DWH v Commissioner of Police, NSW Police Force

[2019] NSWCATAD 125

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DWH v Commissioner of Police, NSW Police Force [2019] NSWCATAD 125

Hearing dates:

29 April 2019

Date of orders:

21 June 2019

Decision date:

21 June 2019

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

N S Isenberg RFD, Senior Member

Decision:

(1)   The Commissioner’s decision under review is set aside.

 

(2) I direct that if, after the publication of this decision, DWH applies for a licence under the provisions of the Firearms Act 1996, the Commissioner shall have regard to this decision.

 (3)   No application for costs having been made, having regard to s 60 of the CAT Act, each party is to pay their own costs of the proceedings.

Catchwords:

MERITS REVIEW – revocation of firearm licence - public interest - fit and proper person – attempt to commit suicide - mental health issues - psychiatric and psychological evidence.

  CONFIDENTIALITY - marital dispute - nature of allegations by and against the Applicant – young children – interests of unrepresented persons.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Firearms Act 1996 (NSW)
Firearms Regulation 2017 (NSW)

Cases Cited:

AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5
Aubrey v Commissioner of Police [2005] NSWADT 266
Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11
Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61
Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Constantin v Commissioner of Police [2013] NSWADTAP 16
Fulton v Commissioner of Police, NSW Police Force [2015] NSWCATAD 150
Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127
Rapisarda v Commissioner of Police, NSW Police Force; Housego v Commissioner of Police, NSW Police Force; Sheehy v Commissioner of Police, NSW Police Force; McDonald v Commissioner of Police, NSW Police Force [2018] NSWCATAD 34
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Wilkinson v Commissioner for Police [2002] NSWADT 59

Texts Cited:

Nil

Category:

Principal judgment

Parties:

DWH (Applicant)
Commissioner of Police, New South Wales Police Force (Respondent)

Representation:

Counsel:
A Douglas-Baker (Respondent)

  Solicitors:
Bainbridge Legal (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2018/00308094

Publication restriction:

Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, access to and publication of the following shall be restricted to the parties and their legal representatives.(i) the name of DWH,(ii) the recording, whether written, electrical or aural, of the hearing held on 29 April 2019,(iii) evidence given before the Tribunal, and matters contained in documents lodged with the Tribunal or received in evidence or as submissions by the Tribunal; and(iv) any part of any paragraph of these reasons which commences [NOT FOR PUBLICATION] other than the words in brackets. They are not for publication or release to any other person.

REASONS FOR DECISION

Introduction

1. DWH held a firearms licence which was revoked on 21 March 2018 by a delegate of the Respondent (the Commissioner) on the grounds that the Applicant made a serious attempt at self-harm by attempting to hang himself following an argument with his wife, and the delegate held concerns as to DWH’s ability to exercise continuous and responsible control over firearms. The delegate also stated he held serious concern in relation to DWH’s wife and the general public as a result of DWH’s “deteriorating mental health issues and aggression“.

2. In accordance with the Applicant’s request, an internal review was conducted of the revocation decision. The reviewing officer determined that it was not in the public interest for DWH to continue to hold his licence and affirmed the revocation decision.

3. DWH applied to the Tribunal for an administrative review of the Commissioner’s decision to revoke his licence (the Application). For the reasons set out below I am not satisfied that it is against the public interest for DWH to hold a firearms licence and I set aside the revocation decision.

Background

4. [NOT FOR PUBLICATION]

5. DWH was charged on 4 April 2013 with steal property of master / employer (the first charge) and on 28 November 2013 with steal property as a clerk/servant and goods suspected stolen (the second charge). The Commissioner submitted at [12] “The circumstances occasioning the [licence] … suspension related to [DWH] having been charged” with the above offences.

6. [NOT FOR PUBLICATION]

7. [NOT FOR PUBLICATION]

1. information from DWH’s treating psychiatrist, Dr Karen Williams dated 21 July 2017 led to the Internal Reviewing officer’s opinion that “… information provided from Dr Williams indicates a risk to public safety regarding [DWH’s] access to firearms”;

2. the Internal Review officer found it probable that DWH was not honest in his applications for the renewal of his licence on 20 April 2009 and 16 April 2014; and

3. the Internal Review officer placed significant weight on a statement by Dr Williams, that DWH “will need ongoing psychiatric support to ensure he remains well. At this stage, he will likely need psychological support into the foreseeable future …”

4. [NOT FOR PUBLICATION]

8. [NOT FOR PUBLICATION]

9. Notwithstanding the matters referred to in the immediately preceding paragraph the officer found that the concerns raised by Dr Williams provided “the possibility of relapse and a risk to public safety regarding [DWH’s] access to firearms” which “cannot be ignored”.

The Licensing Regime

10. There is no dispute that the Firearms Act 1996 (NSW) (the Act) provides a regime for the regulation, control and registration of firearms. All references to legislation throughout these reasons are to provisions of the Act unless the context otherwise requires.

11. Section 3 deals with the principles and objects of the Act. Underlying principles include that firearm possession and use is conditional on the overriding need to ensure public safety and impose strict controls on the possession and use of firearms. Section 7A states “A person must not possess or use a firearm unless the person is authorised to do so by a licence or permit”. Section 11 empowers the Commissioner to issue a licence or refuse an application for a license. Section 11 (3) provides that a licence must not be issued unless “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 …” Section 11 (7) states “Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers the issue of the licence would be contrary to the public interest.”

