English v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 103

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

English v Commissioner of Police, NSW Police Force [2024] NSWCATAD 103

Hearing dates:

11 April 2024

Date of orders:

17 April 2024

Decision date:

17 April 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

The decision under review is set aside.

Catchwords:

LICENSING – firearms – mental health issues – false statement in application – public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5

Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

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

GGJ v Commissioner of Police, NSW Police Force [2024] NSWCATAD 73

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

Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAS 144

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

McDonald v Director General of Social Security (1984) 1FCR 353 at 357

McGrath v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 98

Monjed v Commissioner of Police, NSW Police Force [2019] NSWCATOD 197

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

Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137

Shi v Migration Agents Registration Authority [2008] HCA 31

Sobey v Commercial Agents Board (1979) 22 SASR 70

Stamatelatos v Commissioner of Police, NSW Police Force

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:

Scott English (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self-Represented)
Solicitors:
Holding Redlich (Respondent)

File Number(s):

2023/00361130

Publication restriction:

1. All paragraphs marked “[NOT FOR PUBLICATION]” are not to be published pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 or to be released to the Applicant.
2. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the Confidential Material or matters contained therein is restricted to the Respondent, the Respondent’s legal representatives and the Tribunal.

REASONS FOR DECISION

1. The Applicant, Scott English, was first granted a firearms licence in 2015. He reapplied for, and was granted, a further licence in 2020. On 12 May 2023 the Respondent decided to revoke his firearms licence on the basis that it is not in the public interest for him to continue to hold the licence. That decision was affirmed on internal review. The Applicant now seeks review by this Tribunal.

Relevant legislation

2. The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

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

(b) to improve public safety:

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

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

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

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

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

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

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

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

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

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

3. Section 24(2)(a) of the Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. The Act, in setting out restrictions on the issue of licences, provides, relevantly, at s 11(5):

(4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of--

…

(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or

(c) the applicant's intemperate habits or being of unsound mind.

…

4. Section 24(2)(d) of the Act prescribes that a licence may be revoked for any other reason prescribed by the Regulation. Clause 20 of the Firearms Regulation 2017 (Regulation) prescribes that 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.

5. Section 70 of the Act prescribes that a person must not, in or in connection with an application under the same Act or the Regulation, make a statement or provide information that the person knows is false or misleading in a material particular. Section 24(2)(b)(i) of the Act provides that a licence may be revoked if the licensee supplied information which was, to the licensee’s knowledge, false or misleading in a material particular in, or in connection with, the application for the licence.

Evidence

6. The Applicant provided a bundle of documents, which are referred to below. He gave evidence and was cross examined, as was his wife, Crystall.

7. The Applicant provided references from:

1. Larisa Zoska, direct team leader, Wollondilly Shire Council

2. Paul Draper, Manager of Infrastructure Operations, Wollondilly Shire Council

3. Amir Saffuri, a friend and police officer, dated 10 January 2024

8. The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act). Material filed by the Respondent included a body worn video (BWV) recording made by Police when they attended the home of the Applicant’s mother on 21 August 2022. I reviewed the BWV after the hearing.

9. The Respondent also relied on evidence produced during a confidential hearing. I do not propose to discuss in open Reasons any material that was presented on a confidential basis. Those parts of the Reasons that are not to be disclosed are identified as “[Not for publication]”, and Orders are made accordingly: s 64 of CAT Act.

Tribunal’s approach

10. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shiv Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].

CONSIDERATION

What precipitated the revocation of the Applicant’s licence?

11. On 21 August 2022, Police attended the Applicant’s mother’s home where the Applicant was staying, in response to her call that she was concerned that the Applicant may self-harm (the incident). The Applicant reportedly had left his family home due to suspicions that his wife was being unfaithful and had been experiencing episodes of anxiety and panic attacks. The Applicant’s mother called Police after the Applicant drove away from her home in a highly emotional and agitated state. By the time Police arrived, the Applicant had returned to his mother’s home and was reported to appear to be “upset”. In the BWV the Applicant appeared to me to be reasonably calm and coherent.

