28. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act. This material includes a number of records held in the Respondent’s electronic database (“COPs”). Senior Constable William Amos provided a statement, attended the hearing, and was cross-examined. Ms Kathryn Barker of Katalyst Counselling, the Applicant’s counsellor, was summonsed to give evidence. Ms Barker attended the hearing and was cross-examined. The Respondent also relies on Ms Barker’s counselling notes.

29. The Respondent’s solicitors also provided written and oral submissions.

30. The Applicant relies on his own evidence and a psychological report from Richard Miller who attended the hearing and was cross-examined. The Applicant attended the hearing, gave evidence and was cross-examined. The Applicant’s solicitors also provided written and oral submissions.

The Respondent’s case

31. Ms Chenhall, on behalf of the Respondent, relied on the material contained in the brief of evidence filed and served as provided for by section 58 of the ADR Act. That material included a copy of the COPs entry in respect of the May 2021 incident. S/C Amos was the author of that COPs entry. So far as is relevant, that incident report states:

Police attended the location and spoke with the [Applicant], who was again amicable about the situation. He stated to police that he served in the military, but was adamant that he did not suffer from PTSD. When questioned by police about his military service, he initially stated that it was 'classified' and refused to tell police what branch he served in. After some time, he eventually stated that he had served undercover with the French Legion and that they were aware of his whereabouts at all times. He stated that he had killed over 400 people including children in his service and was suffering from this experience.

Throughout speaking with the [Applicant], police formed the opinion that he clearly suffered from delusions and paranoia as part of his mental illness and formed the opinion that he is not a fit and proper person to hold a Firearms Permit or have access to firearms. As a result, police advised the [Applicant] that they would be seizing his firearms and ammunition immediately, and that his licence would be suspended immediately, and requested that he surrender it to police.

In relation to his apparent mental illness issues, as the [Applicant] did not appear to be a danger to himself, made no threats of harm to himself or anyone else, and as he was in company of the NOK who can care for him, police did not contact paramedics. Police did suggest to the [Applicant] and the NOK that an appointment be made with the [Applicant’s] GP for a referral for his ongoing mental health treatment.

The [Applicant] surrendered his Firearms Permit without issue and provided police access to his safe to seize his firearms and ammunition. Whilst this occurred, the [Applicant] admitted that police seizing his firearms was 'for the best’ because he was not in a good mental state. ...

Senior Constable William Amos

32. S/C Amos provided a statement in which he recounted the May 2021 incident. His statement reflects the COPs entry related to the incident.

33. S/C Amos attended the hearing and gave evidence. His evidence was consistent with his statement and the COPs entry, and it was not varied under cross-examination. Under cross-examination he stated that there is no body-worn camera footage of the attendance at the Applicant’s property on 21 May 2021. He confirmed that at the time he attended the Applicant’s property he had already been made aware of the French Foreign Legion killing allegations and he said that he was concerned that the Applicant had firearms. He was scared that there was an unsecured firearm on the property. He said that he found the Applicant’s demeanour concerning because the Applicant was overly calm and put up no resistance.

Kathryn Barker

34. Ms Barker, of Katalyst Counselling, has been a counsellor since February 2018. She has been the Applicant’s counsellor since April 2021. A typical counselling session lasts for about an hour. Her goal in a counselling session is to build rapport and create a safe environment in which the client feels comfortable to share. She said that the Applicant appeared honest and open from the beginning.

35. Ms Barker’s notes recorded that in June 2021 the Applicant had talked about his experience in the French Foreign Legion. She said that he came across as telling the truth. He had indicated that it was highly confidential work. She accepted what he had told her as the truth.

34. She said that her approach in counselling involves a lot of active listening, and that the Applicant shared the information about the work without being asked. In August 2021 the Applicant had told her that the information he had given to her about his experience in the French Foreign Legion was fiction. Up until then the Applicant had not given any indication that it was not true. He told her that the fiction had begun 10 years earlier when he was with his first wife. Ms Barker could not recall what details he had given her to explain how the fiction had developed.

