GWJ v Commissioner of Police, NSW Police Force - [2025] NSWCATAD 41

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GWJ v Commissioner of Police, NSW Police Force [2025] NSWCATAD 41
Hearing dates: 11 April 2024
Date of orders: 13 February 2025
Decision date: 13 February 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: K Mobbs, Senior Member
Decision:
The decision under review is affirmed

Catchwords:
LICENSING – firearms – licence revocation – denial of attempt to commit suicide or self-harm – public interest – fitness and propriety- risk

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Firearms Act 1996 (NSW)
Firearms Regulation 2017 (NSW)
Mental Health Act 2007 (NSW)
Mental Health Regulation 2019 (NSW)

Cases Cited:
AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254
Comalco Aluminium (Bell Bay) Ltd v O’Connor (No 2) (1995) 131 ALR 657
Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50
Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63
Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]
DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219
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
Keys v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 91
Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315
Leatham v Commissioner of Police [2021] NSWCATAD 121
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206
McDonald v Director-General of Social Security (1984) 1 FCR 354
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210
Ravenscroft v Commissioner of Police, NSW Police Force [2024] NSWCATAD 181
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31
Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184
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
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
Weckert v Commissioner of Police, NSW Police Force [2011] NSWADT 197

Texts Cited:
Extract from Manual of Use and Interpretation of Pathology Tests published by the Royal College of Pathologists of Australia.

Category: Principal judgment
Parties:
GWJ (Applicant)
Commissioner of Police, NSW Police Force (Respondent)
Representation:
Counsel:
T Lowe (Applicant)
C Langford (Respondent)
Solicitors:
Anderson Boemi Lawyers (Applicant)
Norton Rose Fulbright

File Number(s): 2023/00261802
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the Applicant, his wife and children are prohibited.

REASONS FOR DECISION

Background

GWJ (the Applicant), was the holder of a category AB firearms licence (licence) under the Firearms Act 1996 (NSW) (the Act) from 8 August 2005.
The Applicant’s licence was suspended by the Commissioner of Police, NSW Police Force (the Respondent) on 1 May 2022 and was subsequently revoked on 18 April 2023.
An internal review of the decision to revoke the licence was conducted by a delegate of the Respondent and on 17 July 2023, this decision was upheld (the Decision).
The Applicant applied to this Tribunal on 16 August 2023 for review of the Decision (application for review).
The matter was heard by the Tribunal on 1 April 2024 and no issue was raised by the parties in respect of the Tribunal’s jurisdiction in this matter.

Confidentiality order

At the conclusion of the hearing, counsel for the Applicant sought a suppression order in relation to the names of the Applicant, the Applicant’s wife, and his children. The Respondent indicated that there was no objection to this request. I have had regard to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and to the relevant principles that apply to the making of such orders. Having regard to the circumstances of this matter which involves allegations of attempted suicide by the Applicant, and taking into account that he has young children, I am satisfied that it is desirable to make an order pursuant to s 64(1)(a) of the NCAT Act in order to preserve the privacy of the Applicant’s affairs to prohibit the disclosure of the name of the Applicant, the Applicant’s wife and his children.
Accordingly, in these Reasons, the name of the Applicant has been anonymised and his wife and children are each referred to in terms of their relationship with the Applicant. Similarly, the names of the Applicant’s referees, and other associated persons have been referred to in terms of their relationship with the Applicant.

Applicable legislation

The general principles and objects of the Act are set out in s 3 as follows:

(1) The underlying principles of this Act are—
(a)  to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b)  to improve public safety—
(i)  by imposing strict controls on the possession and use of firearms, and
(ii)  by promoting the safe and responsible storage and use of firearms, and

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

(2) The objects of this Act are as follows—
(a)  to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,
(b)  to establish an integrated licensing and registration scheme for all firearms,
(c)  to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,
(d)  to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,
(e)  to ensure that firearms are stored and conveyed in a safe and secure manner,
(f)  …

Section 11 of the Act relevantly provides:

11 General restrictions on issue of licences
…
(3) A licence must not be issued unless—
(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

…
(4) Without limiting the generality of subsection (3)(a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of—
(a)  the applicant’s way of living or domestic circumstances, or
(b)  any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or
(c)  the applicant’s intemperate habits or being of unsound mind.

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

Section 24 of the Act sets out the various grounds on which a licence may be revoked and s 24(2) relevantly provides as follows:

(2) A licence may be revoked—
(a)  for any reason for which the licensee would be required to be refused a licence of the same kind, or
…
(c)  if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
…
(d)  for any other reason prescribed by the regulations.

Clause 20 of the Firearms Regulation 2017 (NSW) (the Regulation) provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

The evidence

A folder titled “NCAT Court Documents” was helpfully provided to the Tribunal by the parties at the hearing and contained the documentary evidence and submissions that had previously filed and served by the parties. With the consent of both parties, the evidence within that folder was admitted into evidence in the proceedings (exhibit 1), with the Tribunal noting the written submissions contained therein.

Evidence for the Applicant

The following documentary material on behalf of the Applicant was contained in the folder:

Review application form and attachments.

Applicant’s statement dated 23 October 2023 attaching: two references dated 28 June 1995 and 18 January 2002; a series of photographs; and a number of reports from the Applicant’s consultant rheumatologist (Rheumatologist) dated from 24 May 2022 to 30 May 2023.

Results of the Applicant’s Drug Screen (Urine) performed on 7 February 2024.

Letter of instruction and report from the Rheumatologist dated 23 November 2023.

The Applicant gave oral evidence at the hearing and was cross-examined by counsel for the Respondent.

Evidence for the Respondent

The following documentary material on behalf of the Respondent was contained in the folder:

Section 58 Documents.

Statement of Leading Senior Constable Ackling (Officer Ackling) dated 13 November 2023 (Ackling statement) that annexed a request for a mental health assessment of the Applicant pursuant to s 22 of the Mental Health Act 2007 (NSW).

Summonses issued by the Respondent to the following organisations, together with the produced records:

Blacktown Hospital (the Hospital).

NSW Ambulance.

Medical Centre attended by the Applicant.

Statement of Constable Amani Nshangalume (Officer Nshangalume) dated 20 March 2024 (Nshangalume statement) that attached a notebook entry.

Summons issued by the Respondent to the Rheumatologist together with the produced records.

Summons issued by the Respondent to Services Australia together with the produced records.

Additional evidence for the Respondent

The Respondent also relied on a USB containing two video recordings of the footage from the body worn video camera (BWV) of Officer Ackling (BWV footage) (exhibit 2) who attended the Applicant’s residence on 1 May 2022; a still photograph taken from the BVW footage (exhibit 3); and an incident call record (Call Record) relating to a reported incident at the Applicant’s residence on 1 May 2022 (exhibit 4).
Officer Ackling and Officer Nshangalume gave oral evidence by way of audio visual link and both were cross-examined by counsel for the Applicant.
The Applicant’s wife did not give a statement in the proceedings but gave oral evidence and was cross-examined at the hearing in response to a summons issued by the Respondent for her to attend and give evidence.

Submissions

The Applicant relied on written submissions dated 18 October 2023 and submissions in reply dated 12 February 2023 and the Respondent relied on written submissions dated 28 November 2023. Both parties made oral submissions at the hearing.

Role of the Tribunal

Section 75(1)(c) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent’s decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). Section 63 of the ADR Act provides that in determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34].
In an application for review, the Tribunal is not restricted to a consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31.
The Tribunal must exercise its discretion in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23]. The Respondent’s revocation power, and by derivation that of this Tribunal, is a discretionary one and accordingly, the objects and purposes of the Act are relevant.