12. The Commissioner may revoke a firearms licence if he is of the opinion that the licensee is no longer a fit and proper person to hold a licence, s 24(2)(c); or for any reason prescribed by the Firearms Regulation 2017 (NSW) (the Regulations), s 24(2)(d)

13. Clause 20 of the Regulations states “The 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.”

14. Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, involved an application to the Administrative Decisions Tribunal (ADT), the predecessor of this Tribunal, to review a revocation by the Commissioner of a firearms licence. Deputy President Hennessy, said, in what has become an often quoted excerpt:

27 One of the objects of the Act, as set out in s 3, is “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety.” … The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.

15. In Aubrey v Commissioner of Police [2005] NSWADT 266, Judicial Member Montgomery said:

19 Mr Aubrey has applied to this Tribunal for a review of the Commissioner's decisions to revoke his firearms licence. The essence of the Commissioner’s case is that it is not in the public interest for Mr Aubrey to continue to hold the licence.

20 Any past and present conduct that may be relevant in deciding whether Mr Aubrey is a person who deserves the privilege of holding a firearms licence must be reviewed. Any propensity towards offending against the law must be regarded as of crucial importance. …

21 … 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. The principle issue then is whether there is a risk to the safety of the public if Mr Aubrey retains the licence.

22 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk to public safety if Mr Aubrey were given access to a firearm. The Commissioner argues that the Tribunal could not be satisfied that Mr Aubrey does not present a danger to public safety and, accordingly, it is not in the public interest for him to continue to hold a firearms licence. …

The fit and proper issue

16. In Fulton v Commissioner of Police, NSW Police Force [2015] NSWCATAD 150 I referred with approval to extracts of the Commissioner’s submissions in that matter as to whether Mr Fulton, the applicant, was a fit and proper person to hold a firearm licence under the Act.

17. In Fulton the Commissioner’s submissions included:

3.5   In Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156157,11 the High Court said that the expression 'fit and proper person' generally involves honesty knowledge and ability.

3.6   In the seminal authority of Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11,12 the High Court observed that the expression "fit and proper person" takes its meaning from its context. 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.

3.7   In accordance with these principles, the question of whether Mr Fulton is a fit and proper person involves a value judgement to be made in the context of the particular activity to be undertaken. In Wilkinson v Commissioner for Police [2002] NSWADT 59 the ADT said at ¶25:

25. As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.

3.8 The principles and objects are set out in section 3 of the Firearms Act: (amended by me to include relevant numbering)

(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) …

(2)  The objects of this Act are …:

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

(b)  …

(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) …

…

Public interest test

18. Extracts of the Commissioner’s submissions in Fulton, which I approved in relation to the public interest test, included:

10.2   The courts and the ADT have consistently held that the concept of the 'public interest' is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, the court stated:23 :

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.

10.3   In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 the ADT's Appeal Panel said in relation to the public interest (at ¶25):

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.

10.4 In Constantin v Commissioner of Police [2013] NSWADTAP 16 the ADT's Appeal Panel held that the 'public interest' allows a consideration of issues going beyond Mr Fulton's character to be taken into account (at ¶33):

33.   The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.

10.5   Strict controls on the possession and use of firearms are imposed in the interests of public safety. Ward v Commissioner of Police [2000] NSWADT 28 at [28] is often quoted when considering the public interest in the context of a firearms licence.

Tribunal’s jurisdiction

19. Section 75 of the Act provides that a person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of a decision to revoke a licence issued to the person under the Act. Section 63 of the ADR Act empowers the Tribunal to decide what the correct and preferable decision is, having regard to the material then before it and the Tribunal may exercise all the functions conferred on the Commissioner. In determining the application the Tribunal may affirm, vary or set aside the decision and make a decision in substitution for the administratively reviewable decision it set aside or refer that decision back to the Commissioner to be further dealt with.

The issues

20. At the commencement of the hearing, Ms Douglas-Baker, counsel for the Commissioner, informed the Tribunal that the issues for determination by the Tribunal are DWH’s fitness and propriety to hold a licence and whether it would be in the public interest. The Commissioner focusses on DWH’s mental history having regard to s 24(2)(b) and clause 20 of the Regulations.

21. Ms Douglas-Baker also submitted that DWH’s honesty in relation to certain of his applications for a licence was a live issue. She said that that issue may be resolved in the course of his cross-examination.

22. Ms Douglas-Baker requested, with Mr Bainbridge’s agreement, that the Tribunal consider making a confidentiality order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) for reasons which are dealt with in detail below at [90] and following.

Material before the Tribunal

23. DWH relied on:

1. his administrative review application filed 9 October 2018;

2. his statutory declaration made 20 December 2018 and filed 21 December 2018 (DWH’s First Declaration);

3. his statutory declaration made and filed 21 March 2019 (DWH’s Second Declaration);

4. an unsigned undated one page Outline of Submissions filed 7 February 2019 (AS);

5. a letter from Anthony Weaver, clinical psychologist, dated 1 April 2019;

6. some documents filed by the Commissioner, and.

7. oral submissions by Mr Bainbridge, solicitor for DWH.