12. Police reviewed text messages the Applicant had sent to his wife. The COPS Event records the following extracts of the text messages:

“... every time I see your face I brake down ill see you again one day”

“... This is when I need you most and your not here this is it for me I can’t take it”

“...all I want is to rap I’m arms around you we all make mistakes I don’t know how long I can do this I love you”

“I’m on a knifes point atm I’ll give you space maybe one day you will forgive me”

13. Police spoke with the Applicant’s wife. Parts of the BWV were extremely difficult to hear because of interference from what appeared to be Police radio. The Respondent contended the following accurately represents the conversation occurred at 8.16 pm:

Police officer: I just spoke to Crystal. She said that there was an incident a while ago where you put a gun to your head. Is that true?

Applicant:   That was seven years ago.

Police officer: Alright, so it was a while ago? Are you feeling about that point now?

Applicant:   Nah.

Police officer: Cos she’s saying you are.

Applicant:   Yeah, I know-

Police officer: Yeah, she’s saying through the messages and there’s quite a lot, I’ve just heard all about it on the phone. She believes you’re at that point again and she’s pretty—essentially pretty concerned for you. Obviously, she’s upset on the phone as well. She doesn’t want to see you—

Applicant:   I know what youse are saying, but you know. I just fucking thought—fucking to death of the kids. I’m not fucking gonna— didn’t do it last time. I’m not gonna do it now. I’m a strong advocate for mental health at work, so ...

14. The Applicant’s immediate response to the first question was not noted and to me, was indecipherable.

15. Mrs English wrote in her statement that she had told Police that years ago the Applicant told her that he felt so overwhelmed and upset about his previous partner leaving him “he felt as though he could see why people hold a gun to their head”. She said that the conversation she had with her husband some time ago just “popped into [her] head” when Police asked if the Applicant had tried to self-harm before. She said that she told Police only what the Applicant had previously told her and she did not have first-hand knowledge of any alleged self-harm event in the past. She said that, if anyone had mental issues it was her – she could “hardly function”. She denied, contrary to the Police representation to the Applicant at the time, that she had any concerns that he might be suicidal at that time. The Applicant’s evidence was that he told Police at the time only that he had “felt like it” 7 years ago and that that was at the time his ex-partner had denied him access to their children.

16. Police arranged an ambulance to convey the Applicant to Campbelltown Hospital under s 22 of the Mental Health Act 2007. On admission a mental health assessment was undertaken, which recorded the associated diagnosis to be an “acute stress reaction”. The reasons for referral, presumably supplied by Police, record that he was brought in with suicidal ideation after an argument with his wife, and that he had a “[s]imilar episode 7yrs ago, access to firearms”. The Applicant reported that the issue “started about a week ago, when he had a severe panic attack at night”. This coincided with the commencement of the disagreement with his wife, and he was not sleeping. He adamantly denied any current thoughts of self-harm or suicidal ideation. He reported suffering from anxiety and panic attacks for around three years, but they have been worse in the past few months. He reported experiencing panic attacks about once a week. The Applicant was discharged from hospital early the next day.

17. Progress notes taken at the time of discharge record that the Applicant reported a history of generalised anxiety disorder and had been on Sertraline (also known as Zoloft, a medication to treat mood disorders such as anxiety, panic attacks and depression) for three years, which was working well until the past few weeks. He reported that he “has had fleeting thoughts of suicide without plans or intent”.

18. The Applicant’s evidence was that, he and his wife had married in 2018 or 2019. She had given up her work in order to care for her 2 children as well as the Applicant’s 3 children, and a foster child – they both had sole custody of their respective children. There were financial pressures. He was working for the local council and they were trying to set up an agistment business. The Applicant said he felt that their marriage had lost some “spark” and, hoping to get a positive reaction from his wife, said - what he now acknowledges was foolish - some things to her that he regrets, including that he planned to move out for a while. He said his plan “backfired” and she told him to go. He took his 2 children (the eldest was independent by this time) and went to his mother’s for a few days. After a couple of days, he arranged for his mother to babysit the children so he could take his wife out for dinner to clear the air. His wife, however, had left the family home and, he subsequently learned, had gone to the pub where she had, uncharacteristically, consumed a lot of alcohol. There she met up an old acquaintance, and stayed at his place that night. She and the acquaintance both denied any intimacy, but the Applicant was very upset nonetheless. He returned to his mother’s. The kids were hounding him about wanting to return home and his mother kept asking him what he was going to do. He told her he just wanted some “headspace”, so drove to a park, put his phone on “do not disturb”, played a few songs and had a cry about maybe having wrecked his life by creating the situation with his wife. His eldest daughter saw him there and told him everyone was worried about him, so he went back to his mother’s. Then, somewhat dramatically he felt, about 8 or 10 Police arrived. He said his head was “exploding”. He said he volunteered to go to the hospital just to shut them all – the Police, his mother and children - up. He did not realise until the next morning that he had been scheduled. He said that he saw a doctor when he was admitted and another doctor before his release the next morning and both considered he was at no risk of self-harm or to others.

