Fitch v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 218

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Fitch v Commissioner of Police, NSW Police Force [2023] NSWCATAD 218

Hearing dates:

18 May 2023, 13 July 2023

Date of orders:

14 August 2023

Decision date:

14 August 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

1. The decision to refuse the Applicant’s application    for a Category AB firearms licence is set    aside.

2. The decision is made that the application is    granted.

Catchwords:

ADMINISTRATIVE LAW – Firearms licence refusal - fit and proper person - public interest – criminal history - traffic offences

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Evidence Act 1995

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

Busutel v Commissioner of Police, NSW Police Force [2022] NSWCATAD 384

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

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

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

Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65

Drake v Minister for Immigration and Ethnic Affairs (1979) NSW 2 ALD 60

Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70

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

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

Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127

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

Keegan Jaques v Commissioner of Police [2017] NSWCATAD 145

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

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

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA66; (1992) 110 ALR 449.

Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

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

Category:

Principal judgment

Parties:

Jamie Fitch (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Makinson d'Apice Lawyers (Respondent)

File Number(s):

2022/00268210

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Mr Jamie Fitch (“the Applicant”) for review of a decision by a delegate of the Commissioner of Police, NSW Police Force (“the Respondent”) under the Firearms Act 1996 (“the Act”). The decision was to refuse the Applicant’s application for a category AB firearms licence under the Act.

2. The refusal was based on the Applicant’s criminal history and concerns relating to his mental health. The Commissioner’s delegate formed the view that it was not in the public interest for the Applicant to hold a firearms licence.

3. The decision to refuse the application was affirmed on internal review.

Background

4. The Applicant applied for a firearms licence for the genuine reasons of Sport/Target Shooting and Recreational Hunting/Vermin Control - Hunting club membership. He provided evidence of his membership of the Hunter District Hunting Club.

5. In making the decision to refuse the application, the Respondent referred to the Applicant’s criminal history and noted that the Applicant had been convicted of the following offences:

• 25 April 2008: Contravene prohibition / restriction in AVO (Domestic);

• 25 April 2008: Common assault -T2;

• 25 April 2008: Destroy or damage property <= $2000 -T2;

• 25 April 2008: Enter building/land w/i commit indictable offence – T1;

• 29 May 2002: Break and enter w/i (steal) - T1.

6. The Commissioner's delegate was of the opinion that these incidents directly compromised public safety and raise concerns that the Applicant cannot be trusted to exercise continuous and responsible control over firearms.

7. The Respondent holds concerns regarding the Applicant’s psychological history and history of drug use.

8. The Applicant has acknowledged his criminal history. He has provided character references and evidence of completion of an Alcohol Rehabilitation Program.

The issue for determination

9. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner’s decision and, specifically, whether 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.

10. The Respondent has also expressed concerns in relation to the Applicant’s psychological history. It is necessary to consider the question of whether the Applicant’s mental health would impact on his ability to possess and use firearms safely.

Nature of Proceedings

11. The Respondent’s solicitor, Mr Regener, provided a useful summary of the approach to be taken in these proceedings. I adopt that summary.

12. 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 Act. The Tribunal’s jurisdiction includes review of a decision by the Commissioner to refuse an application for a firearms licence.

13. Section 63(1) of the ADR Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: see McDonald v Director General of Social Security (1984) 1 FCR 354 at [357].

14. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material so as to either confirm the original decision, vary it, or set it aside and substitute another. It was said in Drake v Minister for Immigration and Ethnic Affairs (1979) NSW 2 ALD 60 at [77] (albeit in another context) that

"[the] duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made."

15. Under section 38(2) of the Civil and Administrative Tribunal Act 2013, 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.

16. The Tribunal can consider circumstances that would amount to a breach of the firearms legislation, regardless of whether or not an applicant has been convicted of an offence relating to any such breach. It is the conduct rather than the conviction that is of concern to the tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30].

17. The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. There is, however, no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at paragraphs [28] - [34]. The civil standard applies even if the conduct in question may be criminal: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA66; (1992) 110 ALR 449.

18. The civil standard of proof - the balance of probabilities — is set out in section 140 of the Evidence Act 1995, as follows:

1. In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

2. Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)   the nature of the cause of action or defence, and

   (b)   the nature of the subject-matter of the proceeding, and

   (c)   the gravity of the matters alleged.

   19. The Respondent contends that the application should be refused on the basis that the Applicant is not a fit and proper person to hold a firearms licence and that it would be contrary to the public interest for him to do so.