24. Both DWH and Mr Weaver were cross-examined during the hearing.

25. The Commissioner relied on:

1. a 127 page bundle of documents filed 20 November 2018, pursuant to s 58 of the ADR Act (the s 58 documents);

2. a bundle of 492 pages of documents filed 11 April 2019 described as “Extracted Documents Produced under Summons” (the Summons Documents);

3. [NOT FOR PUBLICATION]

4. a bundle comprising 106 pages of documents are described as “Additional Documents Filed by the Respondent* filed on 11 April 2019 (the Commissioner’s Additional Documents);

5. [NOT FOR PUBLICATION]

6. written submissions dated 11 April 2019 filed 12 April 2019 (RS); and

7. oral submissions by Ms Douglas-Baker.

26. All references to all paragraphs of written submissions by the Commissioner are to RS unless stated to the contrary.

The Commissioner’s case

27. The Commissioner relied on reports of Dr Moorthy, who had treated DWH since August 2013, other than when DWH relocated interstate for a period, and Dr Williams, who had treated DWH on various occasions since March 2017 and whose involvement in his treatment in relation to medication was continuing at the date of the hearing. Both doctors are consultant psychiatrists.

Dr Moorthy’s evidence relied on by the Commissioner

28. The Commissioner relied on letters from Dr Moorthy to the Department of Veterans’ Affairs including:

1. a letter dated 11 September 2013 in which Dr Moorthy reported that in that month DWH sought help at the advice of his (then) wife. Dr Moorthy recorded that DWH was at that time becoming increasingly irritable, argumentative and began to shake with anxiety during family interactions; he had served in the Army from August 2000 to until August 2009 and had been exposed to serious life-threatening incidents. DWH suffered from chronic post-traumatic stress disorder (PTSD) as a result of his military service and experienced recurrent voluntary and intrusive distressing memories of his traumatic experiences. He made significant efforts to avoid distressing memories thoughts and feelings about anything closely associated with stimuli. DWH had suffered from depression since 2006, had lost interest in life events and had little initiative, drive, motivation or concentration. His self-esteem and self-confidence were low. He worried excessively, expected things to go wrong and was hypervigilant. DWH’s premorbid health was good and he had no physical or psychological ailments before joining the Army.

2. a letter dated 6 July 2015 which reported that DWH had been consulting Dr Moorthy regularly for his psychological ailments since 08/08/2013. Dr Moorthy wrote:

[DWH] …found the police service to be completely corrupt, vindictive, narrow minded, paranoid and undermining everyone who stood in their way to the point of destroying them ...

…

[NOT FOR PUBLICATION]

…

[NOT FOR PUBLICATION]

3. In the 2015 letter Dr Moorthy reported that DWH had no personality disorder and did not suffer from any medical illnesses. He had sustained injuries to his back, knees, shoulders and neck during his military service. Dr Moorthy stated that DWH would require long-term treatment and may in the future need more intensive treatment and hospitalisation. The expected benefits of such treatment included preventing further regression of his mental state, assisting him to deal with conflicts of everyday life and ongoing harassment of him, could prevent him from self-harm and farming others. However “his psychiatric conditions are unstable and will remain so for ever. They are permanent.”

4. a letter dated 11 October 2016 which the Commissioner submitted included, under the heading “Permanent Impairment”:

… the applicant had at that time received adequate psychiatric intervention in terms of antidepressant therapy and psychological therapies but that the "nature of his traumatic experiences are so vast and deep, it would take a considerable amount of time to get some amelioration"…

29. In this letter Dr Moorthy reports that he reviewed DWH on 27 September 2016 and spoke to DWH’s wife to obtain corroboratory evidence. DWH continued to suffer from severe flashbacks, dreams and nightmares and was afraid that any wrong or suspicious move by anyone would make him lose control of himself and react in an adverse way. He showed all the features of major depression. As DWH now lived interstate a follow-up could not be arranged and Dr Moorthy had advised him to seek local help.

Dr Williams’ evidence relied on by the Commissioner

30. The Commissioner relied on a report by Dr Williams dated 19 April 2017 and a report filed with the Federal Circuit Court on 21 July 2017.

31. The Commissioner submitted at [25]:

… [Dr Williams] stated that as at her then last review of the applicant (28 June 2017) the applicant had been stable on his (then) current treatment regimen but that he would likely need psychological support into the foreseeable future. The Federal Circuit Court, however, entertained some reservations as to the weight that might be placed on Dr Williams' report, given the absence of reference in that report to the applicant's suicide attempts or to his alcohol abuse. In addition, the Federal Circuit Court identified as a further concern the applicant's anger management issues, referring to a number if critical matters, again not addressed by Dr Williams.

32. [NOT FOR PUBLICATION]

The Commissioner’s dealing with Mr Weaver’s evidence

33. [NOT FOR PUBLICATION]

34. [NOT FOR PUBLICATION]

35. The Commissioner submitted at [67] that the reasons he opposes DWH are:

a.   the applicant has a long and complex mental health history characterised by suicidal ideation, attempted suicide, angry outbursts, anxiety and depression, and successive significant relapses occasioning hospitalisation and intensive or acute care;

b.   the applicant, while he has taken significant steps to engage positively with treating practitioners, relies heavily on Mr Weaver's opinion as to his fitness to hold a firearms licence in circumstances where, for the reasons set out above, it is not apparent that Mr Weaver is accurately informed of the applicant's mental health history or of his personal circumstances;

c. [NOT FOR PUBLICATION]

d.   even if the Tribunal were minded to set aside the decision under review, insufficient time has passed such that it would be open to the Tribunal to find that there is virtually no risk.