19. He said that he and his wife talked the following day and he had a chance to explain that his plan had backfired. She reassured him that nothing had happened between her and her acquaintance. She asked him to come home and 3 days later he returned to the family home. Their relationship has been stronger ever since.

20. Mrs English’s evidence was that she and the Applicant had had an argument and the whole thing got out of proportion. She regarded the Applicant’s mother as prone to over-reaction and had said words to the effect to her: “Well, if you’re that worried, call the Police”. She said she herself had no concerns that night that the Applicant might self-harm.

The Applicant’s previous mental health history

21. The Applicant said he has suffered anxiety since he was about 25. He only sought assistance when he was about 27 (in about 2000) when it “got the better of him”; he was prescribed Valium. While it had initially “calmed [him] down”, it ultimately did not work for him completely. There followed a lot of “trial and error” to get the type of medication and dosage right, and sometimes he would be off medication completely for months. In 2017 he went off his medication but in 2018, because of the stressful effects of his family law proceedings with his ex-partner, his GP put him back on medication. The Applicant’s medical records from Tahmoor Medical Centre show that he was prescribed Sertraline in 2018 and again in March 2022. The records indicate that Sertraline was prescribed primarily to treat the Applicant’s anxiety, but was also used to treat depression. Dr Hathiramani wrote in a report dated 22 November 2023, provided by the Applicant that that the Applicant was prescribed Sertraline for anxiety, not depression. The doctor supported the return of the Applicant’s firearms licence. The Applicant said he sees his GP about his condition a few times a year. He is compliant with his current medication.

22. The Applicant said that at the time of the incident he thinks he was not taking medication.

23. Mrs English gave evidence that she had re-connected with the Applicant in May 2017, they having gone to school together. She said that, at that time, the Applicant was not having anxiety or panic attacks. She found him to be just the opposite of her ex-partner – he was calm, considerate, grounded and just a “nice man”. They each had Family Court proceedings which were not ultimately concluded until late 2021 or early 2022. Further, to add to their stress, her half-brother committed since in January 2022, as did her sister’s husband in May 2022. She also suffered a miscarriage. She explained that she was emotionally withdrawn and distant and struggled with “PTSD” from the suicides and miscarriage as well as both their protracted Family Court proceedings. She “shut down”. Then, on the same day that she was dealing with an injured animal and her daughter suffered a seizure, the Applicant had told her he thought the relationship had lost its spark and he wanted to move out. She was upset when he left with the 2 younger children the next morning and she went to her mother’s with her 2 children. She said she then went to the hotel and began to drink, which she does not ordinarily do. She ran into a former work colleague there and he was concerned about her driving home and offered to take her back to his mother’s home where he lived. She denied any intimacy between them. When she returned home the Applicant was upset to learn she had stayed overnight at the colleague’s, and he left again. She was upset at being left to run the farm on her own and decided to ignore his messages and she “shut down”. She wrote that the Applicant’s mother had phoned her and was “very accusatory” and yelling at her and said that the Applicant was missing. It was then she told her to phone the Police if she was so worried.