Issues for determination

It was not in dispute that the Applicant held a licence between 2005 and 2022 and that following two safe storage inspections in 2009 and 2011, was found to be compliant with legislative requirements in relation to the safe keeping of firearms. In the Decision it was acknowledged that the Applicant had an unblemished history of authorisation for firearms and that he had not been charged with, or convicted of, any contravention of the Act or associated regulations, not had he come to the attention of police due to any reported misuse of firearms, or violent, threatening or intimidatory behaviour.
No evidence to the contrary was adduced by the Respondent in these proceedings and I accept that this was still the case as of the date of the hearing. I am satisfied that the Respondent has no criminal history, and whilst he does have a traffic record which he acknowledged in his evidence, the last matter was in 2008. This matter was not relied upon by the Respondent, and I give it no further consideration.
It was not in dispute that: an incident occurred at the Applicant’s residence on 1 May 2022 (2022 Incident); that the police attended the Applicant’s residence on that day in response to an emergency telephone call from the Applicant’s wife; or that the Applicant was transported to Hospital by ambulance and remained at the Hospital between 1 May 2022 and 3 May 2022 as an involuntary patient.
The Respondent relies on the 2022 Incident as being an attempt by the Applicant to commit suicide by way of carbon monoxide poisoning. In contrast, the Applicant denies this and contends that he has never attempted to harm himself and that there is no evidence which could support such an assertion. In essence, the Applicant’s case is that at the time of the 2022 Incident he was working in his shed using machinery and did not self-harm in any way. The Applicant contends that police were called as the result of a misunderstanding by his wife. The Applicant submitted that the Respondent’s concerns about his mental health were not properly grounded by the evidence and that the correct and preferable decision would be for the Tribunal to re-instate his licence.
The Respondent submitted that the “threshold” task is for the Tribunal to determine whether:

There is “reasonable cause to believe” pursuant to s 11(4)(b) of the Act, that the 2022 Incident constituted an attempt at suicide via carbon monoxide poisoning; and

The Applicant’s subsequent communications with the Registry and the Tribunal, denying that attempt, demonstrate a lack of accuracy and candour on his part.

The Respondent contends that, in view of those matters:

It is not in the public interest for the Applicant to continue to hold his licence (see s 24(2)(d) of the Act and cl 20 of the Regulation);

Without limiting the generality of the above, there is reasonable cause to believe the Applicant may not personally exercise continuous and responsible control over firearms particularly because of his attempt at suicide or self-harm in the 2022 Incident (see s 11(4)(b) and s 24(2)(a) of the Act); and

The Applicant is no longer a fit and proper person to hold the licence (see s 24(2)(c) of the Act).

Having regard to the differing positions of both parties in this matter, the first issue to be determined by this Tribunal is whether or not the 2022 Incident constituted an attempt by the Applicant to commit suicide. Once this issue is determined, further consideration can then be given to what is the correct and preferable decision in this matter.

The 2022 Incident

It was submitted on behalf of the Applicant that the contention that the Applicant’s wife witnessed the Applicant’s actions in attempting to gas himself is weak and there is no evidence which could support the asserted fact that he had committed self-harm. I accept from the evidence before the Tribunal that the Applicant was alone in the shed during the 2022 Incident and has consistently denied that he attempted to commit suicide at that time. The Applicant denied having done so in the initial conversation that he had with Officer Ackling following the incident. However, I do not accept that there is no evidence at all to support the Respondent’s assertion that the Applicant was attempting to gas himself in the shed on 1 May 2022 and I give further consideration to this evidence below.

Note written by the Applicant

It was not disputed that the Applicant wrote some financial information on a piece of paper which he provided to his wife just before going into his shed on 1 May 2022 (the note). However, the exact wording of the note and the Applicant’s intention in writing the note were both in dispute.
In his written statement, the Applicant said that he had disagreements with his wife about their finances over a long period of time. He said that he then became frustrated with their constant disagreements and “put pen to paper” and wrote a list showing the financial position they were in. The Applicant said, that to the best of his knowledge, he recalled noting the following:

We have a net worth of about 4 million dollars, which includes our house worth about 3.5 million dollars fully paid for; we have no debt whatsoever everything we have we own including…we have approx.. $20K in shares, approx. 60k in savings along with superannuation and life insurance should something happen to me.

The Applicant specifically recalled writing “…If this isn’t enough then you will never be happy” but stated that he did not write anything about self-harm and nor did he think such thoughts.
The Applicant was asked about the note in cross-examination and said that he had “jotted” down some rough figures in relation to their finances and he confirmed that it included details in relation to superannuation and life insurance. When it was suggested to him by counsel for the Respondent that he had written the words “I hope this is enough,” the Applicant said that he could not recall that. He was then shown the still photograph taken from the BWV footage and said that he did not recognise the copy of the note that was shown to him. When it was suggested that the image quality was sufficient to indicate the words “hope this is enough” appeared on the note, the Applicant replied with words to the effect of “if that’s what you said”, and “if you can see that”, and that without the whole context, he could not say “yes or no".
Officer Ackling and Officer Nshangalume both make reference to the note in their statements. In the conversation with Officer Ackling that is captured on the BWV footage, the Applicant’s wife refers to having been upstairs when the Applicant came in and “chucked” a note at her. She said that she read it and went “whatever”, just before hearing the sound of a motor coming from outside. When asked by Officer Ackling about the content of the note, she produced the note from her pocket and can be seen handing it to Officer Ackling on the BWV footage.

Whilst the note itself was not before the Tribunal, it is visible in the BWV footage and is shown in the still photograph taken from the BWV footage. On the BWV footage, the note is briefly visible before parts of it, including the right-hand side, are obscured. It appears that the right-hand side of the note has a series of figures written on it. It is evident from the available images of the note that on the left-hand side of the note is a list of items, which includes the words: “MY PARENTS INSURANCE”; “SUPER”; “LIFE INS”; and “SHARES, SOLD”. This is followed by the words:

“I HOPE THIS IS ENOUGH
WILL STILL WANT M”.

The rest of these two lines is not visible from the images available to the Tribunal, namely the still photograph and the BWV footage.

Consideration of the note

Having regard to the Applicant’s evidence and the images of the note before the Tribunal, I am satisfied that the Applicant wrote a note which he gave to his wife prior to going into the shed on 1 May 2022. I am satisfied that the note contained a list of assets and insurances held by the Applicant and his wife, including those that I have set out above, and that underneath are written the words, “I hope this is enough” and “will still want m…”
In circumstances where the note itself was not in evidence and having regard to the available images, I am not able to be satisfied that the additional words “if this isn’t enough then you will never be happy” referred to in the Applicant’s statement do not appear elsewhere in the note. Whilst I accept Officer Nshangalume’s evidence that he could see the note whilst at the premises, he fairly conceded that he could not now recall the exact message in the note or the other contents. Accordingly, I am not able to be satisfied on the available evidence that the note contained a reference to the Applicant saying that he could not handle the pain. Whilst the officer may have had the belief that the Applicant was saying goodbye to his wife, I am not able to be satisfied that any such words were contained in the note.

