Freind v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 163

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Freind v Commissioner of Police, NSW Police Force [2024] NSWCATAD 163

Hearing dates:

8 March 2024; 22 March 2024

Date of orders:

17 June 2024

Decision date:

17 June 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

Administrative Law – firearms – mental health issues - failure to declare – public interest.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Cases Cited:

BSR v Office of the Children’s Guardian [2015] NSWCATAD 264

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

Constantin v Commissioner of Police [2013] NSWADTAP 16

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

Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7

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

Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159

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

Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206

Meacham v Commissioner of Police [2020] NSWCATAP 107

Ward v Commissioner of Police [2000] NSWADT 28

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

Category:

Principal judgment

Parties:

Brenton Wayne Freind (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
J Curtin (Respondent)

Solicitors:
JSM Lawyers & Notaries (Applicant)
NSW Police Force (Respondent)

File Number(s):

2023/00183777

Publication restriction:

Nil

Reasons for Decision

Introduction

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

2. The Applicant has held a firearms licence since 2002. His stated genuine reason for using and possessing firearms is for 'sport/target shooting' and 'recreational hunting/vermin control.' He is a member of Marrickville Rifle Club.

3. He applied for the renewal of the licence in August 2022 and the Firearms Registry requested further information regarding his mental health. In response, he provided a letter from his GP, Dr Felix Choi. Dr Choi had indicated that the Applicant holds a Department of Veterans' Affairs (“DVA”) white card and advised:

“His accepted conditions are Mental health (including treatment for Anxiety and Depression) and Low back contusion/lumbar spondylosis.

In regards to his mental health is currently stable and now off medications. He was last on medications in 2019.

He (sic) mental health occurred in relation to high stress while on deployment which has now ceased. There is little risk or relapse.

I do not feel he is a risk to the public for the use of firearms.”

4. The Applicant’s licence was suspended in September 2022 due to the information provided by Dr Choi and the Applicant’s failure to provide an assessment from a psychiatrist or psychologist.

5. The application for renewal was refused in December 2022. The refusal was affirmed on internal review.

6. The Applicant then re-applied for a firearms licence and subsequently sought internal review of the refusal. The internal review was finalised in May 2023 affirming the decision to refuse the application.

7. The Applicant has applied to the Tribunal for external review of the Respondent’s decision. In support of the application, the Applicant has provided a report from his psychologist, Mr Edmond Chiu.

Background

8. The internal review reasons for decision provides a reasonable summary of the background that led to the decision to refuse the licence application. The internal reviewer stated:

… you applied for a Category AB firearms licence on 14 July 2017 and answered 'No' to the following personal history question on your application:

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

…

In reaching this decision I have reviewed the medical assessment dated 10 December 2022 and note that your psychologist, Mr Chiu met with you on two occasions for a total of two hours citing that he had not seen you prior to this and was not familiar with you or your background. It is also noted that the assessment was largely based on your self-report.

Mr Chiu reports that you were diagnosed with major depressive disorder by Dr Hardwick following a Navy posting in 2016. You report to Mr Chiu that you do not experience any depressive symptoms, although you may feel down for approximately thirty minutes when seeing Navy related content on the news or social media. The report indicates that you stopped taking anti-depressant medication in 2019 as reported in Dr Choi's letter and Dr Hardwick's clinical notes.

Although, Mr Chiu reports that he believes that you are suitable to be approved for a firearms licence, I must take into consideration that he was not your treating psychologist whilst you were being treated for your depression. He was appointed to provide a mental health assessment which directly relates to your suitability to retain a firearms licence. I acknowledge that the material used to make the assessment included Dr Hardwick's clinical notes, however, it appears that Mr Chiu's opinion is mostly reliant on information that you have provided during your sessions.

Dr Hardwick's clinical notes indicate that he (sic) first met with you on 19 October 2016 and had seen reports written by the previous psychologist over 2015 and 2016. You advised Dr Hardwick that your anxiety and depressive symptoms began whilst deployed in 2014. The notes indicate that you saw a psychologist for approximately twenty sessions before being referred to Dr Hardwick for your ongoing depressive symptoms.

In 2017, Dr Hardwick reported that you will need long term psychiatric support and medication however clinical notes available from 2019 indicate that you ceased medication completely advising your doctor that you felt fine off the medication. Dr Choi reports that your mental health is currently stable and that you were last on medications in 2019.

I acknowledge that your assessing psychologist and GP have provided positive feedback regarding your mental health however Mr Chiu's recommendations are made on the condition that your Naval and Forensic/Legal records are checked. The Firearms Registry has no access to such records.

I also refer to your firearms licence application, submitted by you on 14 July 2017, where you answered 'No' to the personal history question mentioned above. I have factored in section 70 of the Firearms Act 1996 which provides that in or in connection with a licence application a person must not make a statement or provide information that the person knows is false or misleading. The information you provided in answer to the question of whether you have 'been referred or treated for a mental or nervous disorder or illness within the last twelve months' is material. By answering 'No’ to this question when you clearly had been treated and referred for a mental illness within twelve months preceding the application, you have contravened section 70 of the Act.