36. The Commissioner summarised his case at [68]:

68.   In all the circumstances, the Tribunal would find that given the applicant's mental health and his reliability as a witness as to matters concerning his own personal history, the applicant is neither a fit and proper person, nor is it in the public interest, that he be licensed to hold firearms. While the applicant's circumstances may change in future, the present state of the applicant's mental health, including his recent successive periods of hospitalisation a little over two years ago, are such that the application ought be refused.

37. The Commissioner submitted at [69] that DWH’s licence would expire two days prior to the hearing date and even if DWH was successful the Tribunal would not be able to make orders which reinstated his licence. In order to obtain a licence it would be necessary for DWH to apply for same. Accordingly DWH could not expect to obtain a licence as a direct result of a positive outcome before the Tribunal.

38. I observe that the Commissioner is well aware that the Application may be substantially successful notwithstanding that the particular licence which was revoked cannot itself be revived after its expiration through effluxion of time.

39. While a report from an independent forensic psychiatrist may be regarded as the gold standard of evidence for the subject purpose, I accept DWH’s expressed reasons concerning his multiple unsuccessful attempts to obtain such evidence and his decision to proceed with the hearing of his Application without same. I acknowledge the Commissioner’s change in position in favour of DWH in this regard.

Federal Circuit Court interim decision

40. [NOT FOR PUBLICATION]

41. [NOT FOR PUBLICATION]

42. DWH informed the Tribunal that he purchased, and presumably consumed, a carton of beer every 1 to 2 weeks during the relevant period. On my calculation this would involve consumption of from 1.7 to 3.4 cans or small bottles of beer per day. The only source I can find of the “alcohol dependence” allegation is in a statement from DWH’s wife. DWH informed the Tribunal that his then wife, during an acrimonious breakdown of their marriage, provided much of the admissions’ data to hospitals / clinics to which he was admitted. I have commented above on my concerns as to her credibility as a witness. DWH gave evidence to the Tribunal, his former wife did not. On balance I prefer DWH’s evidence and find on the material before me, with respect to the findings in the Federal Circuit Court, that I am not satisfied that at any relevant date DWH had an alcohol dependence.

43. The Commissioner submitted, and I find that:

25.   In a report provided to the Federal Circuit, Dr Williams, under whose care the applicant had been admitted at South Coast Private, stated that as at her then last review of the applicant (28 June 2017) the applicant had been stable on his (then) current treatment regimen but that he would likely need psychological support into the foreseeable future.

DWH’s case

44. DWH submitted at [4] in AS:

Since June 2017 DWH has been under the care of treating psychologist, Anthony Weaver. The content of DWH's file held by Mr Weaver has been produced under summons. Mr Weaver's view is that DWH is not at risk of suicide and nor is he at any risk of inappropriate use of a firearm. Mr Weaver supports the contention that DWH's firearm licence be reinstated.

DWH’s reliance on Mr Weaver’s evidence

45. [NOT FOR PUBLICATION]

46. In a report dated 3 November 2017 to a court dealing with parenting and family issues, Mr Weaver stated:

[DWH] has now attended for six sessions of counselling to address the impacts of his marital separation and loss of access to his children. Fortnightly appointments are continuing, with more appointments booked in the New Year, and crisis appointments also available although he has shown no signs that crisis appointments will be needed.

He continues to present as impressively calm and philosophical in the face of his stresses, and I was impressed that during our appointment tonight, after he had been messaged multiple times about his [child’s] hospitalization this afternoon, without the ability to respond on FaceTime as his ex-partner requested as he does not take his Computer Tablet when away from home and his phone is unable to run FaceTime. The telephone contact did finally occur, to his great relief

His demeanour continued calm subsequently, which once again impressed me with his Stress Management skills. My impression remains that he is not showing anything that would give me any concerns as to his ability to parent or to adhere to court requirements or judgements

47. By letter dated 13 April 2018 to the Firearms Registry of NSW Police Force Mr Weaver stated:

[DWH] has now attended for fifteen sessions of counselling with myself since commencing on June 6, 2017 (with appointments at fortnightly spacing since December l5th 2017) to address the impacts of his marital separation and loss of access to his children, as well as appropriate trauma/PTSD control strategies.

[NOT FOR PUBLICATION]

He shows excellent and appropriate frustration control strategies under the circumstances and is not showing any reactions that give me any concern as to his safety or that or his children or ex wife.

He is not making or showing any suicidal statements or behaviours and given our excellent therapeutic rapport and his excellent insight and self-disclosure in sessions, I am confident that such problems would have been obvious were he suffering from them.

It is my professional opinion that he is not at risk of suicide, and further, that he is not at any risk of inappropriate use of a firearm. To the contrary, he appears to use this activity as a form of mindfulness meditation and as such, it contributes to his mental calm when he is able to participate in this activity.

I fully support his firearm license being returned.

48. A further letter dated 1 April 2019, from Mr Weaver is in evidence. That letter, which is in support of the Application, states

[DWH] has now attended for thirty-five sessions of fortnightly maintenance counselling with myself since commencing on June 6 2017 (with appointments at fortnightly spacing) to address the impacts of his marital separation and loss of access to his children, as well as appropriate trauma/PTSD control strategies.