Evidence relating to 1 May 2022

Evidence from the Applicant’s wife at the time of the 2022 Incident

There is no evidence to suggest that the Applicant’s wife provided a notebook statement to police and no written statement from her was before the Tribunal.
However, the Respondent relied on statements from Officer Ackling and Officer NShangalume who attended the incident and on the BWV footage taken by Officer Ackling on 1 May 2022 which includes conversations between the Applicant and his wife, and also between the Applicant’s wife and police. The Respondent also relied on the Call Record relating to the 2022 Incident, and to a record in the Respondent’s Computerised Operational Police System (COPS) database relating to the 2022 Incident (2022 COPS record), the NSW Ambulance records (Ambulance records), and various medical records, including those obtained from the Hospital and from the Applicant’s general practitioner (GP).
Under s 39 of the NCAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself of any matter in such matter as it thinks fit, subject to the rules of natural justice, and I have had regard to all of the evidence, including this material, in reaching my determination in this matter.
It was not in dispute that the Applicant’s wife called “triple 0” when she was unable to enter the shed, and the Applicant acknowledged that she was still on the phone when he came out of the shed. On the basis of the information contained in the Call Record, particularly the names of the Applicant as the “POI”, the Applicant’s wife as the “Informant” and the address of the Applicant and his wife, I am satisfied that the Call Record relates to the 2022 Incident and that a call was received by emergency services from the Applicant’s wife at 2.35 pm on 1 May 2022 in which it is recorded “Inft husband is trying to gas himself in the shed”.
At 2.36 pm, there is an entry from the telephonist “POI is now out of the shed – C&B – Nil bleeding”. At 2.37 pm, there is an entry “POI diagnosed with depression – Nil prev history – 2 children under 8 present”. At 2.37 pm there is an entry “POI is sitting os the garage with his head in his hands – POI was wobbling but is steady now” and at 2.38pm there is an entry “POI was using a generator – C&B – Nil bleeding”. At 2.39 pm, there is an entry “Inft said to head down the driveway” and at 2.42 pm, there is an entry “Status changed from P- Proceeding to O – On scene.”
In his statement, Officer Ackling says that at approximately 2.35 pm, an urgent job was broadcast via Police Radio regarding a possible suicide attempt and after accepting the job, he and Officer Nshangalume attended the Applicant’s residence, arriving at approximately 2.42 pm. Officer Ackling states that at approximately 2.43 pm, he approached a vehicle in which the Applicant was sitting in the driver’s seat with his wife standing next to him, and she appeared to be comforting the Applicant. The Applicant’s wife greeted the officers, and they approached the Applicant. This is reflected in the BWV footage indicating a commencement time of 14:43:31. I am satisfied that the times recorded in the Call Record are consistent with the evidence of Officer Ackling and the BWV footage and that police arrived at the Applicant’s residence within approximately eight minutes of the Applicant’s wife making the emergency call at 2.35 pm on 1 May 2022.
The first portion of the BWV footage recorded at the Applicant’s residence on 1 May 2022 commences at approximately 2.43 pm and finishes at 2.56 pm and runs for around 12 minutes and 34 seconds. The second portion of the BWV footage commences at 2.59 pm and finishes at 3.05 pm and runs for around 6 minutes and 19 seconds. I am satisfied that there is a gap between the two portions of the BWV footage and that there is no BWV footage from 3.05 pm until the Applicant was transported to the Hospital by ambulance at approximately 3.32 pm as recorded in the Ambulance records. I accept Officer Nshangalume’s evidence that whilst he had also been equipped with BWV, the footage from his BWV had not been tagged correctly by him and appeared to have been deleted. Accordingly, the only BWV footage before the Tribunal was that from Officer Ackling.
The BWV footage includes both images and sound and accords with the Ackling Statement. The first portion of the BWV shows the Applicant seated in his vehicle and his wife standing at the door to the vehicle. The Applicant did not dispute the contents of the Ackling Statement insofar as it set out the conversations recorded in the BWV footage. Accordingly, I am satisfied that around 2.43 pm, Officer Ackling asked the Applicant what had been happening that day and the Applicant responded “Nothing, just a domestic.” I am satisfied that the Applicant’s wife then said to the Applicant, ”Oh no, it’s not a domestic…you just tried to kill yourself” to which the Applicant replied “Bullshit” and “I just wanted to get the fuck outta here.”
Following further conversation with the Applicant, the BWV footage shows that Officer Ackling approached the Applicant’s wife at approximately 2.49 pm where she is seen in discussion with Officer Nshangalume and a female police office. As Officer Ackling gets closer to the Applicant’s wife, the conversation can be clearly heard on the BWV footage.
The BWV footage indicates that at approximately 2.53 pm, following discussion with the other officers, Officer Ackling asks the Applicant’s wife some specifics about the 2022 Incident. I accept that the summary of this conversation recorded in Officer Ackling’s statement is an accurate summary. I am satisfied that the Applicant’s wife told the officer that shortly after reading the note from the Applicant, she heard a motor running and exited the house to find the source of the sound. Once she realised that the sound was coming from a generator running in the shed, she described instinctively knowing that the Applicant was harming himself.
The Applicant’s wife said that she tried to enter the shed using the combination code. She said that she put the code into the shed door, and that the Applicant “obviously” changed it so that she could not get in. She referred to banging on the door, trying the code again and yelling at the Applicant. The Applicant’s wife said that the Applicant eventually opened the door “with this pipe in his mouth” and that he had “obviously been sucking the gas.” She referred to the Applicant setting up his generator with some “contraption to get gas to gas himself and then he came out [of the shed] and the door shut.”
Whilst recounting these events, the Applicant’s wife can be seen in the BWV footage, and I am satisfied from all of the available evidence that she is physically re-enacting what she said she saw the Applicant doing when he opened the shed door. The Applicant’s wife has her eyes closed and her right hand placed in front of her mouth with her thumb and pointer finger joined and her other fingers curled. The Applicant’s wife can be seen to be swaying and moving around whilst doing so.
The Ambulance record includes an entry that when the Applicant’s wife “made contact with the pt he had plastic tube in his mouth that was connected to the generator exhaust.” It also refers to “Pt has stopped medical THC use 3/7 ago”.
The Hospital’s Patient Health Record for the Applicant contain a reference in the clinical notes to “PC” to the Applicant’s wife, which I take to be a reference to a phone call to the Applicant’s wife. The notes include the following relevant entries:

“Thinks her husband is depressed and tried committing suicide yesterday.
Believes he is withdrawing from THC use and is emotionally unstable
…
States he went to the garage, turned the generator on and was trying to poison himself
…
When he opened the door, saw him inhaling the fumes from an exhaust pipe attached to the generator
…
Was not happy when told [the Applicant] denied suicidal ideation as she thinks it was not usual for him to react this way
Denied past suicidal ideation/suicidal attempts/psychiatric admissions
Has stated “it is better off being dead” but did not mention about any set plan.”

A further entry in the Applicant’s Patient Health Record dated 3 May 2022 from Medical Officer Prasad includes “Collateral from wife” that refers to “Had some pipe and was sucking gas” and “was wobbly and stumbling”.