I consider this question straight forward with little room for misinterpretation and on balance, I conclude that you knowingly provided false information on your application. In the context of public safety, it is critical that firearms licence applicants provide truthful information regarding their circumstances. Had you answered this question truthfully, a different outcome may have been reached on the licence that was issued.

9. The Applicant held a position with the Royal Australian Navy (“RAN”) for about 20 years. He suffered from anxiety and depression from about 2014 and he was diagnosed with Major Depressive Disorder (“MDD”) in November 2016. He applied for a discharge from the RAN due to not wishing to return to a sea-going posting. He states that did not seek a discharge on medical grounds. However, as he was undergoing medical treatment within the three months prior to his intended discharge date, the RAN decided that his discharge was to be on medical grounds. He was discharged from the RAN in July 2017.

10. The Applicant says that he has not been treated for MDD since June 2019 and that he has not relied on his DVA White Card for MDD treatment since then. He has occasionally used his White Card for a lower back injury - Lumbar Spondylosis. His evidence is that it has been over three years since he has received any MDD treatment.

11. The Respondent is of the view that the Tribunal could not be satisfied that it is in the public interest for the Applicant to be granted a firearms licence. There are two grounds for that view:

1. The Applicant provided false and misleading information in the licence application; and

2. The Tribunal could not be satisfied that there is no risk to the public because of that Applicant’s mental health. Issues

12. The Tribunal is to determine whether the correct and preferable decision is to refuse to grant the Applicant’s application for a firearms licence.

13. This determination requires consideration of whether it would be contrary to the public interest for the Applicant to be granted a firearms licence.

Legislation

The role of the Tribunal

14. 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. This application is made under section 75 of the Firearms Act and the ADR Act. The Tribunal has jurisdiction in regard to a number of firearms licensing issues. The Tribunal’s jurisdiction includes review of a decision by the Respondent to refuse a firearms licence application.

15. Section 63 of the ADR Act provides that in determining and application, the Tribunal is to determine what is the "correct and preferable decision" having regard to the material before it. In reaching the correct and preferable decision, the Tribunal may:

1. exercise all of the functions that are conferred or imposed by the Firearms Act on the Respondent; and

2. affirm the Decision, vary the Decision, set aside the Decision, and make a decision in substitution of the Decision, or set aside the Decision and remit the matter for reconsideration by the Respondent.

16. There is no formal onus of proof. In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review. Its consideration is not limited to material that was before the Respondent at the time it made the decision which is under review.

17. The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. The Tribunal should consider all relevant materials and ignore all irrelevant materials.

18. 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].”

19. As Principal Member Britton observed in BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at paragraph [17]:

… a practical or "forensic" burden can arise from the material presented. A party who asserts a fact has a responsibility to prove that fact: Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303; Holbrook and Australian Postal Commission (1983) 5 ALN N46.

20. 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].

21. The underlying principles of the Firearms Act are, relevantly:

1. to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and

2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.

22. The underlying principles set out in section 3(1) of the Firearms 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: Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 at paragraph [44].

23. Section 11(7) of the Firearms Act provides:

11 General restrictions on issue of licences

…

1. 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.

...

24. Section 70 of the Firearms Act provides:

70 False or misleading applications

A person must not, in or in connection with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular.

...

The public interest

25. The term “the public interest” has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681:

The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.

26. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel said that:

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

27. In Cusumano v Commissioner of Police at paragraph [23] Deputy President Hennessy stated:

“There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.”

28. Section 3 of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community’s interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at paragraphs [27] – [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.”

29. Ward v Commissioner of Police dealt with the issue of whether the applicant was a “fit and proper person” to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at paragraphs [130] – [134].

30. The question of risk is not, however, to be approached in an absolute or mechanistic way, 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 paragraphs [64] – [66].

31. In determining this issue, 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 taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].

Material before the Tribunal.

32. The Respondent relies on bundles of documents (“the section 58 documents”) provided pursuant to section 58 of the ADR Act. The section 58 documents include various licence applications lodged by the Applicant as well as a number of medical records related to his treatment for mental health issues and reports provided in support of his applications for benefits. The Respondent’s legal advisors provided both oral and written submissions.

33. The Applicant relies on his own evidence and a number of character references. He also relies on the evidence of his GP, Dr Felix Choi and his psychologist, Mr Edmond Chiu. The Applicant attended the hearing, gave evidence, and was cross-examined. Mr Chiu provided a report in response to the Respondent’s Risk Assessment Questionnaire, attended the hearing and was cross-examined. The Applicant’s solicitor, Mr Michos, provided submissions.

The Medical Records

34. Both parties have referred to the Applicant’s medical records. These records include notes and correspondence from a number of medical professionals, including Dr Lee Hardwick, Dr Felix Choi and Clinical Psychologist Ms Antje Hofmann and registered Psychologist, Mr Edmond Chiu.

Ms Antje Hofmann

35. In a report dated 1 July 2016, addressed to the Senior Medical Officer, Fleet Base East Medical Centre HMAS Kuttabul, Ms Hofmann wrote:

I saw Brenton for his twelfth session on 29 June 2016.