   20. Section 11 (3)(a) of the Act prescribes that a firearms 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 or to the peace.

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

   22. In these proceedings the Tribunal has the same powers as given to the Commissioner under the Act.

Fit and proper person

23. The Act places an emphasis on the need for licensees being fit and proper for the role. The Tribunal has considered the issue of whether an applicant is a fit and proper person to hold a licence under the Act on numerous occasions.

24. The question of fitness and propriety is one of fact to be determined objectively, considering all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].

25. In the context of the Act, fitness and propriety “must be considered in the context of at all times ensuring public safety”: Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at paragraph [22].

26. The question of a person’s fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, 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.

27. They went on to say at 388:

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

28. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.

29. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term ‘fit and proper’ (at 156-7):

"The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”— Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

Public interest

30. 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."

31. 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.

32. “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.

33. 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].

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

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

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

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

36. 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].

37. 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.

Material before the Tribunal

38. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act (“the section 58 material”). This material includes a number of records held in the Respondent’s electronic database (“COPs”). The section 58 material includes information about the circumstances surrounding the Applicant’s offences. A significant amount of material was produced under summons and the respondent has referred to some of that material. The Respondent’s solicitors also provided written and oral submissions.

39. The Applicant relies on his own evidence and submission; character references from his manager, Mr Nathan Brown, Site/Project Manager, Mr Matthew Schuster, his aunt, Diane Wykes-Elvy, and his friend and AA sponsor, Mr Brad Minors. He relies on a report from Mr Michael Kruger-Davis, Psychologist and a letter from his medical practitioner. He also provided a Certificate of Achievement from Road Sense Australia dated 28 February 2023 which shows that he has completed a traffic offender intervention program. The Applicant attended the hearing, gave evidence, and was cross-examined.

Character reference from Mr Nathan Brown

40. In a character reference dated 21 February 2023, Mr Brown wrote:

I have known Jamie Fitch through my employment at Monadeiphous Engineering as a Manger - Southern Operations where Jamie has been employed as a tradesman boilermaker. I have known Jamie at Monadelphous since 2017.

Over Jamie's time with Monadelphous I have known him to be a very reliable and responsible person and conducting himself in a safe and courteous manner to his other peers. At the start of 2022, Jamie has furthered his career by obtaining his rope access accreditation and spending time with that part of our business.

In more recent times Jamie has joined my team as a leading hand boilermaker. He is now on site and has 8 + trades reporting to him daily and during the customers scheduled shutdown's he can have up to 15 + trades reporting to him that he is responsible for. Jamie has embraced his role and has shown true commitment to his safety and others, also aligning to our company values and representing Monadelphous to our customer.

The work we preform across our customers sites is high risk and we often risk assessing our environments, Jamie shows true alignment and ownership to the safety standards both of Monadelphous and that of which customers require. He instils these standards into his crew.

Monadelphous conduct's random D&A testing each month to 10% of its workforce, to which when Jamie has been selected has always produced a negative result. On our customers sites Jamie is subject to BAC testing each morning before logging onto the sites system, again has always produced a negative result.

In closing, I feel Jamie Fitch to be a loyal, trustworthy and a responsible leader in my business and to represent Monadelphous.

41. Mr Brown was not required for cross-examination.

Kruger-Davis Report

42. Mr Kruger-Davis is a psychologist who was consulted to complete a mental health assessment in regard to the Applicant and his suitability to have access to firearms. His report discussed the Applicant’s background and noted a traumatic and dysfunctional childhood. It also referred to the Applicant having been in a volatile, dysfunctional, alcohol and drug fuelled and violent relationship with a partner who was diagnosed as BiPolar, Borderline Personality Disorder and PTSD.

43. Mr Kruger-Davis outlined that approach that he had taken to the assessment, and he identified a number of risk factors and he found no apparent risks in regard to each factor. He pointed to a low-risk range of alcohol use disorder. The Applicant was within normal range for the Beck Depression Inventory and within the minimal anxiety range of the Beck Anxiety Inventory. There was no indication of depression, anxiety or overwhelming stress. In regard to the suicide risk assessment Mr Kruger-Davis found that:

Mr Fitch's suicide risk profile is currently extremely low. No safety plan is necessary because no plan, intent or suicide ideation exists.

44. It is not in dispute that the Applicant’s medical records refer to self-harm. The Applicant denies that he has been suicidal. Mr Kruger-Davis addressed this issue in his report and stated:

I asked Mr Fitch about the comment on his medical records regarding self-harm. Mr Fitch was confused about this comment because he believed that it related to his ex-partner, … who had been diagnosed with BiPolar, Borderline Personality Disorder and PTSD. He stated that the Senior Member at the NCAT hearing had asked if he could check with the Doctor who made the comment but Jamie thought this would be difficult.