35. She did not accept that the Applicant was reluctant to admit that he considered that he saw attending counselling as a sign of weakness. She said that he felt relieved to be able to admit that the French Foreign Legion story was fiction. She thought that prior to August 2021 the Applicant had believed it was true. She saw it as a step of growth in his self-awareness. He had reached the stage of being truthful. He described it as like emerging from a fog.

36. The Applicant had informed her that he was seeing a psychologist.

37. Ms Barker agreed that her notes only referred to the French Foreign Legion on two occasions. However, she did not agree that she would have recorded any other discussion about it if they had occurred. She said that she would not necessarily have done so.

The Applicant’s case

40. The Applicant relies on his own evidence and the evidence of his psychologist, Mr Richard Miller.

The Applicant’s evidence

41. The Applicant provided a statement and gave oral evidence. As noted, he held a firearms licence that was revoked due to allegations that he had mental health issues. This followed an interaction with Senior Constable Amos in May 2021.

42. The Applicant gave evidence of a former abusive relationship which he said became very toxic. He said that his partner was very aggressive and that resulted in him feeling somewhat worthless and helpless. As a coping mechanism he made up a persona to give himself strength to deal with his partner's behaviour. He would give himself strength by envisaging that he was a member of the French Foreign Legion. That allowed him to deal with matters that were concerning him. He did not use any physical actions and he avoided verbal confrontation as often as he could. It provided an ability to distance himself from his partner's behaviour and it gave him strength to deal with her. He said that he and his partner split up about 12 years ago.

43. In May 2021 the Applicant was in a relationship with a different partner. He said that they had been in a relationship for about 6 months and that she was particularly manipulative, opportunistic, verbally aggressive and a liar in many day-to-day aspects of her life. He separated from her in June 2021. He presumes that she or her son made a report about his alleged behaviour and presumes that it was her report that gave rise Senior Constable Amos' COPS entry. He said that he sought counselling from Ms Barker due to the effects of this relationship.

44. After the relationship that ended in June 2021, he entered a relationship with someone who was an alcoholic. As a non-drinker, he found that to be an extremely trying time in his life and he sought assistance from professionals. He saw a GP and was prescribed medication. He was prescribed Effexor and he is in the process of weaning himself off that medication.

45. In relation to Senior Constable Amos' COPS entry, the Applicant agreed that he told Senior Constable Amos that he served in the French Foreign Legion, and it was classified. He said that it was a poor decision. He said that he knows it is not true but says that it was a technique that he used as a crutch to give himself strength to stand up to things that were said to him and to his daughter.

46. His evidence is that he does not believe that he was in the French Foreign Legion. He denied that he told Senior Constable Amos that he killed 470 people including 2 children or that he could or had killed someone from a distance of a kilometre. He said that he does clay-target shooting which is a recreational activity that involves using of a firearm but that he is not a very good shot.

47. He denies that he told Senior Constable Amos or anyone else that he had killed anyone.

48. In relation to the allegation that he would pace around the house at night, he said that he suffers from carpal tunnel syndrome and has done so for many years. He said that it is very painful and on rare occasions it wakes him in the night. If that is the case, he sometimes has to shake his hands out to get the blood flow going. He denies that he was muttering to himself.

49. He said that he co-operated with Senior Constable Amos in relation to him entering his property. He said that he was trying to explain about not being in a mentally good place but that Senior Constable Amos did not appear to be listening. He said that he was not, and never alluded to anything near the mental state described in the COPS Event. He said that he agreed that his firearms should be removed for 28 days until the facts could be assessed. He only agreed to that because he thought that everything would go back to normal at the end of that period.

50. He said that he used the firearms for vermin control on his rural property and for clay-target shooting. He said that there have been no breaches of his firearms licence and the guns were stored appropriately in a safe in accordance with the legislation.