[NOT FOR PUBLICATION]

He is continuing to show excellent and appropriate frustration control strategies and is not showing any reactions that give me any concern as to his safety or that of his children or ex-wife.

He is not making or showing any suicidal statements or [behaviours] and given our excellent therapeutic rapport and his excellent insight and self-disclosure in sessions, I remain confident that such problems would have been obvious were he suffering from them.

It continues to be my professional opinion that he is not at risk of suicide. and further, that he is not at any risk of inappropriate use of a firearm. To the contrary, appears that his use of this activity (when he is allowed to participate) is a form of mindfulness meditation similar to Archery, and as such, it contributes to his mental calm when he is able to participate in it.

I fully support his firearm license being returned.

49. [NOT FOR PUBLICATION]

50. Mr Weaver’s evidence included his opinion that DWH’s relationship with his children would be better if they lived closer together. That relationship needed work by both DWH and his wife. Mr Weaver’s impression is that there was some cooperation and the relationship with the children was maintained. DWH had support from his parents and his partner. His relationship with his wife was more philosophical than angry and no more than one would expect.

51. In response to a question concerning DWH’s alcohol consumption and dependence Mr Weaver said in his opinion there was no dependence. DWH’s normal self-control was not upset. He confirmed what he had written in his April 2019 letter that the effect of firearms on DWH was that they helped him to relax and assisted his mindfulness rather than exhibiting aggression. Mr Weaver said he had not seen anything that gave him any concern in relation to risk factors. DWH exhibited sadness rather than anger. In his opinion DWH would remain stable because of his lifestyle. He did not need to work. The stress caused by the divorce had ended. Mr Weaver said DWH had a capacity to work and do would do well as an armourer not involving contact with unstable members of the public. Dealing with military people would be good for him. Veterans were disciplined and more organised than most members of the public. DWH’s progress in relation to PTSD symptoms was stable.

Family Report by independent psychologist

52. In addition to the reports by Dr Moorthy, Dr Williams and Mr Weaver, all of whom had treated DWH, the material before the Tribunal included a ”Family Report” dated 14 May 2018 by an independent psychologist (the Court Psychologist) pursuant to a Court Order from the Federal Circuit Court.

53. The Court Psychologist interviewed DWH’s wife, her then partner, DWH and, DWH and his wife’s children, and had a telephone interview with Mr Weaver. The Court Psychologist also had regard to Dr Moorthy’s February 2018 report.

54. The Family Report included:

6.   INTERVIEW WITH [DWH]

Personal Background Details

Mental Health History

[NOT FOR PUBLICATION]

Demeanour Attitude and Presentation

6.84 [DWH] was cooperative and polite at interview. He answered all questions put to him.

6.85 His mood appeared euthymic (neither elevated nor depressed).

6.86 He was quietly spoken and appeared calm throughout the course of the day.

6.87 He exhibited no hypervigilance, hyperactivity, or hyperarousal. He was neither lethargic nor agitated. He displayed no aggression nor was he excessively timid.

6.88 He displayed no disturbance in perception. His judgment appeared sound and his insight appeared good.

…

6.90 [NOT FOR PUBLICATION]

6.91 [NOT FOR PUBLICATION]

…

12.   EVALUATION, OPINION, AND RECOMMENDATIONS

…

12.4 In terms of his presentation, I saw a man who was calm and euthymic in his mood. He was normally reactive. He displayed no overt signs of disturbance, although clearly, he has had longstanding psychiatric difficulties arising from his various conditions.

12.5 He appears to have managed any mental health problems well until 2016, despite his incapacity for work due to both physical and psychiatric injury.

12.6 Doubtless, the relationship difficulties contributed to exacerbation of his mental health difficulties. However, I also note that he was subject to criminal proceedings that ultimately were resolved in his favour: The process of enduring these charges would have been a significant hardship for him and would no doubt have been an exacerbating -factor to his underlying mental health problems.

…

12.19 In terms of [DWH’s] current mental health status, I have noted his presentation to me at interview and that it raised no concerns. I have had regard to the report of Dr Moorthy dated 13 February 2018. While noting [DWH’s] history of fluctuating mental health in association with various stressors, I note Dr Moorthy's opinion that [DWH] now has stable mental health and that he is compliant with treatment. Despite the stress of the ongoing parenting dispute, he has presented as calm and robust. Clearly there was a period of acute decompensation in late 2016 that was associated with relationship difficulties and that necessitated hospitalizations and significant treatment at that time. Dr Moorthy has known [DWH] over a long period of time. As his treating practitioner, it is reasonable to accept that he has an accurate picture of [DWH’s] current functioning. There would appear to be no need for further independent psychiatric examination of [DWH].

Consideration

The fit and proper issue

55. I accept that, to use the terminology of Hughes v Vale, DWH was required to display adequate “honesty knowledge and ability” in relation to firearms and the conditions of his licence. There is no dispute that DWH has each of ‘ability’ and ‘knowledge’ to appropriate standards.

56. [NOT FOR PUBLICATION]

57. In December 2018 Dr Moorthy, having treated DWH at least intermittently since 2013, reported:

…

[DWH] requested that a report be provided to the NSW Police Service regarding his fitness to hold a Gun Licence.

I have always found [DWH] to be a highly responsible and a diligent person who was fully aware of his legal, moral and personal responsibilities in life. He remains a highly trained army professional who according to his statement had always exercised extreme discipline and regulation of his emotions.