In the letter from Dr Natalie Chin, All Ways Healthcare, Cessnock dated 09/08/22 (p 141 of subpoenaed health records) to the Firearms Registry, Dr Chin stated that "Jamie has a history of drug (amphetamines, benzodiazepine, marijuana) abuse and alcohol abuse. He reports one case of unintentional overdose in 2007-2008 in the context of substance-related dysphoria."

The phrase substance-related dysphoria is significant because Mr Fitch is now 'clean and dry' and while he remains so, is unlikely to ever be in a same state ever again.

Dr Chin continues, "As I refer to consult notes from 2012 onwards, including mental health consultation in 2012, 2014 and a mental health plan in 2018, there is no evidence of him having ongoing drug and alcohol abuse or mental health issues."

In the final paragraph she states, "he does demonstrate to have made positive life changes which have been consistent with for close to 10 years, based on his medical records."

This is also consistent with his narrative provided during the video clinical interview.

The precipitating factors and perpetuating factors that may have contributed to the 'unintentional overdose' in 2007-2008 no longer exist. He also has significant protective factors and problem-solving strategies to deal with stressors in his life.

Because he works in the mines, he is required to undergo random drug screening and daily alcohol screening. Mr Fitch has never failed a screening test.

45. Mr Kruger-Davis concluded:

Based on the assessments and interviews with Mr Fitch, it is my opinion that he is fit and proper to possess and use firearms, in accordance with the legislation.

FORMULATION

In formulating my opinion, I have considered the following:

• Mr Fitch presents to be of 'sound mind'.

• On assessment he does not currently present with depression, anxiety, or overwhelming psychological distress. He does not have a mental disorder, personality disorder or substance abuse disorder as listed in the Diagnostic and Statistical Manual of Mental Disorders; Fifth Edition (DSM-V).

• He does not drink alcohol and does take illicit or prescribed drugs that would impact on his ability to possess and use firearms.

• He does not take or abuse prescription medication.

• He does not hold criminal associations.

• Mr Fitch does not pose a suicide risk. There are no predisposing, precipitating or perpetuating factors that would elevate his suicide risk profile. He has a number of sound protective factors that indicate he is looking forward to his future. He currently holds no fears for the future.

• Due to his changed lifestyle, and the absence of the precipitating and perpetuating factors that were evident in 2007-2008, the 'unintentional overdose' has little influence on his current mental health status. He also can now demonstrate a number of protective factors and problem-solving strategies to deal with life's stressors in a socially appropriate and healthy way.

• There are currently no factors that would indicate he would not be able to exercise will power and continuous control if he were to possess and use firearms.

• Mr Fitch now makes decisions using his prefrontal cortex (executive function centre) rather than responding to external stimulus (Fight/flight/freeze limbic system response).

• Mr Fitch's Global Assessment of Functioning is very high (90-95) A score of 90-95 would indicate Superior functioning in a wide range of activities, life's problems never seem to get out of hand, is sought out by others because of his many positive qualities. No symptoms.

• He is in a stable and caring relationship. He does not drink alcohol or use drugs. He has a responsible and meaningful job where he has to supervise the work of others in high-risk industries. He has to submit to random drug test and regular alcohol screening at work. He is able to care for himself, his partner, his children and his partner's children. He is financially solvent and owns two properties. He does not gamble.

• He holds no current suicidal ideation, nor does he practise non-suicidal self-harm.

• Mr Fitch has a recreational hunting licence to hunt in State Forests using a bow and arrow.

In my expert opinion, when Mr Fitch answered questions regarding his background, the concerns the NSW Police raised in the refusal of his application and the mental status examination and suicide risk assessment, I found his narrative to be truthful and honest and I could not detect any indications of any intent to deceive or otherwise influence the substantive effect of my report. The clinical interview, mental status examination and suicide risk assessments are standard psychological practises for conducting mental health assessments. These are coupled with empirical assessments that have inbuilt reliability and validity measures. My 37 years as a psychologist allows me to identify most attempts to deceive when interviewing clients.

From the information provided above, it is my professional opinion, that Mr Fitch is of sound mind and would be able to exercise rational judgement and responsible control over the possession and use of firearms.

It is my professional opinion, Mr Fitch is very unlikely to pose a threat to the public or himself, if he were to possess or use firearms.