Evidence from the Applicant at the time of the 2022 Incident

As referred to above, the BWV footage captures a conversation with Officer Ackling in which the Applicant refers to the incident as a “domestic.” I accept that Officer Nshangalume and the Applicant’s wife then moved away from the Applicant’s vehicle and that Officer Ackling remained with the Applicant and asked if he would mind “jumping” out of the car to talk to him. The Applicant remained in the car and Officer Ackling continued to speak with him, with the Applicant directing him to speak to his wife.
I am satisfied that Officer Ackling put to the Applicant that the Applicant’s wife “called us pretty distressed because you apparently tried to gas yourself in the garage with a generator” and the Applicant responded, “Oh well.” The Applicant then said, “I have my own physical problems that are never going to get better- I’ve had enough, so there you go.” The Applicant advised the officer that “there’s nothing to talk about” and that he had talked to doctors, psychiatrists and been on drugs and that he then said, “I’m in pain and I’m fucking sick of it.”
The Applicant denied the use of drugs, alcohol or prescription medication to Officer Ackling and stated that the incident had not been an attempt to kill himself and that he was working in the “garage”, which he later corrected to the “shed”. The Applicant said he wanted to leave the property due to being sick of arguing with his wife and he denied any prior attempt at suicide or self-harm. The Applicant then went to start his car and was told by Officer Ackling that “you’re not going.” He was then advised that he was being detained whilst police worked out what was going on and that if it was a suicide attempt, he would be detained under the Mental Health Act.
In the second portion of the BWV footage, commencing at 2.59 pm, the Applicant can be seen drinking from a tap at the rear of the property, prior to Officer Ackling advising him that he was being detained under s 22 of the Mental Health Act. I am satisfied that Officer Ackling then asked the Applicant to provide his licence to him and the Applicant replied with words to the effect of “more reason fucking to not be here isn’t it,” before handing his licence over. I am also satisfied that when Officer Ackling asked the Applicant if he had the keys to his safe, the Applicant said that it was a “combination” and that he could not remember it. When told that police would need to force entry if the Applicant could not remember the combination, and after further conversation including the Applicant’s wife saying to the Applicant, “they’re trying to help you,” the Applicant then input the code to open the safe and Officer Ackling seized his firearms.
I am satisfied that the Applicant’s wife can be heard on the BWV footage talking about the significance to the Applicant of one of the firearms, stating to police, “He’s going to kill me.”
The BWV footage concludes at 3.05 pm and according to the Ambulance records, the Applicant was transported to the Hospital at approximately 3.32 pm. The Ambulance records indicates that the Applicant stated that he “was just working in the shed, getting ready for the next week. Pt not willing to open up about MH. Pt expressed distress about spinal condition and unable to get any relief. Pt denies suicidal or homicidal ideation, denies visual or audible hallucinations. pt only allowed basic observations…”
The Ackling Statement annexes the request for the assessment of a detained person under s 22 of the Mental Health Act dated 1 May 2022.

Medical records from Hospital

The summonsed medical records indicate that the Applicant was originally treated in the Hospital Emergency Department as an involuntary patient before being transferred to a medical ward, where he remained overnight on 1 May 2022.
The summonsed medical records include a Form 1 under the Mental Health Regulation 2019 and Mental Health Act dated 2 May 2022 in which the Applicant was found to be a mentally disordered person by a medical practitioner and detained at the Hospital. It was not in dispute that he remained as an involuntary patient overnight in the mental health ward on 2 May 2022 and was discharged on 3 May 2022.

Evidence from Applicant following the 2022 Incident

Applicant’s internal review submission

The Applicant provided a letter dated 4 July 2023 (part of s 58 documents) in support of his internal review request. In this letter he requested that his firearms and licence be returned to him as they were taken “with no proof or evidence of the false accusation of self-harm.” The Applicant indicated that his wife had “overreacted” to the situation around cash flow and that she is “always thinking the wrong scenario.” The Applicant said that his wife had called the police as she was unable to unlock the combination door lock to the shed, noting that it required the correct code to be entered and the handle turned anti-clockwise for the door to open. The Applicant said that he sometimes hit the wrong buttons or turned the handle the wrong way if he was in a hurry.
The Applicant said that at the time of the 2022 Incident, they did not have mains power to the shed so, he was using a generator to grind a piece of steel and wearing earmuffs. He said that when he stopped the grinding, he heard his wife banging on the door and opened it, to find that she was on the phone to the police. The Applicant indicated that he was treated like a “guilty criminal” by the police and that there was “no proof, evidence or any witnesses, just my wife’s overreactions.”
The Applicant then described a conversation that he had with police in which he asked the police to take his wife to the shed to open it and was told that they did not have to do that. The Applicant then referred to being taken to the psychiatric Hospital, being locked in a ward, and treated “like a convicted insane patient.” He said that the next morning, he was interviewed by a panel of psychiatric doctors and was told that they could see no reason to keep the Applicant locked up and there was no need for further psychiatric treatment.

Applicant’s statement

In his statement, the Applicant referred to the 2022 Incident and outlined his family circumstances. He referred to caring for his mother when she was diagnosed with cancer in 2019, until she unfortunately passed away later that year. He said that this impacted on his income as he was self-employed and unable to work, and due to the need to attend to his duties as the executor and trustee of his parents’ estate, he had no work until late 2019. Due to the impacts of Covid and the weather, he had limited work between 2020 and 2022. The Applicant said that his business was going very slowly and had irregular cash flow which stressed and troubled his wife.
The Applicant said that at around 2.35 pm on 1 May 2022, his wife was “badgering” him about finances, so he decided to step outside and work in his shed. Before that, he decided to leave the above note relating to their financial position. The Applicant said that his wife “misunderstood” the note and took it as a suicide attempt. He said that “she came to the shed, initially keying in the wrong code at the door and then proceeded to knock on the door.”
The Applicant again said that he had been using a generator to grind pieces of steel whilst wearing earmuffs so that he did not hear the knocking due to the noise from the heavy machinery. He said that the grinding using the machinery took approximately two minutes and that once he had finished it, he turned the generator off and heard banging on the door. He then referred to his wife being on the phone with the police and saying something along the lines of “It’s Okay. He opened the door.” The Applicant said he then proceeded to walk to his car and had just gotten into it, ready to leave, when the police arrived.
The Applicant said at about 2.50 pm, five uniformed police officers attended his residence. He said that he asked police to go to the shed and have a look at the generator and the size of the shed and also to have a look at the lock on the shed. He said that he was accused of changing the lock combination and that he wanted the police to investigate the matter, but the police refused to go inside the shed to see what he had been doing.
The Applicant then described the shed as about “13 m x 9m x 5m high” and having six whirly birds on the roof for ventilation but no windows, with a lot of natural light coming through the gaps. He stated that the shed is not completely enclosed and there is a gap between the roller doors and the roof where natural light and air flows. The Applicant’s statement annexed copies of various coloured photographs of the shed, the generator and the whirly birds in the shed.
The Applicant then referred to the ambulance arriving at the scene and confirmed that he was not trying to self-harm, “nor did [the Applicant’s wife] see anything.” The Applicant stated that he was cautioned pursuant to s 22 of the Mental Health Act and taken to the Hospital by ambulance with a police escort “against [his] wishes”. The Applicant said he had vomited in the ambulance because he had taken “4 panadols” after the police arrived and this was on an empty stomach, as he had had nothing to eat since breakfast. He said that the paramedics disregarded him when he told them that he cannot travel backwards in a vehicle as he gets motion sickness and that he already felt unwell.

The Applicant acknowledged being admitted to the Emergency ward at the Hospital and spending the night there before being placed into the mental health ward the next day. He stated that he spent the night in the mental health ward “feeling unsafe and unheard.” The next day he said that he was interviewed by a panel of three medical professionals which lasted about 30 minutes and the panel determined that he “did not require psychiatric treatment”.
The Applicant then stated that he was diagnosed with Ankylosing Spondylitis in 2004, which is a form of rheumatoid arthritis causing inflammation in some joints which in time leads to calcification of some joints and that once calcified, there is no pain just stiffness. He also referred to having been in pain since he was 14 years old and in constant pain until he started seeing the Rheumatologist in 2004 when he was diagnosed and had been under his care since then. The Applicant referred to previously taking medications, including medicinal cannabis.
He then stated that in early 2022, he decided to “get off” all medication pertaining to Ankylosing Spondylitis and confirmed that by 1 May 2022 he had ceased using medicinal cannabis as a form of treatment. He stated that whilst his preference would be to off all medications, due to his condition he currently used one medication. He then stated as follows:

“Approximately a month before the alleged incident on 1 May 2022, I had stopped using medicinal cannabis as a form of treatment and decided to also quit smoking cigarettes as I used to smoke quite heavily, I am proud to say that I no longer smoke at all, and I have not used medicinal cannabis as a form of treatment.”