As you know, in November 2016 Brenton presented with Adjustment Disorder with Mixed Anxiety and Depressed Mood in the context of work and private stressors and a passive communication style. Our recent treatment has focused on assertiveness training and cognitive challenging. Brenton is engaged in treatment and attempts to therapeutic concepts bet\ween sessions.

He reported that his mood has gradually improved over the past two months. He attributes this change to his decision to request discharge from the Navy, his ongoing engagement in his studies, and a decrease in conflict in his private interactions.

Brenton is more aware of avoidant coping and passive communication strategies, and has practiced asserting his needs and preferences in both private and study-related interactions.

Brenton continues to find it difficult to challenge unhelpful automatic thoughts in the context of ongoing private stressors He continues to display unhelpful thinking habits including catastrophizing, personalising and black-and-white thinking. He continues to feel vulnerable and report low self-efficacy with regard to recurrent marital arguments, which contributes to his ongoing reliance on avoidant coping strategies.

Brenton would benefit from continuing cognitive behavioural treatment at this time to consolidate his mood, and to further improve his anxiety management and assertive communication skills. I also have suggested couples counselling …

Dr Lee Hardwick

36. The records show that the Applicant was seeing Dr Hardwick following his discharge from the navy. In a report dated 8 November 2016, addressed to Dr Adrian Wu, Health Centre HMAS Kuttabul, Dr Hardwick noted that she had seen the Applicant on 19 October 2016 and 8 November 2016. She wrote:

Brenton tells me his anxiety and depressive symptoms began whilst he was deployed on HMAS Success in 2014. Being deployed to sea was extremely busy, with long hours and a little sleep, He felt he had little support from his superiors, and was overcommitted in his work duties, and consequently could not do his work to the standard to which he was familiar and aspired. Brenton felt there was little support on the ship, and there was poor morale, and the relationship with his superiors became increasingly bitter and fractured. At times he felt bullied and harassed, and verbally complained at times. However he now regrets that he did not put his complaints down in writing.

Brenton tried to continue on, although he was not coping with the busy pace and high tempo of his posting. In November 2014 the ship underwent workups for another deployment, but Brenton was removed from the ship at the end of 2014 and posted to HMAS Newcastle in January 2015. This ship was then deployed to The Gulf between April and September in 2015. Again this was a stressful time with long hours of work, and Brenton became extremely fatigued. On his return to Sydney towards the end of 2015 it became obvious that he was depressed and not coping and he was referred to the psychologist Antje Hofmann.

Subsequently he saw psychologist for approximately 20 sessions and underwent CBT for his anxiety and depressive symptoms, however he was referred to me in October 2016 due to his ongoing depressive symptoms.

According to Brenton, he suffers ongoing sleep disturbance, particularly initial insomnia, excessive fatigue, depressed mood; lack of motivation and energy. He denies suicidal thoughts or self harm, but despite many months of long service leave, his symptoms have not improved. He feels completely disillusioned with the Navy and is unable to foresee a return to seagoing duties at any time in the future. I understand he has put in for his discharge in April 2017.

Brenton has been physically healthy except for some intermittent low back pain, since 2002. On my initial assessment he was not taking any medication and denied excessive amounts of alcohol at any time. He is a non-smoker and non-gambler and does not use illegal drugs. There is no family history of mental disorder or drug and alcohol abuse.

Brenton appears to be a very obsessional and perfectionistic person.

My diagnosis is a Major Depressive Disorder, secondary to previous high work. tempo and alleged harassment in the workplace, over the last two years Probable onset of his disorder is approximately mid 2014. Cognitive behavioural therapy, with a psychologist, and time away from work (in the form of long service leave), has not brought about his remission.

I would recommend that Brenton commence a SNRL I have spent a considerable part of the second appointment explaining the benefits and side effects of the medication and Brenton will commence Desvenlafaxine/Pristiq 50 mg per day. Over time he may need to increase this dose to 100 or 200 mg per day to obtain a full remission.

37. It is not clear whether or not the Applicant received a copy of that report.

38. On 27 March 2017 Dr Hardwick again wrote to Dr Adrian Wu, noting that she had seen the Applicant on that day. She wrote:

I reviewed Brenton today. He thinks he is feeling improved in his mood — and mentioned' that his boss had noticed improvement also.

He is taking the desvenlafaxine 150 mg/day and will continue on this current dose. However he describes some ongoing marital disharmony over parenting styles …

39. On 16 May 2017, Dr Hardwick again wrote to Dr Adrian Wu, noting that she had seen the Applicant on 27 April 2017 and again on that day. She wrote:

Clearly there exists major marital difficulties, in part stemming from Brenton's Naval career, and time away on the ship, and the stressors placed on the family when Brenton became very depressed and anxious due to problems and changes in his work environment and the alleged bullying and harassment he felt by his work colleagues.

There are also conflicts with his wife over child-rearing strategies and setting boundaries and expectations ...

Brenton accepts the medical discharge from the RAN, which will be in about 7 weeks time ...

He will need to continue his SNRl medication for at least another twelve months ...

I have arranged to review him for ongoing supportive/insight- orientated therapy in about one month.