46. Mr Kruger-Davis was not required for cross-examination.

The Respondent’s Case

47. As noted, the Respondent submits that the correct and preferable decision is to refuse to grant the licence that the Applicant is seeking. She did not rely on any witness evidence and did not seek to cross-examine or test further the Applicant's evidence other than through cross-examination of the Applicant.

48. The Respondent bases her position on the grounds that it is contrary to the public interest for the Applicant to have a firearms licence. She contends that the risk to the public is not outweighed by the Applicant’s desire to have a licence for recreational purposes. The Respondent points to several issues in support of her position.

49. Firstly, the Respondent has concerns regarding the Applicant's mental health. These concerns were first raised upon review of various custody records from 2007 and 2008 which record that while in police custody the Applicant made admissions regarding suffering from depression and anxiety, and being treated with medication for same.

50. In a letter dated 9 August 2022 Dr Natalie Chin identified that the Applicant has a history of alcohol and drug (amphetamines, benzodiazepines, marijuana) abuse and had mental health consultations in 2012, 2014 and a mental health care plan in 2018.

51. Dr Chin also stated that there is no evidence of the Applicant having ongoing issues with mental health disorders. However, the Respondent submits that Dr Chin's assessment should be given no weight as it fails to set out sufficient details and reasoning to support the opinion. Further, Dr Chin did not address the Respondent’s concerns regarding risks associated with the Applicant being in possession of firearms.

52. The Respondent notes that the Applicant was referred to Ms Lisa Sales, psychologist, in January 2019. The referral identified a history of depression, anxiety/stress, past suicidal attempt, and history of self-harm. However, Ms Sales confirmed that she had never seen the Applicant.

53. The Respondent contends that this record not only alludes to a significant history of mental health troubles, but it also suggests that the Applicant failed to disclose a full account of his mental health history.

54. The Respondent submits that the efficient operation of the firearms legislative scheme depends on applicants providing true and correct information in a comprehensible manner and the Firearms Registry being able to rely on the accuracy of information supplied by licensees and applicants. An applicant's conduct and lack of understanding of the need for accuracy, candour and frankness are factors that can be considered when assessing whether it is in the public interest for an applicant to hold a firearms licence.

55. The Respondent submits that the Applicant has a serious history of alcohol abuse and associated domestic violence and that, given this history, the licence should not be granted. It is submitted that to grant a licence is not in the public interest because of the potential for future relapses.

56. The Respondent drew attention to a domestic incident in December 2009. Police notes record that at the Applicant’s ex-partner alleged that the Applicant had threatened to kill her. The police attended the home, and the ex-partner was taken to hospital with injuries that were apparently related to a fall. It appears that no further action was taken.

57. The Respondent also points to the Applicant’s extensive traffic record, and noted 21 detected offences/incidents since April 2004. The most recent infringements were recorded in 2021. The Respondent draws particular attention to an incident in September 2006. Police notes record that at the time of the incident, a vehicle was driven by the Applicant’s ex-partner. The Applicant was seated in the front passenger seat and their 6 months old child was in an approved baby seat in the rear. The Police notes record that:

Whilst driving the [driver] and passenger have been having a heated argument. At the time the [driver] was alleged to have been travelling at a speed well above the posted 60km/h limited area. As the accused drove at speed passing the Bogas Service Station, the [Applicant], has pulled on the handbrake attempting to slow the vehicle down. This caused the vehicle to fishtail.

The accused [driver], continued north on Blackwall Rd. and after negotiating a sharp left hand bend, was tailgating a vehicle before overtaking it at speed and in a manner dangerous given the peak hour traffic.

The [Applicant] has then grabbed the handbrake again and applied it. This resulted in the [driver] losing control of the vehicle. The vehicle fishtailed left and right and then spun 180 degrees and impacted with the kerb. This

caused the vehicle to roll onto its side and come to rest against the fence of ...

The [driver] and [the Applicant] were both trapped for a short time and passerbys removed them and the child … from the vehicle.

Traffic at the time was considered heavy as it was peak hour and the manner in which the vehicle was being driven was extremely dangerous not only to the occupants, but to the 6 month old child in the vehicle but the other road users surrounding the … vehicle.

It appears as though the driver and passenger’s actions have had a direct impact on the vehicle rolling and endangering the life of the child.