Annexed to the Applicant’s statement were the clinical notes from his Rheumatologist from 24 May 2022 to 30 May 2023. The Applicant’s statement also refers to having his licence suspended and his firearms seized. Following receipt of a letter from the Firearms Registry on 10 February 2023 that requested an assessment be completed by a psychologist or psychiatrist, he said that he attended GP for the purpose of obtaining a mental health risk assessment report. He said that he was referred by his GP to a psychiatrist and booked an appointment with her.
The Applicant, together with his wife, attended the appointment with the psychiatrist on 29 May 2023. The psychiatrist referred him for a blood test as well as a urine drug screen to detect if he had any drugs in his body. He stated that the report from the psychiatrist dated 30 May 2023 was sent by her directly to the Firearms Registry, together with the results of the blood and urine tests and that he was not provided with a copy of the report. The Applicant also annexed a character reference from a friend, a serving member of the NSW Police Force, dated 1 July 2023.

Applicant’s oral evidence

As indicated above, the Applicant gave oral evidence before the Tribunal and was cross-examined by counsel for the Respondent. The Applicant confirmed his medical diagnosis of Ankylosing Spondylitis, and that he had been on various medications, including medicinal cannabis and THC oil. It was put to him that on 1 May 2022, the Applicant had run out of medicinal cannabis, and he indicated that he had stopped taking medicinal cannabis and THC oil around six to eight weeks before. He denied any changes, withdrawal or low mood and said he was in a “better mood” as he was not drugged out. He stated that he was a heavy smoker and had smoked “rollies” and used about 3 pouches a week, which would be about 150 grams of tobacco per week. He said that as of 1 May 2022, he was still smoking but had cut down a little and was probably smoking a pouch and a half per week.
The Applicant confirmed that on 1 May 2022 he had written some facts about their financial situation for his wife and that it had taken him around 30 seconds and that he then gave her the note. He agreed that he went to the shed, turned on the petrol generator and worked for a short period of time, before going to the door and seeing his wife, who was on the phone. She told him that she hadn’t known what he was doing and had rung the police. The Applicant said that he was in disbelief.
When asked about his conversation in the car with Officer Ackling about his physical problems and having “enough,” the Applicant said he had had enough of the situation with his wife and was talking about divorce and getting away from each other. In relation to Officer Ackling’s request to “talk” to him, the Applicant said that he had had enough of his wife and the last thing that he wanted was a stranger in his face asking questions. He acknowledged that he had said something to Officer Ackling along the words that he was “fucking sick of it.” When asked about saying that he had seen a psychiatrist, he denied this and say that he had misspoken. He agreed that it was “about right” that he told the officer that he had no plans.
The Applicant confirmed that he had spent two nights in the Hospital and that the second night was in the “mental” ward and that he was discharged the following day. He said that he was interviewed by a panel of three psychiatrists and assumed that they had no concerns with his mental health as otherwise he would have been kept there. He agreed that this was his assumption and that he was not told this. The Applicant said that there was no follow up and that he did not receive any referrals from the Hospital. He said that that he did vaguely remember receiving a telephone call, possibly from a local health person, after coming out of the hospital but he could not recall.
The Applicant was asked about various entries in the Hospital medical records. The Applicant confirmed that he had told Hospital staff that he had chronic pain “at the time,” had taken Panadol, had vomited in the ambulance and that he “must have” told the Hospital staff about having used THC oil up until three days before. He said that he could not remember the conversation but accepted that if it was recorded that it had occurred. He said that it was possible that he may have had some THC oil left over from a script from another doctor. When it was put to him that he told the Hospital staff that he was “smoking cigarettes and approximately 30 cones of weed a day”, the Applicant said that this was what he was smoking prior to the event. The Applicant was asked various questions about the Hospital medical records and his general response was that he could not recall what he said, but if it was recorded, then he “would have.”
The Applicant was asked whether anyone had told him in the Hospital that he had been diagnosed with carbon monoxide poisoning and he said that they “were trying to say that.” The Applicant then confirmed that it was a doctor who had said that. The Applicant disagreed with the suggestion that he had tried to self-harm with carbon monoxide on 1 May 2022 and that he had done so in an attempt to take his own life. The Applicant also said that he disagreed with his wife’s comment that he had tried to gas himself with the generator and that he had had a pipe in his mouth.

Oral evidence of Applicant’s wife

In her oral evidence, the Applicant’s wife said that “from memory”, the Applicant had been off cannabis for one month at the time of the 2022 Incident and was trialling things. She said that he might have had some oil left but that it did not have THC in it but that she could not remember. The Applicant’s wife said that she could remember going to the Applicant’s GP with him after the 2022 Incident and also going with him to see the psychiatrist. She said that “from memory”, she had told his GP that she had misunderstood what had occurred at the time of the 2022 Incident and that her husband had been present when she spoke to his GP.
The oral evidence from the Applicant’s wife was to the effect that she was probably distressed and emotional at the time of the 2022 Incident, and that when she made the emergency call, she thought that the Applicant had tried to hurt himself. She recalled saying during the emergency call, that “it’s ok, he’s opened the door,” but that the police said that they had to send someone. She said that later, after she had talked to the Applicant, she no longer thought that it was the case that he had tried to hurt himself. She said that when the Applicant was in the Hospital, she had not had time to think about it and that it was only once the Applicant got home and they talked about it, that she “didn’t know what to think.”
In relation to whether the Applicant was attempting self-harm, the Applicant’s wife said that at the time of the 2022 Incident she thought “maybe” he had. She said that she and the Applicant had spoken about it “numerous times” since then and that she had had a late night before the 2022 Incident and they had had an argument and that she had “overreacted at the time”. She said that she had attended the appointments with the Applicant’s GP and the psychiatrist with a view to him getting his licence back and she was “fine” with this.
In relation to her comment at the time of the seizure of the Applicant’s firearms that he was going to kill her, the Applicant’s wife said that this was said as a joke and that she did not mean it, and that she knew that he would be upset about losing his guns. She acknowledged that she had gone with her husband to the appointment with his GP to support the return of his licence and that she had told them that she had misunderstood his actions on 1 May 2022. She confirmed that she had told the GP this and also had a “good long chat” with the psychiatrist. She confirmed that she was at the Tribunal to support the Applicant getting his licence back.
When it was suggested by counsel for the Respondent that there had been no misunderstanding by her about the 2022 Incident, the Applicant’s wife said that she disagreed with this statement. She also disagreed that the evidence that she had given was false.
In cross-examination by counsel for the Applicant, the Applicant’s wife said that she had misunderstood what had happened inside the shed on 1 May 2022. She indicated that she was turning the handle to the shed the wrong way and that the code had not been changed. She put this down to her being in a hurry at the time. The Applicant’s wife confirmed that she had made a phone call to emergency services when she could not get into the shed and that once the Applicant had opened the door, she had told them not to worry about coming out. She said that the generator was about one to one and half metres away and that there was no power in the shed. The Applicant’s wife said that the code to the shed had not been changed and that police had not asked her to open the shed nor had they gone down there.
In re-examination, it was put to the Applicant’s wife that on 1 May 2022 she had believed the code had been changed and she said that it had all happened so quickly and that she just could not get in and acknowledged that she is a “worrywart”.
Portions of the BWV footage were played in the hearing whilst the Applicant’s wife was giving evidence, and she was asked further questions by me following the footage being played. The Applicant’s wife said that things had changed since the 2022 Incident. She said that she was emotional at that time and that she had made assumptions about what the Applicant was doing. She said that she was now not sure if the code had been changed and that generally when you shut the shed door, it locked. The Applicant’s wife said that her husband had been holding the metal pipe when he opened the door and that it was not attached to his mouth. She said that it was a rod that he was holding and that she had reached the conclusion at the time that he was using it to suck gas.
The Applicant’s wife said that she had had chats with the Applicant and that he had explained his side of the story to her and as a result, she had changed her conclusion. She said that she realised that her husband had not changed the code and that there was nothing connected to the generator. As a result, she had now come to believe that maybe she was wrong about what had happened but that at the time of the 2022 Incident she had thought differently.
The parties were given a further opportunity to put questions to the Applicant’s wife. Counsel for the Respondent asked the Applicant’s wife about her husband at the time of the 2022 Incident. When it was put to her that he had been sitting down outside the garage with his head in his hands, she stated that she could not remember this. When she was shown the Call Record, she said that she could not remember saying this, or saying that the Applicant was “wobbling”. The Applicant’s wife said that this was only part of the call and that she had no idea what she had been asked.