He is conscientious and very professional in his approach. It is highly unlikely that if he was permitted to have a licence that he would ever misuse it.

I base this opinion on that fact that I have known him for many years. His illnesses have been managed successfully. He seeks continued professional help and remains aware of failing to follow the recommended therapy.

He has no current evidence of depression, anxiety, panic or disturbing PTSD symptoms. He is successfully managing his life with the help of psychotropic medications and regular psychological counselling. [the Tribunal’s emphasis]

However, it will be prudent to get an independent medico-legal report from a forensic psychiatrist. I have recommended to [DWH] that he consults one of my colleagues.

58. I observe that DWH has presented no evidence from an independent forensic psychiatrist or psychologist as to his current and prospective mental health in the context of his Application.

59. In RS [37] the Commissioner submitted that it was problematic for DWH that he had not obtained a report from an independent forensic psychiatrist and preferred an early resolution of his application to the Tribunal over presenting evidence that would address the real issues raised by his mental health history. The Commissioner submitted that DWH’s actions in this regard did not reflect well on his appreciation of the fitness and public interest issues raised in his application.

60. DWH stated in his second declaration that it was made for the sole purpose of recording his efforts to obtain expert evidence.

61. Towards the end of the hearing, having had the opportunity to cross examine both Mr Weaver and DWH, Ms Douglas-Baker informed the Tribunal that the Commissioner no longer held to his submission in [37].

62. I have had regard to the reports and evidence in cross-examination of DWH’s treating psychologist, Dr Tony Weaver. Mr Weaver’s evidence is favourable with respect to DWH’s progress in treatment and having treated DWH for several years, expressed his written opinion in both April 2018 and April 2019 that DWH is not at risk of suicide nor at risk of any inappropriate use of a firearm. He fully supports DWH’s firearm licence being returned.

63. A distinction between a suicide attempt involving a firearm and one not involving a firearm was discussed during the hearing and Ms Douglas-Baker quite appropriately referred to the decision in AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5. AML involved an application to set aside the revocation of the applicant’s firearms licence by the Commissioner.

64. DP Hennessy found that Commissioner relied on two alternative bases in revoking AML’s licence. Firstly that there was reasonable cause to believe that AML may not personally exercise continuous and responsible control over firearms because of a previous attempt to commit suicide and secondly it was not in the public interest for AML to continue to hold the licence.

65. AML had owned rifles for over 35 years, had held senior managerial positions in the private sector, and been made redundant 3 times. Immediately following an argument with his wife he drove into a forest and took a large number of tablets. He fell asleep, woke in the morning and had what he described as an ‘epiphany’ realising that he did not wish to die. A psychiatrist and a psychologist who treated AML prior to the suicide attempt have continued to treat him since then. Both provided reports expressing an opinion that his licence should not be revoked. AML denied previously threatening suicide despite second-hand evidence to the contrary. DP Hennessy was not satisfied that he had expressly threatened suicide and did not agree with the Commissioner’s submission that the opinions of the psychologist and psychiatrist should be qualified. She held:

22 Not every suicide attempt will justify the revocation of the person's firearms licence. The Tribunal must assess the likelihood that AML will attempt suicide or self-harm again and, if that happens, the likelihood that a firearm will be used. There is no suggestion that AML would attempt to harm others. The reason AML has a firearm's licence or the enjoyment he gets from possessing or using firearms is irrelevant.

23 I accept the opinion of both the psychologist and the psychiatrist that AML is highly unlikely to attempt suicide again. That opinion is based on several matters including the significant improvement in AML's mental health immediately following the suicide attempt and the continuing improvement in the 8 months since that time. I do not accept the Commissioner's submission that before the reasonable cause test or the public interest test can be satisfied, an applicant must complete a course of treatment and enjoy a lengthy period of stability following that treatment. While both effective treatment and a lengthy period of stability are relevant, they are not mandatory.

24 I also accept that it is highly unlikely that, if AML did attempt suicide or self-harm, he would use a firearm. AML has an unblemished history in relation to the possession and use of firearms and he did not contemplate using a firearm to suicide previously.

66. Ms Douglas-Baker said the Commissioner submits that there is a complexity in DWH’s history which does not involve alcohol; or drug dependence as had been suggested in earlier evidence. The evidence at the hearing changed that position.

67. I observe that DWH’s mental and emotional position had resolved, he was in a new relationship which seemed to be stable and positive and was working with Mr Weaver and Dr Williams.

68. It is a matter for the Tribunal to be satisfied that DWH is not a risk to public safety.

69. Ms Douglas-Baker conceded in closing submissions that the Commissioner’s submission at [32] that “It is unclear whether the applicant is not being candid with the Tribunal or whether the applicant does not accurately recall his own mental health history.” now falls away. I acknowledge that the Commissioner withdraws his implication that DWH was not being honest in his evidence to the Tribunal.

70. In closing Ms Douglas-Baker submitted that Dr Moorthy’s reports were generally of a historical nature. She said that from DWH’s evidence at the hearing it appears that Dr Moorthy has not completely retired and is still carrying out some professional work involving DWH. I also take note of Dr Moorthy’s December 2018 report that DWH “has no current evidence of depression, anxiety, panic or disturbing PTSD symptoms. He is successfully managing his life with the help of psychotropic medications and regular psychological counselling” and in relation to the Application that “It is highly unlikely that if he was permitted to have a licence that he would ever misuse it.”