Current medication: Desvenlafaxine 150 mg/day.

40. On 21 December 2017 Dr Hardwick wrote to a Delegate of the M.R.C.C. D.V.A. in response to a request for a report on the Applicant. She wrote:

Current psychiatric status:

—   Last seen on 18/9/17

—   Depressive symptoms appeared stable. Had been discharged from the R.A.N. and looking for alternative employment.

—   Ongoing marital dysfunction caused depressed mood at times, but compliant with medication:

Desvenlafaxine 200 mg/day

…

Final diagnosis:

Final diagnosis is Major Depressive Disorder

Symptoms include

—    depressed mood

—   lack of focus, concentration

—    tiredness, fatigue

—    sleep disturbance

—    lack of motivation, energy

—    feelings of being overwhelmed

—    irritable

Onset whilst at sea June 2014, in the context of long work hours, difficulties with job change, problems with colleagues.

There is no evidence of drug or alcohol abuse.

I think the work conditions on board the ship, that Brenton was serving on, did cause his Major Depression.

Prognosis

The claimant is currently undergoing treatment (seen monthly with psychiatrist over 2017 until discharge from navy. Saw psychologist for CBT during 2016. He takes long term antidepressant medication).

He will need long term psychiatric support and medication. Hopefully with ongoing treatment he will be able to work, and to avoid a full relapse to Depression in the future.

41. In handwritten notes dated 17 June 2019, Dr Hardwick recorded that the Applicant had indicated that he had noticed an increase in road rage and that he was less patient at times. Further notes dated 6 December 2019 also refer to occasional road rage.

42. On 6 December 2019 Dr Hardwick wrote to Dr Felix Choi in relation to the Applicant. She wrote:

Brenton returned to see me, requesting another report, as he missed a deadline to appeal his ComSuper Military Pension for higher contribution rates and grading of his pension.

I had provided Brenton with a previous report, but he did not submit the documents he required, in the necessary time-frame.

Since I last saw him on 17/6/2019, he ceased the Desvenlafaxine completely. He says he notices decreased concentration and can be distracted at times — but feels he is fine off the medication.

...

I have not made any plans to review him at this stage.

Dr Felix Choi

43. On 29 August 2022, Dr Choi wrote to the Firearms Registry in relation to the Applicant. He wrote:

Mr Friend has a DVA white card.

His accepted conditions are Mental health (including treatment for Anxiety and Depression) and Low back contusion/lumbar spondylosis.

In regards to his mental health is currently stable and now off medications. He was last on medications in 2019.

He (sic) mental health occurred in relation to high stress while on deployment which has now ceased. There is little risk or relapse.

I do not feel he is a risk to the public for the use of firearms.

Mr Edmond Chiu.

44. As noted, Mr Chiu is a registered Psychologist. The Applicant consulted Mr Chiu for the purposes of responding to the Respondent’s request for information regarding the Applicant’s mental health. In a report dated 10 December 2022, Mr Chiu wrote:

I was in contact with Mr. Friend for two hours in total. Mr. Freind was mostly cooperative and forthcoming throughout the interviews, providing eloquent and detailed responses to interview questions.

The materials used to assess Mr. Friend's mental health and determine his suitability to own and use firearms include:

• Two one-hour long clinical interviews on Saturdays, November 19th & 26th 2022

• The Personality Assessment Inventory (henceforth, "PAl").

• GP Letter from Dr. Felix Choi

• Clinical notes from Mr. Friend's previous Psychiatrist, Dr. Lee Hardwick

…

Mr. Freind's results suggested little concern or elevation regarding his mental health, although moderate concerns were raised regarding his patterns of responding to questions, and motivations for further psychological treatment. Satisfactory explanations were given by Mr. Friend.

Mr. Freind's scores also suggested he moderately presented himself in a favourable light for the test. Although this means Mr. Friend's responses should be interpreted with some caution, no scores or interview responses suggested he was deliberately concealing any significant attitudes or behaviours that would endanger Public Safety. In fact, Mr. Freind's PAI scores suggest he is unlikely to be 'poorly suited' to a public safety role.

Mental Health Concerns

Mr. Freind was diagnosed with Major Depressive Disorder by Dr. Hardwick following a posting with the Navy in 2016, where Brenton felt unsupported by his Commanding Officers, whilst balancing a high workload. After his posting, at the recommendation of the Navy, he saw Clinical Psychologist, Antje Hofmann, and Psychiatrist, Dr. Lee Hardwick, to treat his depression.

Mr. Friend denied any effects of his depressive episodes on his ability to possess or use firearms. He reported moderate levels of low mood for short periods, but denied suicidal and homicidal ideation, both currently and in the past. He denied depressive symptoms impacted his memory, attention, or decision-making ability in the past. He reported still being able to perform his duties with the Navy as a Photographer while feeling depressed.

Mr. Freind reported that he does not experience any depressive symptoms, although he may feel down for approx. 30 minutes when seeing Navy-related content on the news or social media. He stopped taking anti-depressant medications since 2019, per Dr. Felix Choi's GP letter and Dr. Hardwick's clinical note.