58. It is submitted that his repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme designed to ensure public safety and for the law generally. Notably, traffic laws and the firearms legislation are both directed towards ensuring public safety. An applicant's disregard for the traffic laws and regulations may be relevant to the criteria for a firearms licence. In Keegan Jaques v Commissioner of Police [2017] NSWCATAD 145, Scahill SM said at paragraph [81]:

"The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety."

59. It is submitted that it would be contrary to the public interest for the Applicant to hold a firearms licence as he has a propensity to disobey traffic laws and regulations. The significant number of traffic offences over a lengthy period of time indicates that the Applicant has a poor attitude to a regulatory scheme that is designed to ensure public safety. In the circumstances he cannot be trusted to comply with strict requirements imposed on licence holders under the Act to ensure public safety.

60. The Respondent referred to views the I expressed in the matter of Busutel v Commissioner of Police, NSW Police Force [2022] NSWCATAD 384. The Respondent contends that in that matter Mr Busutel had a similar traffic history to the Applicant and that I found that it was not in the public interest for Mr Busutel to hold a firearms licence. I commented that more would be required than the mere passage of time to show that Mr Busutel had changed his ways and undergone reformation of character.

61. In the present matter, the Respondent accepts that the Applicant has been sober since 2013 and that his drug and alcohol abuse issues are now historical.

62. Despite this, it is submitted that the Applicant was not, and is not, a fit and proper person to hold a firearms licence and that he cannot be trusted to have possession of firearms without danger to public safety or to the peace. The Respondent bases this view on similar considerations to that identified in relation to the public interest. These include the Applicant's criminal history, his traffic record which demonstrates a propensity to disregard the traffic laws and the Respondent’s concerns regarding the Applicant's mental health.

63. The Respondent acknowledged the report of Mr Kruger-Davis and his views in relation to the Applicant. However, it is submitted that notwithstanding those views, the records show that he is subject to pressure and stressed because of his dealings with his ex-partner. It is further submitted that while the Applicant may be stable at the moment, any change in the risk factors that Mr Kruger-Davis identified could potentially result in serious consequences if the Applicant had access to firearms.

64. The Respondent submits that the Applicant's desire to hold a firearms licence to undertake recreational activities cannot outweigh the public's needs to be confident that those afforded the privilege of a firearms licence can do so without risk to public safety. It is submitted that, when all the circumstances are considered, the Tribunal could not be satisfied that there is virtually no risk to public safety should the Applicant have access to firearms. Therefore, it is submitted, the correct and preferable decision is to affirm the Commissioner's decision.

The Applicant’s case

65. As noted, the Applicant relies on his own evidence and also the material that has been filed in support of his application, including the report of Mr Kruger-Davis, character references and a Certificate showing that he had completed a traffic offender intervention program.

66. The Applicant has acknowledged his criminal history and traffic record and he does not dispute the details provided in regard to his past behaviour. In particular he acknowledged his alcohol dependency and drug abuse. He stated that this background is a source of great personal embarrassment and that he regrets the pain, disappointment, and embarrassment that he has caused to others. He apologised for the poor decisions that he made in the past. He stated that alcohol and drugs caused him to do things that he sincerely regrets and for which he holds great remorse.

67. He accepts that he has a history of depression and anxiety but he denied that he had attempted suicide of that he has a history of self-harm. However, he accepted that alcohol and drug dependence might be regarded as self-harm.

68. In regard to the Respondent’s evidence that he was referred to Ms Lisa Sales, psychologist, in January 2019 but that he did not attend, he noted that he while he did not see, Ms Sales the records show that he commenced counselling sessions the following day. He was unable to get an appointment with Ms Sales.

69. The Applicant’s evidence is that he sought help because of issues related to dealing with his ex-partner and children. He said that he now seeks help rather than reverting to how he used to be. He now knows when to seek help.

70. His evidence is that in 2008 he was introduced to Alcoholics Anonymous (“AA”) and started attending meetings regularly. He came to a realisation about the effects of his self-destructive behaviour and realised that he needed to change his way of living. In December 2010 he completed a '12 Step' based drug and alcohol rehabilitation program. He stated that he has remained an active member of AA and that he has not consumed alcohol of illegal drugs since 17 February 2013.

71. With the exception of a 6-month break due to a downturn in business during the COVID pandemic in 2020 he has been in continuous employment with Monadelphous Engineering since 2017. He accepts that his driving record includes breaches for speeding and placed this in the context that he drives approximately 50,000 km per year in relation to his work. He stated that he has take steps to improve his compliance with the road rules by changing to a more appropriate vehicle and he has completed a driver re-education and safe driving course.