24. Mrs English wrote in her statement that the Applicant’s ex-partner and her associates had made their lives very stressful over the years. In that regard I observe that there was a COPS Event dated 22 May 2020, from a person who was a friend of the Applicant’s ex-partner that, on 28 April 2020, the Applicant had posted an image of himself with a rifle on Facebook with the comment, “Locked and loaded”. The Applicant informed Police that he made the post after receiving numerous threats from that person and others and had concerns that they may attend his home. The image was posted in a thread in which the Applicant alluded to the fact that he knew who was responsible for a break in at his mother’s residence. The Applicant said the post was his way of letting them know that he is ready. The Respondent relied on this event as an indication of the Applicant’s disrespect for firearms.

21. On 30 December 2020, a health assessment completed by Dr Khan, the Applicant’s then GP, records depression as a risk factor identified and discussed with the patient. The identified risk factors for depression was recorded as “family circumstances”, referring apparently, to the Applicant’s difficult family law proceedings.

22. Progress notes relating to the incident record that a suicide risk assessment was completed at 9.40 pm, which indicated that the Applicant had previously attempted to self-harm. The notes record, relevantly, that he had once tried to self-harm 7 years beforehand. The Applicant gave evidence about that event, which he thought was in about 2015. He said it was at a time when his relationship with his ex-partner broke down and she was refusing him any access to the children. He had said he “felt like holding a gun to his head”. At that time he did not even have a firearm. He said it was a silly turn of phrase to have used.

The Applicant’s mental health following the incident of August 2022

27. A mental health referral form completed by Devendra Sapkota at Sydney Primary Health Network on 26 September 2022 states:

Reason for referral and/or past history:

Further assessment and management. He has so many issue (sic) with his partner. Not in the (sic) good relationship. I always talk to the treating GP and ask him to refer to Dokotella (sic) for his Psychiatric assessment as well. He was a (sic) suicidal couple of year (sic) ago but not any more. He want (sic) to do better for his kids and provide support to them. He will be benefitted (sic) with Psychologist counselling and support. GP will send us MHTP if needed.

28. Progress notes of the Applicant’s general practitioner, Dr Hathiramani, dated 9 September 2022 record that the Applicant sought referral to a counsellor for anxiety. On 29 September 2022 the Applicant’s mood was recorded as “subjectively depressed” and his affect as “objectively seems depressed”. The Applicant said that from the beginning of 2023 his medication has been increased and it is now working well; he has had no anxiety or panic attacks for at least 1-1.5 years. Before that he had had panic attacks associated with the family law proceedings. He was not aware until recently that his medication is also used to treatment depression, whereas it is prescribed for his anxiety. The Applicant’s medical records from Tahmoor Medical Centre show that that the Applicant was again prescribed Sertraline on 22 November 2023.

29. The Applicant said he and his wife had sought a referral for counselling, not because of his mental health but in order to improve their relationship, and they both attended different counsellors at Community Links Wellbeing. Mrs English’s evidence was also that they sought individual treatment for “our own healing’ and then planned to arrange therapy together.

30. An assessment completed by Lisa Doong, a Low Intensity Cognitive Behaviour Therapy (LICBT) coach at Community Links Wellbeing on 25 October 2022 records that the Applicant “was clinically diagnosed with Anxiety aged 25 years of age and has been on medication prior of diagnoses’’. This is inconsistent with the Applicant’s unchallenged evidence that while he had some symptoms of anxiety when he was 25, he did not seek medical intervention until he was 27. The assessment further states that the Applicant reported that “his anxiety [is] getting worse and suffer[s] with anxiety attacks during his sleep’’. Under the situation/problem statement section, the assessment shows the Applicant is "Rated 6 (very severe)’’. The assessment recommended that the Applicant step up from his low intensity cognitive behavioural therapy to a high intensity program to address the Applicant’s trauma. A mental health reallocation form completed by Ms Doong on 26 October 2022 records that the Applicant was presenting with PTSD. The Applicant said that Ms Doong referred him to Ms Powell, because she, Ms Doong, was not appropriately experienced in advising the Applicant, given some troubling features of his childhood.

31. The Applicant subsequently attended three counselling sessions with Belinda Powell, a mental health clinician at Community Links Wellbeing, on 16 December 2022, 3 February 2023 and 19 April 2023. The Applicant’s evidence was that Ms Powell had told him at his last consultation that there was no need to continue unless he felt the need. This is borne out, to some extent, by Ms Powell’s undated letter supplied by the Applicant, that “We have agreed to continue ongoing therapy as needed”. Ms Powell attempted to contact the Applicant on 19 July 2023 to make an appointment after 90 days of no contact, with no response from the Applicant. He could not explain why she had reached out to him at that time.