Deviation from any Prescribed Course of Action or Medication

Mr. Freind reported being compliant with his prescribed course of treatment in the past. Dr. Hardwick's notes did not indicate any deviations by Mr. Freind from the recommended course of antidepressant medications until his medications were ceased in June 2019. There is also no evidence to suggest any further relapses or causes for concern after medications were ceased.

Mr Freind's PAI scores indicate he is unlikely to want to receive further treatment for his mental health. He reported this was because of the adverse side-effects of his antidepressant medication and that his mental health had been stable for years.

The Ability to Exercise Continuous or Responsible Control Over Firearms

Overall, the risks to Mr Freind's ability to exercise control over firearms is low. Mr. Friend denied his mental health has ever impacted his ability to exercise control over his firearms, either when he is feeling well or when he was depressed. He also reported having the knowledge and storage equipment to prevent others from obtaining control of his firearms.

Mr Friend's mental health has been relatively stable for more than 2 years without medication and does not impact his ability to exercise control over firearms. His responses suggest he is not depressed, aggressive, impulsive, or using substance or alcohol in an unacceptable or concerning manner.

Mr. Friend denied mental health issues have ever impacted his ability to control or use firearms historically, whether in terms of risky thoughts, impaired mental state, or impulsivity. He also reported that he has not used firearms without authorisation in either the Army, Navy, or civilian life. This information should be corroborated with Mr Freind's Naval and Forensic/Legal records.

The risk of his mental health relapsing appears low. Mr. Friend is currently not in the Navy, where his depressive symptoms were triggered, reported examples of adequate coping skills and conflict resolution style, and currently reports a stable lifestyle between home and work, with no foreseeable stressful life events.

To add to his ability to be responsible and control firearms, Mr Friend has reported having safe storage spaces for his firearms at home and in his car, to prevent others from accessing or controlling his firearms in the event of an

accident.

The Ability to Form Rational Judgement and Exercise Will Power to Control Physical Acts in Accordance with Rational Judgement

Mr. Freind demonstrated good capacity and rational judgement regarding the safe use of firearms possession and use, and the ability to control physical acts. Furthermore, there are no behavioural or mental health indicators that suggest these functions of rational judgement or willpower would be significantly impaired.

Mr Freind demonstrated a sound understanding of the responsibility of owning and using firearms. He reported an understanding of the safety regulations for gun owners; safekeeping and safety procedures for firearms kept at home, in public, and at the shooting range; and was aware of the consequences of the misuse of firearms.

Although Mr. Freind reported he could be verbally disagreeable to attempts by others to undermine processes and authority or to potentially break rules that kept others safe, he reported good conflict resolution and coping strategies. His answers were not impaired by depression, anger, nor alcohol or substance use, as supported by his PAI results.

In terms of willpower and control of physical acts reported he would persist in explanations, or eventually walk away or exit situations where he was stressed or felt others had partaken in wrongdoing. Historically, Mr. Freind denied any acts of impulsivity or inability to control his actions. This should be corroborated with any significant acts of physical aggression or unauthorised weapons use in both Navy and Forensic/Legal records.

The chances of mental health relapse impacting rational judgement and self-control appear low. Mr. Friend denied any history of formal thought disorder, psychosis, impulsivity, or reckless behaviours as a result of his mental health conditions.

The Potential to Place the Public Safety at Risk if Possession and Use of Firearms were granted.

Given Mr Freind's current and foreseeable stability of his mental health, ability to exercise responsibility and control of firearms, and capacity for rational judgement and behavioural follow-through, there seems to be low risk for the potential to place the safety of the public and/or himself at risk if he were to own and use firearms.

This is supported by Mr Freind's PAI result indicating low risk of being 'poorly suited' to a public safety role, where use of force or firearms was required.

Mentally, Mr. Friend denied any thoughts, intent, plans, or actions to endanger his own or the public's safety when he is depressed, stressed, or angry. Also, he reported positive attitudes towards authority and safe law enforcement procedures, which support his interest in public safety.

Behaviourally, Dr. Hardwick's notes did not indicate any previous incidents of risk to self or others. Further incidents significant acts of physical aggression or unauthorised weapons use should be corroborated with Mr. Freind's Navy and Forensic/Legal records.

Mr Friend reported no history of conduct disorder or antisocial personality traits throughout his life. This is supported by his PAI scores for Anti-Social Personality Disorder, which indicated a lack of concern. The absence of consistent unlawful or harmful behaviours towards animals, people, and/or property should be corroborated with his forensic/legal records since childhood.

Conclusion/Recommendation

Based on the information obtained, I believe Mr. Freind is suitable to be approved for a Firearms License that will allow him to own and use firearms. Mr. Freind's current mental health is stable, he demonstrates good ability to exercise responsibility and control over firearms, displays good capacity and rational judgement to control physical acts, and is unlikely to possess any serious psychological or mental health factors that suggest he is a risk to the safety of himself and the public.

My recommendation is made on the condition that Mr. Freind's Naval and Forensic/Legal records should be checked for events of risk that include, but are not limited to, serious aggression, harmful acts, unauthorised weapons use, or impulsiveness.

