Earl v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 154

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Earl v Commissioner of Police, NSW Police Force [2024] NSWCATAD 154

Hearing dates:

17 October 2023, 22 November 2023, 24 January 2024

Date of orders:

03 June 2024

Decision date:

03 June 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

Administrative Law – firearms licence application – refused - where applicant diagnosed with PTSD, and depression – where ongoing treatment – whether holding firearms licence contrary to the public interest – whether Applicant is a fit and proper person to hold a firearms licence

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

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

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

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

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

GGW v Commissioner of Police, NSW Police Force [2024] NSWCATAP 88

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

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

Keane v Commissioner of Police, NSW Police [2008] NSWADT 68

Meacham v Commissioner of Police [2020] NSWCATAP 107

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

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Aaron David Earl (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (self-represented)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/00217288

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Mr Aaron Earl (“the Applicant”) for review of a decision by a delegate of the Commissioner of Police (“the Respondent” or “the Commissioner”). The decision was to refuse the Applicant’s application for to renew a Category AB firearms licence under the Firearms Act 1996 (“the Act”).

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

Background

3. The Respondent has provided details in regard to the background to the Respondent’s decision. This chronology is not in dispute.

• The Applicant was issued with a category AB firearms licence in January 2013.

• The licence was renewed in February 2018, with an expiry date of February 2023.

• The Applicant lodged an application to renew the licence in January 2023.

• In making that application he answered, "Yes” to the question "have you, in the past 12 months, been referred or treated for a mental or nervous disorder or illness?”

• He also advised that he was diagnosed with Post Traumatic Stress Disorder (“PTSD”) in 2019 and have been receiving treatment under Work Cover.

• As a result of the disclosure of his PTSD, the Respondent’s Firearms Registry requested that the Applicant complete a Mental Health Risk Assessment (“MHRA”).

• The Applicant was given a Risk Assessment Questionnaire (“the Questionnaire”) that could be given to the psychiatrist or psychologist who was to undertake the MHRA. The Respondent allowed him 8 weeks to have the MHRA completed.

• In February 2023, as a result of the disclosure of his PTSD, the Applicant was issued with a Notice of Suspension and his firearms were seized.

• The Applicant’s application to renew his firearms licence was refused in April 2023 as no MHRA had been provided.

4. The Notice of Refusal stated:

On 10 February 2023, police served a notice of suspension, seized your firearms and provided a letter requesting an assessment from a Psychiatrist/Psychologist.

To this date no assessment has been received as requested. I note the original timeframe provided to you to return a medical assessment to this Office was eight weeks. Accordingly, I am satisfied that you have had ample opportunity to provide an assessment to this Office.

Decision:

I advise the principles and objectives of the Firearms Act 1996 (the Act) are to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety by imposing strict controls on the possession and use of firearms. Inherent in the licensing requirements is that persons who have access to firearms must act responsibly and in accordance with the legislation.

As such, without the benefit of expert advice to assist my determination, I cannot be satisfied that you could exercise continuous and responsible control over firearms. …

Accordingly, I am satisfied that you have had ample opportunity to provide the information requested to this Office and therefore I am refusing your application for a category AB firearms licence.

5. The Applicant requested an internal review of the decision to refuse his licence application reviewed. In his request, he cited a lack of mental health professionals within rural areas. He also requested an extension of time to have the MHRA completed and advised that he had secured an appointment on 15 May 2023. He was subsequently advised that he was afforded “an extension to complete the MHRA by no later than 2 June 2023.” The internal reviewer requested that the MHRA provide “an in-depth background on your PTSD so as to provide the NSWPF Firearms Registry with sufficient expert medical opinion.”

The Risk Assessment Questionnaire

6. The Questionnaire is designed to allow a treating mental health professional to give a detailed assessment of an applicant to assist the Firearms Registry in assessing the risk to public safety should they be allowed access to firearms. The Questionnaire included:

We kindly request a response to the below questions. Please identify all source material used to complete the assessment and include any other information you believe may assist us to make a decision of the suitability for Aaron David Earl to be granted or continue to hold a firearms licence.

RISK ASSESSMENT QUESTIONNAIRE

The Risk Assessment should address, but not be confined to the following:

1.   Have you received and read the letter sent to the customer dated 18 January 2023?

2.   Did the patients referring General Practitioner provide any additional relevant information?

3.   How long have you been treating the customer?

4.   What testing was used to complete your assessment (ie. PAI, DASS)?

5.   What, if any, condition or impairment has the customer been diagnosed with or suffered?

6.   How would this impairment affect their fitness to possess and use firearms?

7.   Is the customer taking any medication that would have an adverse effect on their alertness (i.e. their ability to drive a motor vehicle or operate machinery)?