Discussion

As referred to previously, the threshold issue to be determined is whether or not, having regard to s 11(4)(b) of the Act, the Applicant’s actions relating to the 2022 Incident constituted an attempt at suicide via carbon monoxide poisoning.
The Applicant did not dispute that he had given the note to his wife before going to the shed. I am satisfied from the evidence, and in particular the BWV footage that the Applicant’s wife told police that prior to the 2022 Incident, the Applicant had “chucked” the note at her whilst she was inside the house and that shortly afterwards she could hear a motor running and that once she realised that the sound was coming from a generator in the shed that she said that she knew that the Applicant was doing something. I am satisfied that the Applicant’s wife attempted to enter the shed, and when she was unable to open the door, she banged on it, tried the code again, and yelled at the Applicant and that at 2.35 pm she called emergency services to advise that her husband was trying to gas himself in the shed.
I am satisfied that the Applicant answered the shed door to his wife at approximately 2.36 pm and that the Applicant’s wife advised emergency services that the Applicant was now out of the shed and that she referred to his “depression”, that two children were present at the residence and that at 2.37 pm she reported that the Applicant was “sitting os the garage with his head in his hands” and that he “was wobbling but is steady now”.
I am satisfied that when the Applicant’s wife later spoke with Officer Ackling, she said that the Applicant opened the door “with a pipe in his mouth” and that he had “obviously” been “sucking the gas” and “had set up his generator to get the gas.” I am satisfied from the BWV footage that the Applicant’s wife re-enacted the Applicant’s actions when he opened the shed door and that this is consistent with the Applicant holding a pipe in his mouth and sucking fumes through it, and that her actions were also consistent with someone swaying and stumbling. The report given by her on the BWV footage are broadly consistent with the references in the ambulance record and in the Hospital Patient Record.
It was the Applicant’s contention that his wife had misunderstood what he was doing during the 2022 Incident and that he had in fact been working in his shed for around two to three minutes, using the generator to grind steel and was wearing earmuffs. He denied having changed the code to the lock and said he answered the door once he could hear his wife knocking. The Applicant’s wife at no time provided any evidence of having heard the sound of steel being ground or to the Applicant wearing or holding earmuffs.
It is clear from the medical records from the Applicant’s GP that following the 2022 Incident, the Applicant spoke with his GP on three occasions and advised on the first occasion on 16 May 2022 that he felt that his “wife is overanxious and goes over the top”. On 1 July 2022, the GP records include an entry that the Applicant “feels very strongly” that his wife rang the police when she was worried because she could not open the door after putting in the wrong code. On 21 February 2023, almost nine months after the 2022 Incident, the GP records indicate that the Applicant’s wife attended with the Applicant on that day and that the Applicant’s wife mentioned “that she had a misunderstanding that [the Applicant] may harm himself however subsequently it was found to be untrue”.
The Applicant’s wife also attended the Applicant’s appointment with a psychiatrist on 29 May 2023, over a year after the 2022 Incident. It was not in dispute that this appointment was for the purpose of obtaining a report for the Applicant in response to a request from the Firearms Registry regarding his licence. The report from the psychiatrist indicates that the 2022 Incident “was clearly a miscommunication and misunderstanding on the part of his wife who has highly anxious personality traits”.
As referred to above, the Applicant’s wife gave evidence at the hearing before the Tribunal on 11 April 2024, almost two years after the 2022 Incident. Her evidence was that had been both tired and emotional at the time of the 2022 Incident, and that she had made assumptions about what the Applicant had been doing at that time. She said in her evidence before the Tribunal that her husband had been “holding” the metal pipe and that it was not attached to his mouth when he opened the door.
The 2022 Incident occurred on 1 May 2022 and the entries in the Call Record were being made in real time in response to information being provided by the Applicant’s wife from 2.35 pm when she made the emergency call until approximately 2.42 pm when the police arrived at the Applicant’s residence. The BWV footage commenced at 2.43pm and it captures both the words and actions of the Applicant’s wife when Officer Ackling was present.
Whilst the Applicant’s wife may have felt tired and emotional at the time of the 2022 Incident, I accept Officer Ackling’s view that she displayed genuine distress and concern over the Applicant’s welfare during this time. The Applicant’s wife can be seen interacting on the BWV footage with her young child whilst speaking to police, and I am satisfied that she appeared calm throughout and consistently expressed the view that her husband had just tried to kill himself.
The Applicant’s wife gave evidence at the hearing that after discussing the circumstances of the 2022 Incident with her husband, she had come to think that she “misunderstood” what had happened and that she had made certain assumptions about the 2022 Incident at the time. Whilst I accept that the Applicant’s wife was telling the truth to the best of her ability before the Tribunal, this evidence was being given almost two years after the 2022 Incident took place and following numerous discussions with her husband about what he said had taken place on that day. I also accept from the comments by the Applicant’s wife in the BWV footage that she was aware that at least one of the Applicant’s firearms was of sentimental value to him, and that he would be upset by the firearms being seized by police, even joking on the BWV footage that the Applicant was going to “kill” her.
In the circumstances of this case and where her evidence differed, I prefer the contemporaneous evidence of the Applicant’s wife as to what she observed in the lead up to, and during the 2022 Incident. The contemporaneous evidence of the Applicant’s wife is contained in the BWV footage and the supporting records including the Call Record, the 2022 COPS Event, the ambulance records, and the Hospital records and in my view is more reliable that her recollection of events given at the hearing, almost two years after the 2022 Incident.
Whilst the Applicant’s wife stated in evidence that she could not remember telling the telephonist at 2.37 pm on 1 May that her husband was “…SITTING OS THE GARAGE WITH HIS HEAD IN HIS HANDS -POI WAS WOBBLING BUT IS STEADY NOW”, I am satisfied that she did so. This entry in the Call Record is consistent with her physical re-enactment of the Applicant’s conduct when he opened the shed door to her earlier that day that is captured by the BWV footage and referred to above. It is also consistent with the Hospital notes from Medical Officer Prasad dated 3 May 2022 under the heading “Collateral from wife” that refers to the Applicant being “wobbly and stumbling”.

Carbon monoxide poisoning

In his statement, Officer Ackling indicated that he observed the Applicant for a period of around five minutes and that the Applicant appeared flushed in the face, his breathing appeared laboured, he kept breathing in heavily trying to clear a runny nose, was yawning and kept putting his head back on the head rest. Officer Ackling was cross-examined in relation to this and conceded that he was not familiar with the Applicant’s usual complexion and was not able to know whether the Applicant generally has a flushed complexion or not.
Having regard to the BWV footage relating to Officer Ackling’s interactions with the Applicant whilst the Applicant was seated in his vehicle, I am satisfied that the Applicant was breathing heavily during this time, yawning and sniffing on occasion and that he kept putting his head back on the seat head rest whilst talking to Officer Ackling. Whilst I am satisfied that Officer Ackling observed the Applicant to be flushed in the face, given the concessions made by Officer Ackling, I give no weight to his observations insofar as they relate to the Applicant’s complexion.
The Respondent referred to an extract from the Royal College of Pathologists of Australia relating to Carboxyhaemoglobin (Extract) that was contained in the bundle of legislation and cases that were provided to the Tribunal. relating to the “Investigation of possible carbon monoxide exposure and poisoning.” The “Interpretation” indicates as follows:

“In carbon monoxide poisoning, carboxyhaemoglobin levels provide an approximate guide to status.
Between 0-20%: headache and dyspnoea on exertion;
above 20%: confusion and irritability…”

The extract also refers to the reference interval and indicates that “Carboxyhaemoglobin 0.2 – 2.0 % of total haemoglobin in normal blood; up to 8.5% in heavy smokers.”
The Hospital Emergency Department Assessment records for the Applicant include a reference under the headings “Clinical Impression” and “Assessment/Plan” to “carbon monoxide poisoning”. These records include the following entry:

“admitted under toxicology – discussed with Dr W…with thanks
repeat VBG in 4 hours and then mane
Await tox clearance for PECC rv – PECC ereferral done”

The Hospital Discharge Transfer Documents from the ED to the medical ward indicate the main issues to be “Intentional self harm – gas inhalation from exhaust” and indicate “carboxyhb – 18.7 %. Stable vitals” and repeats the above Plan. The Admission Documents for the Applicant contain an entry at 7.48 pm on 1 May 2022 which refers to “CO poisoning” and indicates that the Applicant’s COBH level was 18.9%. The plan notes “CO poisoning – 20% - symptoms expected dizziness, nausea, dyspnoea, throbbing headache” and included admitting the Applicant, hydrating him, and giving him high flow oxygen, before a repeat VGB.
A record from a Specialist Medical Officer entered at 9.21 am on 2 May 2022 under the heading “Assessment/Plan” records “Carbon monoxide poisoning” and that the Applicant’s “Elevated CO level is likely multifactorial (heavy smoker + contribution from petrol generator)”.
In the Applicant’s written submissions, it was submitted that the medical records could be interpreted to mean that the listed symptoms are the symptoms that would be expected if someone was to have carbon monoxide poisoning, particularly where there is no evidence that the Applicant complained of any symptoms.
In his evidence, the Applicant accepted that he had a headache after coming out of the shed on 1 May 2022, but said that such headaches were usual for him and that he had taken four paracetamol tablets to treat it. The Applicant acknowledged that he had vomited in the ambulance, although he said that this was due to motion sickness and that he only vomited a small amount of bile as he had not eaten that day. Whilst the Applicant blamed his headache and vomiting on other causes, these are also symptoms of carbon monoxide poisoning, as is dizziness and dyspnoea. In my view, these are consistent with the contemporaneous descriptions of the Applicant given by his wife, and consistent with the Applicant’s appearance on the BWV footage.
I am satisfied from the Hospital records for the Applicant that he was diagnosed with carbon monoxide poisoning and was admitted to a medical ward at the Hospital on 1 May 2022, that he remained there overnight and received treatment for carbon monoxide poisoning. My finding in this regard is fortified by the Applicant’s acknowledgment in his evidence that he was told by a doctor at the Hospital that he was being treated for carbon monoxide poisoning.
Whilst I accept that the Applicant’s elevated CO levels were likely multifactorial, and that the Applicant’s heavy smoking may have contributed to the carbon monoxide poisoning, I am satisfied that his smoking was not the only, or indeed the primary, cause of the Applicant’s elevated carbon monoxide levels.
The Applicant’s evidence was that he was working in the shed during the 2022 Incident and had only had the generator on for around two to three minutes whilst he was grinding a piece of steel. I accept the Applicant’s evidence, including the photographs produced by him, that the shed was of a substantial size, was well ventilated, had gaps in it as well as whirly birds in the roof. No evidence was adduced by the Applicant as to any problem with the generator, or any issue that would account for the Applicant developing carbon monoxide poisoning after working the well-ventilated shed for such a short period of time.
I have had regard to all the available evidence, particularly the contemporaneous evidence from the Applicant’s wife that when the Applicant opened the shed door to her at approximately 2.36 pm on 1 May 2022, she observed him “sucking the gas” from the generator through a pipe in his mouth. In the circumstances, I am satisfied that the primary cause of the Applicant’s carbon monoxide poisoning was the Applicant’s inhalation of fumes from the generator inside his shed through a tube in his mouth. I am satisfied that in these circumstances, the size of the shed or the air flow within it, had no effect on the Applicant’s inhalation of the fumes as they were contained within the pipe that was in his mouth. I am also satisfied that due the manner of the inhalation through the pipe, that the Applicant’s wife would not have been affected by any fumes when her husband came to the door.
It was submitted on behalf of the Applicant that the police did not carry out any search of the inside of the shed, even though the Applicant gave evidence that he requested that they do so. The BWV footage does not include any such request by the Applicant. It does however capture the Applicant’s wife telling Officer Ackling that he could have a look in the shed if he wanted to. Officer Ackling asked her if the shed was unlocked, and she replied that the Applicant had probably closed the door and changed the code. The Applicant’s wife suggested that Officer Ackling ask the Applicant for the new code and Officer Ackling laughed and indicated that they would try but that he did not think the Applicant would be very co-operative.
In his oral evidence, Officer Ackling said that the Applicant had refused to give police the code to the shed and that either he or another officer had attempted to open the shed door but were unable to do so as it was locked. I am satisfied from the available evidence that the shed door locked when it was closed and required the code to be entered before it could be opened. It is apparent that in the circumstances, unless the police officers had been given the code to unlock the shed door by either the Applicant or his wife, they would not have been able to gain access to the shed, regardless of whether the Applicant had changed the code or not. It appears from the final frames in the first portion of BWV footage that an officer was walking towards the shed, although no footage is available of the officer at the shed door.
I accept the evidence of Officer Ackling that either he or another office tried to gain entry into the shed but could not do so as it was locked. Whilst I accept that the Applicant’s wife said that she did not see the police go near the shed, it is apparent from the BWV footage that she was looking after her children and on occasion, moved inside the house, so that the shed may not have been visible to her at all times.
It is evident from the first portion of the BWV footage that Officer Ackling is asking the Applicant about the 2022 Incident and that the Applicant did not take up the invitation to ‘jump’ out of his car. When told that the Applicant’s wife had called police “pretty distressed” because the Applicant had apparently tried to gas himself in the garage with a generator, the Applicant’s immediate response was “Oh well”. At no time during that initial conversation with Officer Ackling did the Applicant offer to take the Officer to the shed or provide any details about what had occurred, other than saying that he had been working in the “garage”, which he later changed to “shed”.
In circumstances where the Applicant denied any attempt at suicide or self-harm during the 2022 Incident, it is not apparent why the Applicant did not take up Officer Ackling’s offer to “talk” to him or to show him the shed at that time. Accordingly, on the available evidence, I am not able to be satisfied that the Applicant asked Officer Ackling to look at the lock of the shed or to investigate the shed at any time on 1 May 2022.