If Mr. Friend's records do display such events of risk, approval of his Firearms licence should be re-considered based on the intent, severity, and consequences of the aggressive or harmful acts and the likelihood they will re-occur. Re-assessment should be conducted by a psychologist or psychiatrist more experienced in military, public safety, or law enforcement, or an AHPRA-endorsed Forensic Psychologist.

45. In his evidence before the Tribunal, Mr Chiu was satisfied that the possible concerns he had expressed in regard to the need for corroboration with other forensic/legal records in relation to the Applicant were unfounded. He also indicated that he was not aware of Dr Hardwick’s notations regarding the Applicant’s increased road rage, but this did not cause him to alter his opinions.

The Respondent’s case.

46. The Respondent's position is that the Tribunal could not be satisfied that it is in the public interest for the Applicant to be granted a firearms licence because:

1. concerns remain in relation to the Applicant's mental health and suitability to possess firearms; and

2. the Applicant made false and misleading responses in his licence application relating to his mental health concerns.

The Applicant's mental health

47. The Respondent raised a number of issues in regard to the Applicant’s mental health. There are a number of records dating from at least 2016 which indicate that the Applicant has suffered from mental health issues since about 2014.

48. The Respondent submits that the Tribunal would be cautious in regard to the report provided by Mr Chiu because his opinions are largely based on information that was provided by the Applicant and there are gaps in what the Applicant disclosed.

49. The Respondent notes that Mr Chiu does not address a number of the issues raised by Dr Hardwick including her view that the Applicant will need long term treatment for his mental health condition. Further, there was no attempt to explain why the Applicant’s receipt of benefits based on his mental health condition is not an issue of concern.

50. The Respondent submits that the Tribunal could not be satisfied that the Applicant’s mental health does not pose a risk to public safety.

Misleading the Commissioner with false and incorrect Information

51. It is not in dispute that in his application of 14 July 2017 (“the July 2017 application”), the Applicant answered 'no' to the following question:

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

52. The Respondent submits that the declaration was false, as at the time of making his application, he had been receiving ongoing and regular treatment for MDD sustained during his deployment in 2014. He had been receiving treatment and was prescribed medication since 2016 and was continuing to receive treatment at the time of making the July 2017 application.

53. Following his discharge from the RAN in 2017, the Applicant held a DVA White Card which covered treatment for injuries, including his MDD which was sustained during his deployment. The Applicant relied on his DVA White Card to seek a fee exemption for his July 2017 application.

52. It is not in dispute that the Applicant consulted Dr Hardwick, a psychiatrist, in both April and May 2017. The Respondent relies on Dr Hardwick's report of 16 May 2017, which states that the Applicant will need to continue SNRI medication for treating depression for at least a further 12 months. The Respondent submits that this confirms that the Applicant's condition was quite severe, and he would have been aware of the condition at the time that he to answered 'no' to the treatment question in his July 2017 application.

53. Subsequently, on 21 December 2017 Dr Hardwick provided a report to the Navy regarding the Applicant's diagnosis, ongoing treatment, and prognosis. She confirmed that her final diagnosis was Major Depressive Disorder and reported the symptoms set out above.

54. The Applicant was taking 200mg of desvenlafaxine per day and Dr Hardwick opined that he would need long term psychiatric support and medication. Furthermore, the Applicant required ongoing treatment to allow him to work and avoid full relapse into depression in the future.

55. The Respondent submits that despite the three reports provided by Dr Hardwick in 2017, the Applicant still chose to answer 'no' to the question asking him if he had received treatment for a mental illness. In fact, the Applicant applied for his licence only a month after Dr Hardwick provided her report of 16 May 2017 indicating the Applicant's condition was severe and he needed at least 12 months further medication.

56. Accordingly, the Respondent submits that the Applicant most certainly was aware of his diagnosis and ongoing condition when he made his application and therefore chose to lie or omit the provision of the information, with the intent to ensure he would retain his firearms licence.

57. The Respondent also points to the Applicant’s explanations for the answer that he gave in his July 2017 application. Ms Curtin noted that in his evidence before the Tribunal the Applicant had provided a number of different explanations.

58. She submitted that he has provided different answers to different government departments. In the circumstances, she submits that the Applicant can not be regarded as a reliable witness.

59. As a consequence, the Tribunal could not be satisfied that there is virtually no risk to public safety if the Applicant were granted a firearms licence. Further, the Tribunal could be satisfied that it would be contrary to the public interest to grant the licence application. The decision under review should therefore be affirmed.

The Applicant’s case.

62. The Applicant’s position is that his mental health does not present any risk to public safety. He relies on the evidence of his psychologist, Mr Chiu, in support of that contention.

63. His evidence is that his MDD was sustained during his deployment and that the circumstances which gave rise to the condition have changed so that it is no longer an issue. While he remains incapacitated for defence service, he is not incapacitated for civilian work. He explained that he is in receipt of a pension as he is no longer able to work in the military service. While he is in receipt of a pension, he is not regarded as a pensioner in a broader, civilian sense.