65. In relation to the incident in September 2006 the Applicant’s evidence was that his ex-partner was driving erratically at high speed and that he was trying to control her driving to protect his 6 months old daughter.

66. In relation to the domestic dispute in December 2009 the Applicant’s evidence was that both he and his ex-partner were highly intoxicated. He has no recollection of threatening to kill his ex-partner.

67. His evidence is that his personal life today is a far cry from his childhood and earlier adult life. He stated that with the help of a 12-step program of recovery, supportive friends, and family, he has successfully turned his life around from alcohol dependency and drug abuse. He said that he has a whole new outlook on life, has accepted his responsibilities to his family and has become a productive member of society. He has had a lengthy period of stable employment and takes very seriously his responsibility for the safety of work colleagues.

68. He relies on his character references and testimonials as support for his own evidence in regard to his changed circumstances. In addition to the report from Mr Kruger-Davis, he also provided a letter from his treating medical practice stating that his medical records from 2012 show that “there is no evidence of him having ongoing issues with drug and alcohol abuse or mental health disorder”.

69. In relation to the Respondent’s concerns that he may suffer a relapse and return to his previous dependencies, the Applicant stated that he is now aware of the need to seek help when under stress. He said that he is a responsible father and stepfather and that he has too much to lose to return to his previous behaviour.

70. In the circumstances he says that the Tribunal can be satisfied that there is virtually no risk to public safety if he is given a firearms licence.

Consideration

78. This is a matter in which there is a clear distinction between the Applicant’s behaviour when he was alcohol and drug dependent and the current circumstances.

79. All the evidence before me points to a person who has strived to overcome a past that was characterised by drug and alcohol dependency and domestic violence. It is apparent from the unchallenged character references that have been provided that the Applicant’s claim that he has turned his life around, has accepted his family and work responsibilities and has become a productive member of society is justified.

80. The evidence also suggests that the Applicant does not have any ongoing mental health issues that would impact on his ability to use firearms safely.

81. I note the view held by Mr Kruger-Davis that:

1. There are currently no factors that would indicate he would not be able to exercise will power and continuous control if he were to possess and use firearms; and

2. He is in a stable and caring relationship. He does not drink alcohol or use drugs. He has a responsible and meaningful job where he has to supervise the work of others in high-risk industries. He has to submit to random drug test and regular alcohol screening at work. He is able to care for himself, his partner, his children and his partner's children. He is financially solvent and owns two properties. He does not gamble.

82. I accept that view to be an accurate assessment of the Applicant’s present situation.

83. In regard to the Applicant’s traffic record, I note that the Respondent has provided a summary of the infringements dating from 2004. The record for the last 10 years is shown as follows:

9 November 2012	Not comply with conditions of provisional licence (not display P signs) as required
14 August 2014	Not stop at red arrow
20 May 2015	Stop in bus zone (School zone)
30 October 2017	Disobey traffic lights
26 February 2019	Exceed speed limit < 10 km/h
14 August 2019	Exceed speed limit <10 km/h
20 March 2021	Disobey traffic lights
2 May 2021	Not comply with conditions of learner licence (not display L sign(s)) as required
7 November 2021	Exceed speed limit> 10 km/h but < 20 km/h
30 November 2021	Exceed speed limit < 10 km/h

84. While I agree with the Respondent that this record is poor, in the context of the extreme distances that the Applicant is required to travel it compares favourably with the record of the applicant in Busutel v Commissioner of Police and the applicant in Keegan Jaques v Commissioner of Police. In my view, it is also significant that the Applicant has undertaken a traffic offender intervention program and there have been no infringements since 2021.

85. I agree with the Respondent that traffic laws and regulations are designed to ensure public safety. However, In the circumstances of this matter I do not agree that the Applicant’s traffic record leads to the conclusion that he cannot be trusted to comply with strict requirements imposed on licence holders under the Act. In my view, the traffic record should not prevent him from holding a firearms licence.

86. In the circumstances it is my view that there is virtually no risk to public safety if the Applicant is given access to firearms. I am satisfied that he is a fit and proper person to hold a firearms licence. I am not satisfied that it would be contrary to the public interest for him to be given a licence.

87. It follows, that the correct and preferable decision is to set aside the decision to refuse to grant the licence application, and in its place the order should be made that the licence is granted. The Applicant will need to provide the Respondent with evidence of his membership of a relevant hunting club before the licence can be issued.

Orders

1. The decision to refuse the Applicant’s application for a Category AB firearms licence is set aside.

2. The decision is made that the application is granted.

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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: 15 August 2023