8.   Has the customer ever deviated from any prescribed course of action or medication, relevant to the above-mentioned impairment? If so, what were the circumstances and results?

9.   What were the customer’s response to questions about suicidal ideation?

10.   In your expert medical opinion:

i.    Is there a risk that the customer’s condition or impairment may impact on their ability to exercise continuous or responsible control over firearms?

ii.   Is there any history that the condition or impairment has affected their ability to exercise the desired control and responsibility over firearms in the past?

iii.    If there is a previous history, yet no concern, why have the circumstances changed?

iv.    Is It possible the customer will relapse?

11.   In your expert medical opinion, does the customer:

i.   Currently have the ability to form a rational judgement or to exercise will power to control physical acts in accordance with rational judgment?

ii.   Has the customer previously demonstrated an inability in this regard?

iii.    If there is a previous history, yet no concern, why have the circumstances changed?

iv.    Is it possible the customer will relapse in this regard?

12.   In your expert medical opinion:

i.   Does the customer’s condition or impairment have the potential to put public safety at risk if they were to have possession and use of a firearm"? (Please note that a reference to ‘public safety’ includes the safety of the person being assessed.)

ii.   Has the customer previously posed such a safety risk?

iii.   If there is a previous history, yet no concern, why have the circumstances changed?

iv.   Is It possible the customer will relapse in this regard?

13.   Any other matters considered relevant.

The internal review decision

7. The internal review was undertaken on 13 June 2023. It noted that at that time the Applicant had not provided an MHRA. The internal review statement of reasons stated:

To date, no response has been provided by you, and in the absence of the requested information, the review on the decision to refuse your Category AB firearms licence application was conducted on the information available to me at this time.

I am of the opinion that I was not provided with any medical treatment information in the context of your PTSD and can therefore not determine the level of risk associated with you being issued a firearms licence.

It is important to note that the licensing regime is not about punishment. 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.

In the absence of adequate expert medical opinion, precedence must be placed on maintaining our commitment to public safety, therefore the decision to refuse your licence application is affirmed.

Dr Stuart Saker’s MHRA report

8. In response to the Respondent’s request for a MHRA, the Applicant provided a report dated 7th June 2023 from Dr Stuart Saker (“Dr Saker’s report”). Dr Saker’s report was not received prior to the internal review determination and therefore it was not considered at that time. Dr Saker’s report stated:

1.   I have read the letter to Aaron Earl dated 18 January 2023.

2.   His General Practitioner has provided additional information through their referral.

3.   I have been treating him since 2/5/2019.

4.   He has Major Depressive Disorder and Post Traumatic Stress Disorder.

5.   She (sic) initially scored 33 on a Kessler 10 on 2/5/19 indicating severe anxiety/ depression.

6.   Untreated depression can cause decreased attention and concentration and potentially suicidal thinking, which can impact on the ability to possess and use firearms.

7.   [The Applicant’s treatment] improves his mental health and does not impair his ability to handle firearms. ...

8.   He has always been compliant with treatment.

9.   He denies suicidal ideation and has always denied suicidal ideation, plans or intent.

10    (i)    There is a risk that if his condition worsened his ability to handle firearms could become impaired. This is unlikely given his treatment plan.

(ii)   There is no evidence that his ability to handle firearms has been impaired in the past.

(iii)   This is not applicable.

(iv)    There is a slight possibility of relapse but this is unlikely given his treatment.

11.    (i)    He currently has the capacity to form a rational judgment to

exercise willpower to control physical acts in accordance with rational judgment.

(ii)   He has not demonstrated an inability in the past in this regard.

(iii)   This is not applicable.

(iv)   There is a slight possibility of relapse but this is unlikely given his treatment.

12    (i)    His condition has minimal risk of putting public safety at risk.

(ii)   He has never posed such a safety risk.

(iii)   This is not applicable as there was no previous concern.

(iv)   There is a slight possibility of relapse but this is unlikely given his treatment.

I think he can safely handle a firearm.

9. The Respondent has indicated that there are still concerns with respect to the Applicant’s suitability to hold a firearms licence. It considered that the concerns were not addressed by Dr Saker’s report or other material before the Tribunal. In particular, the Respondent has raised the following issues:

• Dr Saker refers to the Applicant having a Major Depressive Disorder (“MDD”).

• The Applicant failed to disclose that he had also been diagnosed with that condition.

• Dr Saker’s responses to each of the questions in the Questionnaire are very short and do not contain any significant level of detail.