64. With respect to public safety, he submitted:

The takeaway keynote by the Respondent, having brought up their concerns of public safety many times, is whether or not the Applicant (myself) is able to guarantee public safety; in saying that, out of all the written reports by Dr Choi, Dr Hofmann, Dr Hardwick, Dr Chiu, and my referees, they have not mentioned any concerns of public safety or of causing harm to self.

Family GP, Dr Choi, states in the letter to the NSWFR dated 29 August 2022 "He (sic) mental health occurred in relation to high stress while on deployment which has now ceased. There is little risk or relapse". Since leaving the Navy, I am no longer exposed to those stressors when deployed at sea at the time and am leading a more happier and balanced work/life relationship.

65. With respect to the answer provided in the July 2017 application, the Applicant has provided a number of explanations.

66. In his evidence before the Tribunal, the Applicant stated that he had never been told that he had a mental health disorder and that he didn’t believe that he had a mental health disorder.

67. However, he subsequently accepted that he provided incorrect information in his July 2017 application. He stated that he misconstrued the question.

68. In his application to the Tribunal, the Applicant stated in regard to the incorrect response that he provided in the July 2017 application:

Selecting "No" to the question was an honest mistake ...

In my defence, I interpreted the question solely relating to suicide or self-harm, alcoholism and drug dependence, which none of this is or was true to my circumstance. When one goes to a specialist for a medical procedure, patients are asked to complete a form which asks about their current medical history. The listed medical conditions on the form goes through each individual condition that you are currently experiencing (this can be quite lengthy), this is done to eliminate any ambiguity or interpretation of what is asked of the patient. By filling out the form to reregister for a firearms license, I don't feel that this has the same process in mind.

I do believe however, that I should have taken the time to digest the question placed before me when submitting my license renewal in 2017 and is not a reflection of my attempt to deceive the NSW Firearms registry.

69. In his statement of evidence he wrote:

As the relevant power to revoke a firearms license is contained in section 24(2)(b) of the Firearms Act 1996 (the Act) which relevantly states:

"A license may be revoked:

(b)   if the licensee:

(i)   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 license, or..."

I would like to state that there are two relevant points that needs to be addressed regarding the section and its meaning.

Firstly, the words "to the licensee's knowledge" are important, because the legislation requires a state of mind of the licensee to be considered. In the current situation, the Registry says that I have supplied false or misleading information, presumably within the meaning of this legislative provision. They say that the answer of "No" to the relevant question on the form was:

"Have you in NSW or elsewhere, ever attempted suicide or self-harm, or in the past 12 months, been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?"

amounted to the supply of false or misleading information.

If the licensee has formed a different view to the Registry about what the question means and what it's really asking, and then based on the licensee's interpretation then they answer it truthfully, that is not the same as knowingly providing false and misleading information. In fact, the licensee has answered truthfully to the licensee's knowledge.

Further, the use of forms and questionnaires are in themselves problematic when they require a simple "yes" or "no" answer. This is particularly exacerbated when the question is formed in a way that seeks to be answered by a "yes or no" but is not clear or subject to interpretation or has multiple or compound questions within it. There isn't any opportunity for the person answering the question to be able to seek clarification or rephrase so that they can better understand what information is actually being sought by the Firearms Registry. When searching the Internet "what is a compound question"; it provided the answer and finished with "... Compound questions can sometimes be complex and might require more thought to answer accurately". So in effect, I would argue that the posed question in the firearms renewal application is setting the licensee up to fail, along with their license application, if not paying precise attention or is open to interpretation, as in my case.

Secondly, the use of the word "material" in the legislative provision is important and relevant to this matter. The fact that all the evidence including the subsequent reports and information provided to the Registry by the relevant stakeholders, including the relevant medical assessments, clearly show that there is no issue with mental disorder or illness or suicide or self-harm, or alcoholism, or drug dependence regarding myself which in any way could have a negative bearing on whether I am a fit and proper person to be granted the privilege of holding a firearms license.

The point is, that incorrectly answering the question on the form in this case did not amount to a material particular. The result would have been the same whether the question was answered yes or no. If the question was answered "yes" then further particulars and information would have to be forwarded including the material that was before this tribunal, and that material (medical in nature) clearly shows that there is nothing in it that would or should disqualify me from holding a firearms license.

…

Although I did select 'No" to having not been "referred or treated for … a mental or nervous disorder' as stated in the Administrative Review Application Form, I would like to emphasise that this was an honest mistake and the question was misinterpreted by myself (for reasons above) to be referring only to suicide or self-harm, alcoholism, and drug dependence.

70. In his written response to the Respondent’s submissions the Applicant wrote:

During my time being treated for CBT with MDD, I believe it did affect my judgment (displaying symptoms of, "lack of focus, concentration") when submitting my 2017 firearms application, causing a degree of confusion when answering the compound question that was before me, "Have you ever attempted suicide or self-harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?", which would explain my interpretation of the question as I understood it to be.

71. In conclusion, the Applicant submitted:

In closing, recognising the complexities surrounding mental health and firearm ownership, it is important to approach the matter with empathy and understanding. It would be a tragedy to define someone solely based on a low point in their life and to potentially deprive them of the means to overcome and rebuild their future. I acknowledge responsible firearm ownership requires careful and serious consideration, it is equally important to acknowledge the potential for growth, recovery and resilience. Striking a balance between ensuring public safety and preserving the rights of individuals undergoing difficult times is essential.