71. Ms Douglas-Baker conceded that Dr Williams’s most recent report was nearly two years old.

72. I note Ms Douglas-Baker raised the question of who sought assistance for DWH, was it DWH’s wife on DWH’s behalf or was it DWH for himself. I also note Ms Douglas-Baker’s concession that there is no suggestion that DWH was dragged kicking and screaming to obtain medical assistance nor that he did not recognise that he had mental problems.

73. Having regard to both DWH’s evidence and medical reports before me I find that, irrespective of whoever instigated DWH’s initial contact with the medical profession, there is no doubt that in recent years DWH has been and continues to be a willing participant in seeking, obtaining and complying with medical assistance.

74. [NOT FOR PUBLICATION]

75. The Commissioner relied on Ward at [28] for his submission at [67.d] that ”insufficient time has passed such that it would be open to the Tribunal to find that there is virtually no risk.”

76. In Ward, DP Hennessy said at [28]:

The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.

77. I find that Ward at [28] provides no support for the Commissioner’s submission at [67.d]. Indeed I note that at [30] and [31] in Ward, despite Mr Ward having violently assaulted his partner within 8 months of the hearing, DP Hennessy found that he would not pose a risk to public safety and she was satisfied that he was “a fit and proper person to have a firearms licence”.

78. I also note that in AML, the Commissioner’s revocation of AML’s licence was set aside less than twelve months after an admitted suicide attempt.

79. Each matter must be considered on its merits. However, as DP Hennessy held at [23] in AML “While both effective treatment and a lengthy period of stability are relevant, they are not mandatory.”

80. Accordingly, and having regard to the available medical evidence and my findings, I reject the Commissioner’s submission at [67.d].

81. Mr Bainbridge submitted that DWH suffered PTSD from service to Australia. He suffered a traumatic incident when his wife left him and took their children interstate without his consent. He responded appropriately by seeking help and doing everything within his power to regulate himself. At page 90 of the s 58 documents Dr Williams reported that DWH’s conditions were currently stable. That was July 2017, nearly two years ago. All more recent medical evidence is that since 2017 DWH has been on the mend.

82. Dr Williams reported DWH “remained calm and stable” over the remainder of his stay (from early April 2017) shortly after being served with AVO.

83. I note that the COPS event in which a police officer took DWH’s wife’s statement which led to the issue of an ADVO against DWH, the officer recorded that DWH’s wife said “never been any incidents of domestic violence in the household no threats or intimidation between” DWH and his wife. I am not aware of any attempt by DWH to harm any person, with or without a firearm.

84. I note early statements from 2013 from Dr Moorthy and 2017 from Dr Williams concerning DWH’s anger towards members of the NSW Police Force. DWH informed the Tribunal he distinguished between having angry thoughts about people or events and acting out that anger and causing injury to anyone. For many years DWH has been an active volunteer member of the Rural Fire Service, receiving its 20 year-long service clasp in 2017. DWH said that in his work with the Service he frequently works with members of the Police Force without problems. This evidence was unchallenged.

85. In her undated report sent by facsimile on 19 April 2017 Dr Williams states DWH was admitted to the … Hospital on 2 March 2017. Under the heading “Presenting Symptoms” Dr Williams reported that DWH’s self-description included low mood, irritability, lack of enjoyment, nightmares, hypervigilance and affective instability. Just under 6 weeks later, Dr Williams report on DWH progress included that he did very well despite the situation that was going on within the family, including his wife seeking an AVO against him, emptying his bank accounts including his payout from Defence. Dr Williams stated “Despite all the stressors that appeared in [DWH]’s life at this time, he remained positive overall, cooperative, polite and friendly. His mental state remained stable. “

86. Dr Williams 21 July 2017 report, prepared for the custody proceedings, is in evidence. The Internal Review officer noted that Dr Williams stated in that report that DWH ” will need ongoing psychiatric support to ensure he remains well. At this stage, he will likely need psychological support into the foreseeable future …”. Regrettably the officer did not include Dr Williams’ opinion in the following paragraph of the report (see page 90 of the s 58 documents) which included:

[DWH] was an inpatient at … Hospital when the decision was made to separate from his wife, when police officers attended the hospital to serve him with an Apprehended Violence Order, and when large sums of money were allegedly withdrawn from his account unexpectedly. During this time he remained mentally robust. He was not ever found to be angry, agitated, non-cooperative or inappropriate. He continued to maintain his mood at a normal level. There were no thoughts of self-harm or harm to others including his wife or children. [DWH’s] behaviour was organized and expected.

87. This is not the psychiatric description I would expect of a person who is so unbalanced that he is not a fit and proper person to hold a firearm licence.

The public interest and DWH’s private interests

88. DWH has said, and I accept, that he wishes to resume his occupation as an armourer. There is conflicting evidence as to the extent to which he could carry on that occupation, whether full or part time and whether as an independent contractor or an employee, both having regard to his physical condition and with or without a licence under the Act. DWH said he participated in target shooting and found that using a firearm relaxed him. There is also evidence that DWH wishes to have a licence to enable him to continue to dispose of feral animals and he relies on the reference dated 16 April 2018 on page 95 of the s 58 documents. Because of physical disabilities arising from his military service, DWH is unable to pursue occupations not involving firearms for which he may otherwise be qualified, thus limiting his capacity to earn a reasonable wage and support his children. These are some of DWH’s expressed private interests in support of his Application.