32. The last communication with Ms Powell was on 18 September 2023, after the Applicant requested that she complete a medical risk assessment for the purposes of assessing the potential risk of him holding a firearms licence. Ms Powell declined to provide the requested report saying that she did not have enough evidence to complete the risk assessment as they had “only engaged in therapy over a few sessions” and her input “would hold more weight if you were in therapy for maybe 8 to 12 months or longer'’. She states, I really have no idea how you are travelling at the moment or what triggers you still struggle with or medication adherence/chances etc… I just don’t have enough knowledge or evidence to provide them...”. The Applicant said it was only then he discovered that Ms Powell was not a clinical psychologist, only a counsellor, and her report would have not carried sufficient weight in any event.

33. It was then he tried to engage another clinical psychologist to supply a report. He had difficulty securing the services of a clinical psychologist to respond to a request for information about him by the Firearms Registry. After trying to see “about 60”, he was able to engage Istvan Shreiner, clinical psychologist whose report of 3 October 2023 the Applicant provided to the Respondent. Mr Shreiner had available to him the letter requesting the report and the Applicant’s discharge summary dated 27 August 2022. He interviewed the Applicant and administered various lengthy psychological tests. On all tests the Applicant’s scores were within normal range. Overall, the Applicant was considered to be “emotionally balanced”, and showed no symptoms of low mood, anxiety or any serious thought disturbances, and he was not, in Mr Shreiner’s opinion, suffering from any diagnosable psychological or psychiatric condition that would impact upon his ability to exercise continuous or responsible control over firearms. Mr Shreiner was of the view that, at the time of assessment the Applicant did not present any risk to his own safety if he had the possession or use of a firearm.

34. The Respondent was critical of the report of Mr Shreiner, who did not provide the Applicant with treatment, was based on an interview with the Applicant and assessment tests which rely on the Applicant’s self-assessment, nor did he have access to the Applicant’s medical records; he only reviewed the discharge summary dated 27 August 2022.

False information in re-application for firearms licence

35. In his re-application for a firearms licence submitted on 15 December 2020, the Applicant answered “No” to the question:

Have you ever attempted suicide or self-harm, or in the past 12 months been referred or treated for … or a mental or nervous disorder or illness?

36. As part of the application, the Applicant declared that he understood that it is a serious offence under the Act to make a statement or provide information that he knows is false or misleading and certifies that all the information in the application is true and correct in every detail.

37. The Respondent submitted that the Applicant’s response is inconsistent with his previous admission to Police and his medical records, which indicate that the Applicant “previously attempted suicide by holding a gun to his head”. In that regard, the Respondent relied on:

1. the BWV footage of the incident which was said to record the Applicant admitting to Police that he put a gun to his head seven years beforehand.

2. in a suicide risk assessment was undertaken at Campbelltown Hospital following him being scheduled, it was recorded that the Applicant had tried to harm himself seven years prior to the assessment.

3. on 26 September 2022, a mental health referral form completed by Mr Sapkota records that the Applicant “was suicidal couple of year ago but not any more”

4. on 25 October 2022, an assessment was completed by Ms Doong records, “1 past attempts, has a psychotic breakdown and wanted to end his life when he was younger with a gun, guns were taking (sic) away”; and

5. on 16 December 2022, Ms Powell recorded “[h]as historical suicidal thoughts-nil current issues”.

38. The Respondent also relied the Applicant’s evidence and the medical records that the Applicant has been under treatment for a mental health condition.

39. The Applicant’s evidence was that his reading of the question was that it all related to the previous 12 months. In any event, he said, his doctor had never explained that anxiety was a mental health issue; he was unaware that panic attacks and anxiety are “mental health issues” and thought “mental health” referred to depression.