Consideration

72. This is a matter in which the medical evidence demonstrates that the Applicant has suffered from a number of health related issues. For the purposes of these proceedings, his anxiety and Major Depressive Disorder are of relevance. The Applicant says that he was diagnosed with MDD in November 2016. He received treatment for the condition up until 2019.

73. It appears that his medication was Desvenlafaxine which was increased from an initial 50 mg per day in 2016 to a dosage of 150 mg/day in April 2017 to a dosage of 200 mg per day in December 2017.

74. This increase in the medication dosage suggests that the condition was not improving during that period.

75. However, the evidence suggests that the Applicant ceased medication for MDD some time in 2019 and that he has not received treatment for the condition since that time. Dr Choi has indicated that the Applicant’s mental health is stable and that his is no longer prescribed medication for his conditions.

76. I have considered the report from Mr Chiu and the evidence that he has given before the Tribunal. On the basis of that evidence and the totality of the medical records before me, I am satisfied that there is virtually no risk to public safety as a result of the Applicant’s mental health.

77. The character references speak highly of the Applicant, and I have taken them into account.

78. However, I agree with the Respondent with respect to the answer that the Applicant provided in his July 2017 application. I am satisfied that it is probable that the Applicant would have been aware that he was suffering from depression in 2016 and 2017. He would have been aware that he was prescribed medication for his condition in 2016.He would also have been aware that the dosage of his medication was increased over time.

79. Given the evidence showing that the Applicant had consulted Dr Hardwick from at least October 2016 and had continued seeing her throughout 2017, including April and May 2017, it is implausible that the Applicant would not have been aware that he was consulting Dr Hardwick in relation to his MDD condition when he completed his July 2017 application.

80. I agree with the Respondent that the Applicant has provided a number of explanations in regard to the issue. It is possible that the Applicant did not understand that his MDD condition could be regarded as a “mental or nervous disorder or illness” but this seems to me to be unlikely.

81. In my view, there are two more likely explanations for the incorrect answer. The most likely explanation is that the Applicant simply did not give careful and serious consideration to the answers that he provided in the application. The Applicant has suggested that this may be a result of the effect of being “treated for CBT with MDD” i.e. “lack of focus, concentration”.

82. The second explanation, as the Respondent has suggested, is that the Applicant may have tailored the information that he was giving to DVA and the information that he was giving to the Respondent to achieve the outcome that he was seeking. If that were the case, he may have deliberately provided the answer that he considered would allow him to retain his firearms licence. In fact, it is possible that if he had not used his DVA white card to seek a fee exemption for his licence application, the Respondent may not have become concerned about the Applicant’s mental health.

83. I note that the form that the Applicant completed for his July 2017 application also asked other questions which would have given him the opportunity to raise the fact that he had been consulting Dr Hardwick for his MDD. These included the following questions:

• Do you have any health conditions which may prevent you from exercising continuous and responsible control over firearms?

• Is there anything else you wish to disclose which might affect the Firearm Registry's assessment of whether you are a fit and proper person and whether you can be trusted to have possession of firearms without danger to public safety or to the peace?

• Is there any other reason why it would be contrary to the public interest for you to be issued with a firearms licence?

84. The Applicant answered “No” to each of those questions. Any one of those questions would have given the Applicant the opportunity to bring the issue of his mental health to the Respondent’s attention but he did not take that opportunity. If he had doe so, it might have been a simple process to obtain a report from Dr Hardwick to remove any concerns that the Respondent might have had in regard to public safety. By failing to provide the information, the Respondent was deprived of that opportunity. In my view, this raises the issue of whether it is in the public interest to grant the licence.

85. There have been numerous decisions of this Tribunal and the former Administrative Decisions Tribunal which have emphasised the importance of prospective licensees providing accurate information to the Respondent in licence applications. It is an important part of the licensing regime that the Respondent is able to undertake an assessment of prospective licensees and in order to allow that process to take place, it is incumbent on applicants to provide full and frank information about issues relevant to the application. An applicant’s mental health is clearly one such issue.

86. 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.

87. In considering the question of public interest, the Tribunal takes into account the interests of public protection, public safety and the proper functioning of the legislative requirements of the firearm scheme.

88. The power to grant an application for a firearms licence under section 11 of the Firearms Act is “tightly constrained” and in particular, significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant: Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159 per Basten JA at paragraph [1]. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 at paragraph [117].

89. If I am correct in considering that the Applicant’s treatment for his mental health issues resulted in a lack of focus and concentration in completing his July 2017 application, it is necessary that the Applicant address the issue before he could be granted a firearms licence. If there is some other explanation e.g. that the Applicant simply did not give careful and serious consideration to the answers that he provided, it would be necessary for him to undertake training in relation to his obligations as a licensee.

90. For this reason, on the evidence before me, I am satisfied that it would be contrary to the public interest for the licence to be granted at this time. It follows that the correct and preferable decision is to affirm the Respondent’s decision to refuse the licence application.

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: 17 June 2024