• There is no indication as to the incident that caused the PTSD and what gave rise to the MDD.

• There is no indication as to whether the Applicant is still in a situation where he is exposed to the PTSD and MDD triggers.

• Has a further Kessler 10 assessment been undertaken since 2 May 2019 and if so, what was the result.

• What are the symptoms of each of the diagnosed conditions if untreated.

• Is the treatment that the Applicant is receiving required to be permanent and ongoing.

• Would the Applicant be suitable to handle firearms if he discontinued treatment.

Issues before the Tribunal:

10. 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 the Applicant is a fit and proper person to have a firearms licence, and whether it is contrary to the public interest for him to hold a licence under the Act.

Nature of Proceedings

11. Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Firearms Act. This application is made under section 75 of the Firearms Act and the ADR Act.

12. The Tribunal’s jurisdiction includes review of decisions by the Commissioner of Police to refuse to issue a licence.

13. The Tribunal’s function in relation to applications before it is set out in section 63 of the ADR Act:

63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

14. The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. Accordingly, there is no burden or onus of proof on either party.

15. The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]:

“[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on “logically probative material”, and not on “mere suspicion or speculation”, as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (“Pochi”) at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 (“Sullivan”) at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.

…

[83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on “logically probative material”: Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].”

16. In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review.

17. The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. However, in determining the review, the Tribunal, must exercise its discretion in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].

18. The Act sets up a scheme to license people to possess and use firearms. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation. One of the underlying principles of that Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms. The underlying principles emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. In Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 Judicial Member Handley observed at paragraph [44]:

44 The underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (‘Ward’), at paragraph 27 to paragraph 28, Deputy President Hennessy said that in terms of public safety:

“27. ... 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.”.

19. Section 11 of the Act provides for the issuing of licences. Subsection 11(3) provides:

(3) A licence must not be issued unless:

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

...

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

...

Public interest

20. The expression "public interest" is not defined in the Act. It is well established that, in considering the meaning of that term, the Tribunal will have regard to the context in which it appears. 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."

21. 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.

22. “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.

23. 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].

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

25. 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].

26. 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.

27. In GGW v Commissioner of Police, NSW Police Force [2024] NSWCATAP 88 the Appeal Panel recognised at paragraph [45]:

The relevant question in relation to the public interest, as the Tribunal recognised, is whether issuing a licence to the appellant would entail a real and appreciable risk to public safety.

28. Accordingly, the question arises as to whether there is enough evidence before the Tribunal to draw an inference that there is a real and appreciable risk to public safety, as opposed to a fanciful risk.

Material before the Tribunal

29. The Respondent relies on bundles of material filed pursuant to section 58 of the ADR Act (“the section 58 material”). This material includes records related to the Applicant’s firearms licence, and a number of medical records obtained under summons. The Respondent’s solicitors also provided written and oral submissions.

30. The Applicant relies on Dr Saker’s report and his own evidence. He attended the hearing, gave evidence and was cross-examined and made submissions.

The Respondent’s case

31. As noted, the Respondent contends that there is medical evidence related to the Applicant’s PTSD and MDD and that there is insufficient evidence to allow the Tribunal to find that there would be virtually no risk to public safety if the Applicant were permitted to again have access to firearms.

32. The Respondent also contends that the Applicant failed to notify the Firearms Registry that he was diagnosed as suffering from MDD.

33. As noted above, the Respondent has residual concerns which it says are not addressed by the material that is before the Tribunal.

34. The Respondent also expressed concern that Dr Saker’s report, which is dated 7th June 2023, made no mention of the fact that the Applicant was a patient under his care at Toronto Private Hospital Mental Health Unit (“the Toronto hospital”) from 24 April 2023 to 7 June 2023. The Respondent noted that despite the fact that the Applicant had a two-month stay at the Toronto hospital, no records were produced.

35. It is also not in dispute that the Applicant attended the Toronto hospital for a further stay from 4 December 2023 to 15 December 2023. No records are available in relation to that stay.

36. In addition, the Respondent has referred to the Applicant’s medical records which it contends raise questions in relation to the Applicant’s medication compliance. The Respondent contends that the records suggest that the Applicant ceased taking medication without medical advice.

37. As noted above, Dr Saker’s report states that the Applicant denies suicidal ideation and has always denied suicidal ideation, plans or intent. However, the Respondent has referred to Dr Saker’s notes from May 2019 which are contained in the Applicant’s medical records. Those notes record that the Applicant “tried to kill himself when he was a teenager. He tried to drive his ute into a tree.”