Confidential evidence

40. [Not for publication]

41. [Not for publication]

42. [Not for publication]

43. [Not for publication]

Public interest

44. Before me the Respondent contended that it is not in the public interest for the Applicant to continue to hold a firearms licence as:

1. the Tribunal cannot be satisfied that there would be no real or appreciable risk to public safety in light of the Applicant’s history of mental health concerns; and

2. the Applicant provided false information in his firearms reapplication form by failing to disclose his previous suicide attempt.

45. The expression “public interest” is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the “public interest” is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual. The public interest factor allows a consideration of issues going beyond the character of an Applicant to be taken into account; public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

46. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, past conduct of the Applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].

47. The discretion to make a decision in the public interest is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23]. The underlying principles stated in s 3(1) of the Act 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. Where there is the 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: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].

48. The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. The question of risk is not to be viewed as requiring an Applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66]. The principle in Ward 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. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].

49. In oral submissions, the Respondent also contended that the Applicant had attempted to minimise some aspects of his history.

Mental health concerns

50. The Respondent submitted that I should not be satisfied that, having regard to the Applicant’s mental health history, that there is virtually no risk to public safety (including his own safety) if he were again given access to firearms. The Respondent particularly relied on the comments of Ms Powell, which it was suggested, indicate the Applicant abruptly stopped receiving treatment for worsening mental health conditions, in circumstances where a mental health practitioner was of the view that he required further treatment. I prefer the Applicant’s account that, after seeing Ms Powell 3 times she had said there was no need to continue unless he felt the need and this is consistent with her letter that they had agreed to continue ongoing therapy as needed.

51. The evidence does not lead me to the view that the Applicant has previously attempted self-harm. I observe that in the nearly 10 years the Applicant has held a firearms licence there has never been any attempt to engage in self-harm, notwithstanding the significant emotional stress he has experienced, particularly the long-standing dispute with this ex-partner, even though he had ready access to firearms.

52. The Respondent noted that, following the incident, the Applicant was referred to a “high intensity” counselling program as he presented with PTSD. I am not prepared to read too much into this turn of phrase; there was no evidence as to the protocols surrounding the reallocation process and whether Ms Doong was merely triaging the Applicant and passing him on to a more experienced counsellor, Ms Powell. I do not accept that this amounted to a diagnosis of PTSD.

53. The Respondent submitted that there is insufficient evidence to satisfy the Tribunal that there would be no real or appreciable risk to public safety if the Applicant’s firearms licence was returned to him, and referred to Monjed v Commissioner of Police, NSW Police Force [2019] NSWCATOD 197, where Montgomery SM stated that the Tribunal cannot assume that a change has occurred in an applicant’s conditions merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. It was submitted, that, at this stage, there remains too much uncertainty regarding the Applicant’s mental health.

54. Mr Shreiner found that the Applicant presented no risk to himself or others. His long-term treating GP, Dr Hathiramani, who manages the Applicant’s anxiety, also fully supported the return of the Applicant’s firearms licence. The Applicant does not appear to have a treating psychiatrist, and I have placed significant weight on the views of his treating GP.

55. I consider that Ms Powell’s response to the Applicant’s request for an assessment for the purposes of his licence to be reflective of her concerns about being able to adequately provide a report, rather than some reticence because of her concerns of any risk the Applicant may present to himself or others.

56. I accept that he has a long history of anxiety. Against that background, the Applicant and his wife gave detailed evidence about the unfortunate chain of events leading up the incident which precipitated the revocation of the Applicant’s licence. The saga was of 2 people having come out of very difficult relationships, financial and other stresses in their own relationship, miscommunication and possible unwelcome interference by the Applicant’s mother. They considered the whole thing had blown out of all proportion. I am inclined to agree.

False information in licence application

57. The Respondent that it is apparent from the evidence that the Applicant provided false information in his application and that raises concerns about the Applicant’s candour.

58. Recently, in GGJ v Commissioner of Police, NSW Police Force [2024] NSWCATAD 73 I said at [13]:

The success of the licensing regime is dependent on licensees providing a full and frank disclosure In their communications with the Registry: Weckert v Commissioner of Police, NSW Police Force [2011] NSWADT 197. Those who have not done so, despite posing no other risk, may nevertheless fail the 'public interest’ test as their conduct threatens the success and integrity of the licensing regime.