51. Under cross-examination the Applicant disputed some of the details contained in the COPs record. He maintains that he claims much of it is factually incorrect. He did not accept that he made the comments about killing people that are attributed to him. He also disputed that comments related to his mental health. He said that the comment that seizing his firearms was 'for the best’ because he was not in a good mental state has been taken out of context.

52. His recollection was not good when questioned in regard to whether some the details contained in Ms Barker’s counselling records and could not recall whether he had made the comments regarding the French Foreign Legion that are attributed to him.

53. The Applicant agreed that he had commented to Ms Barker that his dignity is linked with his firearms and that not having his firearms has caused collateral damage to his integrity. He agreed that recovering his firearms is his focus.

54. He accepts that he has been prescribed anti-depressant medication and that he has been taking the antidepressant medication Effexor. He sought this assistance in circumstances where difficulties in his relationship were causing him distress.

55. The Applicant agreed that he had consulted Mr Miller in order to get a report as part of the process to recover his firearms. He also agreed that Mr Miller had recommended that he seek psychological help, but he had not yet done so.

Richard Miller

56. Mr Miller has been a psychologist for about 40 years. He saw the Applicant for three meetings that each lasted for about an hour. They also had several short telephone conversations. The Applicant engaged Mr Miller for assessment as he sought to regain his firearms licence.

57. Mr Miller administered the Personality Assessment Inventory (“the PAI”) in August 2022. The Applicant’s scores suggest that he participated appropriately in the assessment and that his clinical profile is within normal limits. Based on the Applicant’s self-reporting, no significant problems were identified in the following areas: unusual thoughts or peculiar experiences; antisocial behaviour; problems with empathy; undue suspiciousness or hostility; extreme moodiness and impulsivity; unhappiness and depression; unusually elevated mood or heightened activity; marked anxiety; problematic behaviours used to manage anxiety; difficulties with health or physical functioning. Mr Miller also indicated that the Applicant’s self-concept “appeared to involve a reasonably stable and positive self-evaluation”. He described approaching life with a clear sense of purpose and distinct convictions, with a well-articulated sense of who he is and what his goals are.

58. In regard to the COPs entry, Mr Miller reported:

As the COPS E83336086 document is in dispute little could be taken from it for this assessment. Mr Conway’s presentation at interviews was of a clear thinking, intelligent and emotionally stable man. He has been under considerable pressure in recent times with a Family Court matter, the firearms licence issue and a business to run. He has had the assistance of antidepressants but otherwise successfully navigates life including beginning a new relationship. The results of the PAI support this clinical assessment. Mr Conway presents with no evidence of significant psychopathology.

The fantasy Mr Conway developed as a protective factor appears no longer fit for purpose. It has been used by others to make judgements without further input by Mr Conway or clinical assessment. Mr Conway presents with no evidence of being a danger to himself or others.

59. Mr Miller’s report concluded:

Mr Conway be restored his firearms licence.

Mr Conway be offered psychological support to replace fantasy with more functional coping tools.

60. Under cross-examination Mr Miller stated that he was not aware that the Applicant’s relationship with his wife had ended 12 years ago. He also stated that he would be extremely concerned if it was shown that the Applicant had told a number of other people that he had served in the French Foreign Legion.

Consideration

61. It is necessary to consider the question of whether there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of his way of living. This issue relates to the Applicant’s use of a fantasy as a coping mechanism to deal with various stresses in his life. The fantasy involved envisaging that he was a member of the French Foreign Legion.

62. It is alleged that the Applicant had stated that he had been a member of the French Foreign Legion; that he had served in the military, making 470 confirmed kills including 2 children; and that he could or had killed someone from a distance of a kilometre.

63. The Applicant’s evidence is that he made up a persona to give himself strength to deal with his ex-partner's behaviour. He stated that he and his ex-partner had separated over 12 years ago.

64. The Applicant’s counsellor, Ms Barker, has been the Applicant’s counsellor since April 2021. Her notes recorded that in June 2021 the Applicant had talked about his experience in the French Foreign Legion. It was not until August 2021 that the Applicant had told her that the story of his experience in the French Foreign Legion was fiction.