38. The Respondent also points to a report regarding the Applicant’s mental health from Dr Greg Lee. Dr Lee’s report is undated but appears to have been created in about September 2022 for insurance purposes/disability allowance. The report indicates that the Applicant was:

“Still suffering from PTSD and depression. Has been diagnosed since 27/3/2019, with anxiety, bipolar disorder and ADHD.

Current symptoms include low mood, suicidal thoughts, extreme anxiety, avoidant behaviour, irritability, poor concentration, memory and motivation, distracted. Variably impaired cognition.”

39. Dr Lee also referred to the Applicant’s paranoia and notes that he was experiencing “severe symptoms on a daily basis.”

40. The Respondent also points to a report from Dr Lee dated 6 March 2018 which records that the Applicant had suffered from depression since 2009. In May 2019, Dr Saker had noted that the Applicant had been treated for depression since he was 13 years old. However, the Respondent also notes that the Applicant had not declared this treatment in his 2012 or his 2017 firearms licence renewal applications. The Respondent contends that he was being treated for depression at the time that he completed those application forms.

41. The Respondent submitted that the risk factors are well and truly alive and that it should be of concern to the Tribunal that the Applicant did not declare his treatment for depression. The Respondent noted the importance of licence applicants being truthful in their disclosures to the Firearms Registry. Further, the Applicant should have declared that he had attempted suicide when he was a teenager.

42. The Respondent submitted that the Firearms Registry might not have issued the licences if it had been given the information that is now available.

43. The Respondent submits that the Applicant is not a fit and proper person to hold a firearms licence because of the false answers that he provided in his various licence renewal applications. The Respondent submits that the Applicant is still downplaying issues related to his mental health.

44. The Respondent submits that no weight can be given to Dr Saker’s report when it is at odds with Dr Saker’s 2019 notes. Further, the Respondent submits that Dr Saker did not provide extremely relevant information about the Applicant’s April 2023 to June 2023 stay at the Toronto hospital and made no mention of any treatment plan. It is also noted that the Applicant again entered the Toronto hospital in December 2023. The Respondent also notes that Dr Saker was not available for cross examination and there is no evidence to show that any attempt was made to make sure that he was available.

45. In these circumstances, the Respondent submits that the Tribunal could not be satisfied that there is virtually no risk to public safety if the licence application is granted. Therefore, the decision under review should be affirmed.

The Applicant’s case

46. It is common ground that the Applicant has held a firearms licence since 2013 without incident. He has no criminal record. He has previously had a work-related need for a firearms licence. He was employed in the mining industry as an Emergency Response Officer and, more recently, as a Rescue Paramedic. He served as a volunteer with the NSW RFS as a firefighter in the capacity as Deputy Captain for 10 years.

47. He has now ceased that employment but is planning to work for his brother-in-law who is a primary producer in an isolated community, and he is seeking to obtain a firearms licence to assist his brother-in-law with pest and vermin control, particularly pigs, and for general use on the property.

48. As noted, he obtained Dr Saker’s report in response to a request from the Respondent. His evidence is that he has always made an effort to be open and honest in his dealings with the Respondent and he has tried to obtain the additional material that the Respondent has requested.

49. The Applicant gave evidence in regard to his attempts to obtain additional information from Dr Saker but stated that while Dr Saker had indicated that he was prepared to provide a further report, he had not done so. Accordingly, the only report that he is able to provide is the 7 June 2023 report.

50. Nevertheless, the Applicant contends that Dr Saker’s report answered all the questions posed by the Risk Assessment Questionnaire.

51. The Applicant gave evidence that he holds several accreditations which suggest that he has been assessed for suitability to perform a number of roles. These include his work as a paramedic as well as holding security and explosives accreditation.

52. He denies that he had been dishonest in his dealings with the Respondent. With respect to the Respondent’s contention that he provided false information in his licence renewal applications, the Applicant stated that he believed that the information he provided was correct that the time. He said that while he has had suicidal thoughts, he had never acted on those thoughts.

53. The Applicant noted that in his most recent licence renewal application he declared that he is treated for PTSD. In his application he answered “Yes” to the question “Have you, in the past 12 months, been referred or treated for a mental or nervous disorder or illness?”. He provided the following information addition information in that regard:

I'm a Rescue Paramedic and have been in this field across the country for the last 20yrs. I also volunteer as a NSW RFS firefighter in the capacity as Deputy Captain for the last 10yrs. In 2019 I was diagnosed with PTSD from a work-related incident. I'm covered under Work Cover and treatment consists of counselling, therapy and medication.

54. With respect to the earlier diagnoses to which the Respondent has referred, he stated that he had been treated by a number of psychologists but prior to 2022 he did not receive a copy of reports in relation to his mental health that were prepared for the workers compensation insurer.