The seriousness of deliberate failures in this regard is reflected In the offence in s 70 of the Act which provides that a person must not, or in connection with an application under the Act, make a statement or provide information that the person knows is false or misleading with a material matter. Contravention of this section could incur a punishment by imprisonment of up to 5 years. The Tribunal has pointed out that the operation of the legislative scheme depends on applicants providing true information: Leatham V Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 121, [18]; Keys v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 91 at [104].

59. In regard to the answer to the question 'Have you ever attempted suicide or self-harm?’, the Applicant maintained that he has never attempted suicide or self-harm. In that context, his answer is consistent with his firm evidence that he has never attempted self-harm. I have expressed concerns about the alleged admissions that he had attempted self-harm in the past and I do not consider the evidence supports a finding that this was the case. I accept that, as to that part of the question he answered correctly.

60. The Applicant’s evidence was also that he did not understand that he was being treated for a “mental or nervous disorder or illness” because he thought the question related to depression. In any event, the Applicant, on his evidence, over the years has had periods when he was not medicated at all. There was evidence that he was prescribed Sertraline in 2018, it was unclear if he was taking medication in the 12 months prior to completion of his application in 2020.

61. The Applicant left school at the end of Year 10. He does not profess to be skilled with words; his wife assisted him in making his written submissions. The texts between him and his wife leading up to the incident do not reflect a high language competency, particularly with respect to grammar.

62. In the circumstances, I accept that the Applicant did not intend to mislead the Respondent by providing false information. In those circumstances I accept that the form may have been misconstrued and I accept that the Applicant was not engaging in an attempt to deceive Police.

Other concerns

63. The Respondent raised other concerns about aspects of the Applicant’s conduct. For example, it was submitted that the Applicant’s Facebook post of an image of himself holding a rifle with the comment, “Locked and loaded”, reflects an irresponsible attitude to dangerous weapons. I have discussed above the circumstances in which he made the post. While it was perhaps ill-advised, I accept that he had no intention of using firearms inappropriately notwithstanding the ongoing provocation of his ex-partner and her associates.

63. He had 2 convictions in 2004 concerning obstructing Police and assaulting a Police officer. As the offences occurred 20 years ago, I have placed little weight on them. The Applicant also has an unimpressive driving record, but in the last 3 years he has only come to attention - for speeding – on 2 occasions.

Conclusion

65. The Applicant gave evidence that on his 25 acre farm he has had extensive problems with feral dogs and other wild animals attacking his livestock. His entire flock of 36 chickens (which he breeds) was wiped out by a fox, which continued to invade the property. He has had to euthanise animals that have been attacked, and horses with agonising twisted bowels. Since his firearms licence was revoked he has had to watch a horse with a shattered leg suffer while he waited 2 hours for vet to come to put it down, and he has continued to lose livestock to feral animals. He and his wife hope to open their farm for NDIS rehabilitation purposes, so there is an additional reason to preserve the livestock from predators.

66. I accept that, there is some public interest in farmers and graziers having access to long arms: McGrath v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 98 (McGrath) at [66]. The caveat in McGrath is that those on the land having access to firearms must be law-abiding. It is well established that the likelihood of public safety risks is to be assessed by reference to an Applicant’s prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41]. There was no evidence that, other than the offences in 2004 and some speeding charges in recent years, the Applicant is not otherwise than law-abiding.

67. As to the Applicant’s character witnesses, all wrote in very positive terms about him. Mr Saffuri, a police officer, was contacted by the Applicant on the night of the incident, and collected him on discharge after being scheduled. The Respondent was critical of the Applicant’s references, but Mr Saffuri at least was well aware of the circumstances that gave rise to the revocation of the Applicant’s licence - have afforded his reference particular weight.

68. In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be taken into account. It is clear that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant’s interest in holding a firearms licence. I do not find the Applicant to present a real and appreciable risk to himself or to public safety.

69. Therefore, in all the circumstances, I am reasonably satisfied, based on public interest grounds, that it would not be contrary to the public interest for the Applicant to continue to hold a firearms licence.

DECISION

70. The decision under review is set aside.

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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: 17 April 2024