65. Ms Barker said that the Applicant came across as telling the truth and thought that the Applicant had believed that the French Foreign Legion fantasy was true.

66. It is not clear whether the Applicant had discussed the French Foreign Legion fantasy on more than two occasions. Ms Barker said that she would not necessarily have recorded any other discussion about the matter if they had occurred.

67. It is not in dispute that Police attended the Applicant’s property in May 2021. That attendance was in response to a report that the Applicant had stated that he had been in the French Foreign Legion and had talked about killing in that role.

68. Senior Constable Amos attended the Applicant’s property on that occasion. A COPS record of the incident records that the Applicant told the Police officers who attended, including S/C Amos, about his French Foreign Legion experience and that he was suffering from the experience.

69. The Applicant concedes that talked about his French Foreign Legion experience, but he denies that he told S/C Amos or anyone else that he had killed anyone. There is no recording of the conversation between the Applicant and the Police officers who attended. S/C Amos said that he found the Applicant’s demeanour concerning.

70. Mr Miller is a psychologist who was consulted by the Applicant for the purposes of these proceedings. The Applicant engaged Mr Miller for assessment as he sought to regain his firearms licence. He administered tests to assess the risks associated with the Applicant’s firearms licence application. He concluded that the Applicant presented with no evidence of significant psychopathology.

71. Mr Miller was not aware that the Applicant’s relationship with his ex-wife had ended 12 years ago and the length of time that the Applicant had continued to rely on the French Foreign Legion scenario as a coping mechanism. Mr Miller also stated that he would be extremely concerned if it was shown that the Applicant had told a number of other people that he had served in the French Foreign Legion.

72. Mr Miller recommended that the Applicant be offered psychological support to replace the French Foreign Legion fantasy with more functional coping tools.

73. The Applicant stated that he had not followed the approach that Mr Miller had recommended.

74. The difficulty that the circumstances of this matter poses is that the Applicant has disputed the details of the information that he is said to have given to others in regard to his French Foreign Legion fantasy. In my view it is more significant if he had told others that he had made 470 confirmed kills including 2 children and that he could or had killed from a distance than if he had merely stated that he had served in the French Foreign Legion.

75. On the evidence before me I am satisfied that it is probable that the Applicant has told a number of other people that he had served in the French Foreign Legion. On his own evidence he has been relying on that coping mechanism for more than twelve years. I accept that he told Ms Barker and S/C Amos. It is probable that over a period of years he has told others as well. Mr Miller has indicated that this would cause him to be extremely concerned.

76. In my view there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of these circumstances.

77. The Applicant agreed that he has been prescribed and has been taking anti-depressant medication. I have no evidence to explain what, if any, affect that medication might have on the use of firearms.

78. The Applicant agreed that recovering his firearms is his focus. He also agreed that he had consulted Mr Miller in order to get a report as part of the process to recover his firearms. He agreed that he had not followed Mr Miller’s recommendation in regard to getting psychological support to replace the French Foreign Legion fantasy with more functional coping tools.

79. In these circumstances, it is my view that before the licence could be issued the Applicant would need to obtain evidence to show that his anti-depressant medication would not present any risk to the public should he have the use of firearms. He would also need to obtain further evidence to address the concerns that Mr Miller expressed in regard to adopting more functional coping tools. There is a need for this further evidence before I could be satisfied that there is virtually no risk to the public if the Applicant is given access to firearms.

80. On the material that is before me, I agree with the Respondent that the correct and preferable decision is that the Applicant's application should be refused. Therefore, the decision should be affirmed.

81. It is a matter for the Applicant whether or not he obtains additional evidence. If he does obtain it and reapplies for a licence, and is able to satisfy the Respondent that there is virtually no risk to the public if he is given access to firearms, he may achieve a different outcome.

Orders

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: 17 July 2023