55. The Applicant denied that he has been non-compliant with his medication or that he took himself off medication without proper medical advice. He also denied that he has failed to complete all the treatment that was required of him. He stated that his treatment is related to his workers compensation claim and that it would have a negative effect on his claim if he were to be non-compliant. Similarly, and for the same reason, he denied that he has ever self-discharged from hospital.

Consideration

56. This is an application in which the evidence from the Applicant suggests that he has made efforts to obtain the information that the Respondent contends is lacking, but he has been unsuccessful.

57. I am satisfied that the Applicant has been honest and candid in his evidence. While it is apparent that the answers that he provided in his 2012 and 2017 licence renewal applications was not accurate or complete, I do not consider that this was a deliberate attempt to mislead the Firearms Registry. There are some inconsistencies between the Applicant’s accounts of his treatment, medication and mental health history and the information that is contained in the medical records. However, I am satisfied that those inconsistencies can probably be explained by the Applicant’s conditions and circumstances.

58. I do not agree with the Respondent that these issues lead to the conclusion that the Applicant is not a fit and proper person to hold a firearms licence.

59. However, in my opinion there is cause for concern about whether or not there is a risk to public safety if a firearms licence is granted. These concerns arise because of the absence of evidence in response to the issues raised by the Respondent. I accept that there is a lack of mental health professionals within rural areas and that this may have affected the Applicant’s ability to obtain alternative medical evidence.

60. I appreciate that the absence of evidence is through no fault of the Applicant. I accept that he has taken reasonable steps to obtain a further report from Dr Saker and that despite the assurances that he was given, he has been unable to obtain that information. Dr Saker did not give oral evidence and was not cross-examined so there has been no opportunity to ask him about those matters. The absence of the further evidence has affected the Applicant’s ability to present his case effectively.

61. However, the task of determining the issues on the basis of the evidence before me remains. I need to undertake a proper assessment of the evidence actually before me and its strength. I can draw inferences from proved facts, but I cannot speculate about material that is not in evidence before me. I cannot speculate about what a further report from Dr Saker might have stated.

62. The causes of the Applicant’s PTSD and MDD issues are not clear.

63. Dr Saker recorded that, as a teenager, the Applicant drove his car with the intention of committing suicide. However, the circumstances at that time were vastly different to the Applicant's situation now. The management of his mental health has vastly improved. It seems that Dr Saker did not consider the Applicant to be suicidal. Nevertheless, the medical records mention that at times the Applicant has had suicidal thoughts. It is not clear whether or not there is a real possibility that the suicidal thoughts could be put into practice. It is not clear whether or not Dr Saker considers that the Applicant has the potential to again become suicidal if circumstances developed to trigger a decline in his mental health.

64. The medical evidence provided by the Applicant does not allay my concerns regarding his mental health. There is conflicting evidence, and it does not adequately address the risks to public safety, as it does not engage with or consider the relevant material which is before me.

65. In particular, there is a lack of information in regard to the following issues raised by the Respondent:

66. What are the symptoms of each of the diagnosed conditions if untreated.

67. Is the treatment that the Applicant is receiving required to be permanent and ongoing.

68. Would the Applicant be suitable to handle firearms if he discontinued treatment.

69. There is a lack of information in regard to issues raised in Dr Lee’s report that indicated that the Applicant was “diagnosed since 27/3/2019, with anxiety, bipolar disorder and ADHD”. It is not clear whether these conditions create a risk to public safety, including the Applicant’s own safety, should he have access to firearms.

70. In the circumstances, without a further report from Dr Saker, or another mental health professional, providing greater details and responding to the issues raised by the Respondent, I give little weight to Dr Saker’s report or to the opinions expressed within it.

71. The underlying principles of the Act include confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety. The only evidence from health practitioners as to the risk that might arise from Applicant holding a firearms licence comes from Dr Saker. For the reasons outlined above, I give little to no weight to the opinions expressed in Dr Saker’s report. Accordingly, on the current evidence I am not satisfied that there is virtually no risk to public safety if the Applicant is able to possess and use firearms. I am satisfied that it is not in the public interest for the Applicant to hold a firearms licence at this time.

72. The correct and preferable decision is therefore to affirm the decision of the Respondent to refuse the Applicant’s application for a category AB firearms licence.

73. However, in coming to this view, I note that the Applicant is not precluded for applying for a licence again. If he is able to obtain the evidence that is lacking at this time, the Respondent might form a different opinion.

Order

The decision under review is affirmed.

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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: 03 June 2024