89. However, it is undisputed that the public interest must take priority over private interests. I find that, with the exception of the licence suspensions referred to above, the Commissioner was satisfied for many years that DWH was a fit and proper person to hold a firearms licence and that it was in the public interest that he do so. Having regard to my above findings, I am satisfied that there was virtually no risk, in the Ward sense, should DWH have continued to hold his firearms licence at the time it was suspended in March 2017 and subsequently revoked in March 2018. I am also satisfied, on the material before me that there is virtually no risk to himself or other persons in DWH being issued with such a licence now, should he apply for one.

Findings

90. Having regard to the material before me, my above findings and s 60 of the CAT Act, the correct and preferable decision is to make the orders below in relation to costs and DWH’s Application to review the revocation of his licence.

Confidentiality application

91. The Commissioner requested, and the parties agreed, it would be preferable if DWH’s young children were not identified and regard be had to the interests of their mother, DWH’s wife. I observe that DWH’s wife is not represented but her statement is in evidence, formed part of the Commissioner’s reasoning in favour of the licence revocation and she is mentioned negatively in evidence.

92. I have regard to the interests of certain members of the Police Force, some of whom have made statements which are in evidence, who have been referred to negatively, but who were not represented at the hearing.

93. I observe that neither party requested that the hearing be conducted wholly or partly in private.

Consideration of the confidentiality application

The Tribunal’s power in relation to a confidentiality application

94. Recently, in Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61 (Bungree), Ransome SM considered the issue of suppression of information relevantly before the Tribunal. In that matter a party [the Registrar] had sought orders that parts of the filed material, including parts identifying certain persons, be either withheld or redacted and not provided to the other party (Bungree) or be made publicly available. Bungree opposed the making of those orders. Relevantly, Ransome SM said:

9 The starting point for the consideration of the issues raised in this application … is s 49 of the CAT Act. That section provides that hearings of the Tribunal are to be conducted in public unless the Tribunal orders otherwise. The presumption therefore is that proceedings of the Tribunal will be public. Sub-section 49(2), however, qualifies that presumption by providing that a hearing may be conducted wholly or partly in private if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

10 Division 6 of Part 4 of the CAT Act is titled “Information disclosure” and contains a number of provisions which prevent or limit the disclosure by the Tribunal of certain categories of information. Central to this application is s 64 which provides:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

…

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

…

95. In Rapisarda v Commissioner of Police, NSW Police Force; Housego v Commissioner of Police, NSW Police Force; Sheehy v Commissioner of Police, NSW Police Force; McDonald v Commissioner of Police, NSW Police Force [2018] NSWCATAD 34 the Appeal Panel of the ADT said:

14 Mr Fernon SC, who appeared for the Commissioner, referred to … State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 which he submitted, correctly in our view, “remains the leading authority on whether or not orders under s 64 should be made”.

15 NSW v Dezfouli involved an application under s 75 of the Administrative Decisions Tribunal Act 1997 (NSW) however that provision is largely replicated in ss 49 and 64 of the NCAT Act.

16   The decision has been referred to with approval in a number of decisions of this Tribunal …

17   The Appeal Panel of the Administrative Decisions Tribunal held in NSW v Dezfouli:

“50 Within the opening words of section 75(2) of the ADT Act … three elements of prime importance are the word ‘desirable’, the phrase ‘for any other reason’ and the word ‘may’. These indicate that the purpose (or purposes) to be served by a suppression order may be ‘any … reason’ (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is ‘desirable’ and that the actual making of the order is not mandatory but within the Tribunal’s discretion.

…

58 … section 75(1) creates a presumption in favour of hearings being both open to the public and freely reportable and that circumstances justifying departure from this presumption must be present if an order is to be made under section 75(2).

…

81 It is difficult if not impossible to set out in short form all the matters that, according to the case law …, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.

82 ... In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be ‘special’ or ‘out of the ordinary’ (though a requirement that they be ‘exceptional’ may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition.”

96. I find that, although it is not mandatory, it is desirable to protect the interests (including privacy) of DWH’s children, DWH’s wife, and other persons, some of whom have made statements which are in evidence, who have been referred to negatively in these proceedings, none of whom were represented during the proceedings.

97. Having regard to my findings in the immediately preceding paragraph, and in order to protect the interests, including the identity, of the persons referred to in that paragraph, I make the orders below pursuant to s 64 of the CAT Act.

Orders

Orders in respect of the revocation of DWH’s firearms licence

1. The Commissioner’s decision under review is set aside.

2. I direct that if, after the publication of this decision, DWH applies for a licence under the provisions of the Firearms Act 1996, the Commissioner shall have regard to this decision.

General order

1. No application for costs having been made, having regard to s 60 of the CAT Act, each party is to pay their own costs of the proceedings.

Publication restriction

1. Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, access to and publication of the following shall be restricted to the parties and their legal representatives.

1. the name of DWH,

2. the recording, whether written, electrical or aural, of the hearing held on 29 April 2019,

3. evidence given before the Tribunal, and matters contained in documents lodged with the Tribunal or received in evidence or as submissions by the Tribunal; and

4. any part of any paragraph of these reasons which commences [NOT FOR PUBLICATION] other than the words in brackets.

5. They are not for publication or release to any other person.

**********

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

Registrar

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: 21 June 2019