Applicant’s health and mood

It was acknowledged in the submissions for the Applicant that as of 1 May 2022 he was not in a good place and was suffering from a degree of stress. It was submitted however that a “down” man does not equal a suicidal man and that the Applicant denied any attempt at suicide or self-harm. The Applicant referred to his wife and his children and the Hospital Clinical notes records that the Applicant identified his children as his “protective factors”. The Applicant acknowledged in his evidence that he has Ankylosing Spondylitis, which had caused him pain since he was 14 and he was diagnosed in 2004 and under the care of the Rheumatologist. The Applicant said that in early 2022 he decided to get off all medication for his treatment and that approximately one month before the 2022 Incident, he had stopped using medicinal cannabis as a form of treatment and had decided to also quit smoking cigarettes as he used to smoke quite heavily.
While I accept that the Applicant had given up smoking at the time of the hearing and was no longer using medicinal cannabis as a form of treatment, the position as at the time of the 2022 Incident is not so clear.
In his oral evidence before the Tribunal, the Applicant said that he had stopped taking medicinal cannabis and THC oil around six to eight weeks before the 2022 Incident. He denied any changes, withdrawal symptoms or low mood at that time and said that he was in a “better mood” as he was not “drugged out”. He confirmed that he was still smoking “rollies” at the time of the 2022 Incident but had cut down a little.
As referred to above, the BWV footage captures the Applicant’s wife speaking with Officer Nshangalume and the female police officer and their conversation can be heard as Officer Ackling approaches. I am satisfied that the Applicant’s wife is talking about him using “medicinal marijuana” to try to help ease his pain, and that “he” had recently run out of it, and that when he withdraws he is in “a completely different mood”, is “very depressed”, “irritable” and “hard to talk to or live with”. I am satisfied that the references to “he” and to “him” are a reference to the Applicant. I am satisfied that consistent with the Ackling Statement, the Applicant’s wife talked to police about the constant pain that the Applicant was in and the treatments that he had been receiving for his condition.
As referred to above, the BWV footage shows the Applicant telling Officer Ackling that, “I have my own physical problems that are never going to get better- I’ve had enough, so there you go.” The Applicant advised the officer that “there’s nothing to talk about” and that he had talked to doctors, psychiatrists and been on drugs and said, “I’m in pain and I’m fucking sick of it.” Later, when he was advised that his licence was suspended and that his firearms were to be seized, the Applicant is captured on the BWV footage stating words to the effect of “just more reason fucking to not be here isn’t it.”
Whilst the Applicant denied the use of drugs, alcohol or prescription medication to Officer Ackling as at the time of the 2022 Incident, his wife stated that he had recently run out of medicinal marijuana and the ambulance records indicate that the Applicant had stopped medical THC use “3/7” ago and “expressed distress about spinal condition and unable to get any relief”. The narrative details in the 2022 COPS event includes the following entry:

“The PAT currently suffers from a debilitating bone condition which causes all his joints to calcify. This causes the PAT an immense amount of pain. The PAT has been taking various medications over the years including medicinal and illegal forms of cannabis. The PAT ran out of his medications on Thursday with the pain becoming worse over the weekend.”

I am satisfied that the initial Emergency Nursing Assessment of the Applicant on 1 May 2022 indicates a Social History of “Pt smoking cigarettes and approx. 30 cones of weed a day” and that the Applicant’s clinical notes include a background of “THC abuse for chronic pain, now on medicinal marijuana” and includes an outline of his previous medication use, including antidepressants, medicinal CBD oil, and synthetic THC. The Applicant’s current medications were noted to include medicinal cannabis and that he was reported as advising that he was “happy to take marijuana to assist” and that he was “now trialling medicinal marijuana.”
I am satisfied that the Toxicology test screen conducted by the Hospital on 1 May 2022 detected Urine Benzodiazepines and Urine Cannabinoids in the Applicant’s system and that the collection time of the sample was 7.06 pm on 1 May 2022.
The Applicant and the Applicant’s wife gave oral evidence at the hearing that the Applicant had ceased the use of medicinal marijuana at least a month prior to the 2022 Incident. The letter dated 1 November 2022 from the Rheumatologist states that the Applicant probably had a “wind up phenomenon from being off cannabis for the last 8 months after regularly taking this for decades”. This letter suggests that the Applicant had ceased cannabis in approximately March 2022 but there is no reference to this in any previous letters from the Rheumatologist and it appears that the entry is based on the Applicant’s self-report to him in November 2022.
The Hospital Progress notes record that:

“…Pt States occasionally feels life is not worth living but does not contemplate suicide or self-harm. Pt feels that due to his chronic pain issues, he is unable to keep up with little children, fear of being wheelchair bound by the time his children are teenager. Pt has a past history of THC abuse to manage his chronic pain issues…Previous MH diagnosis of ?Adjustment Disorder and? Depression…”

The Hospital records contain various further entries in relation to the pain and the impact that it had on his sleep as reported by the Applicant. An entry dated 1 May 2022, records that “Pt has chronic pain 24/7 and has stated that the pain doesn’t get better at all”. The Applicant agreed that this is what he had said at the time. The Hospital records include reference to the Applicant being given medication for his pain, and breakthrough pain, whilst in Hospital, namely Nurofen, Endone and Panadeine Forte. He was given diazepam for anxiety and temazepam to help him sleep and was also given ondansetron.
It was not in dispute that the Applicant was detained following the 2022 Incident pursuant to s 22 of the Mental Health Act and I am satisfied from the Form 1 in the Hospital Records that on 2 May 2022, the Applicant was found to be a mentally disordered person by a medical practitioner and was kept overnight in the Hospital mental health ward before being discharged home on 3 May 2022. Section 15 of the Mental Health Act defines “mentally disordered persons” as:

A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary—
(a) for the person’s own protection from serious physical harm, or
(b) for the protection of others from serious physical harm.

Having regard to all of the evidence in this matter, I am satisfied that at the time of the 2022 Incident, the Applicant was continuing to use medicinal marijuana to help him with the chronic pain resulting from his Ankylosing Spondylitis but that he had recently run out of it. This is consistent with the contemporaneous evidence from the Applicant’s wife as well as the documentary evidence before the Tribunal, including the Call Record, the Ambulance and Hospital records and the Applicant’s toxicology results.
I am satisfied that as a result of running out of the medicinal marijuana, the Applicant was exhibiting signs of depression and irritability at the time of the 2022 Incident but that there was no medical diagnosis that the Applicant was depressed. It follows that I am not satisfied that the Applicant had ceased using medicinal marijuana one month prior to the 2022 Incident. I am also satisfied that at the time of the 2022 Incident, the Applicant’s business was going slowly and had irregular cash flow and that the Applicant felt that his wife was “badgering” him about the lack of cash flow and that she was concerned about their financial stability. I accept that there was co conflict between the Applicant and his wife at the time of the 2022 Incident and that the Applicant was not in a good place.
I am satisfied that the responses given by the Applicant to Officer Ackling shortly after the 2022 Incident, including “I just wanted to get the fuck outta here”, “I have my own physical problems that are never going to get better -I’ve had enough, so there you go” and “just more reason fucking to not be here isn’t it” are consistent with the Applicant not being in a good place.
Whilst it was submitted on behalf of the Applicant that there was no suicide note, I am satisfied that shortly before going into the shed, the Applicant “chucked” the note at his wife. As I have previously found, this note contained details of the family finances, including the details of a life insurance policy. Whilst the Applicant said that he could not recall writing the words “I hope this is enough,” I have previously found that the note did contain those words. I am satisfied that given the combination of the financial information and the words “I hope this is enough,” that the note is consistent with a suicide note.
This finding is strengthened in light of the context in which it was written, and in particular that it was given to the Applicant’s wife just before the Applicant went downstairs to the shed. I have also had regard to the Applicant’s repeated failure in cross-examination to acknowledge that the note contained these words or to provide an explanation for them.

Conclusion in relation to threshold issue

Given the findings that I have made, I am satisfied that, having regard to s 11(4)(b) of the Act, the Applicant’s actions relating to the 2022 Incident constituted an attempt at suicide via carbon monoxide poisoning. Whilst I have had particular regard to the contemporaneous evidence of the Applicant’s wife, it is clear that her evidence is supported by other evidence, including the objective evidence that: the Applicant was diagnosed and treated for carbon monoxide poisoning after the 2022 Incident; that he was an involuntary patient at the Hospital between 1 May and 3 May 2022; that he complained of chronic pain and received medication for it during his Hospital admission; and was found by a medical practitioner to be a mentally disordered person on 2 May 2022.

On the evidence before the Tribunal, it is not possible, or even necessary to determine why the Applicant opened the shed door at 2.36 pm, including whether it was because he had changed his mind about committing suicide or because he was affected by the carbon monoxide fumes that he was inhaling. In any event, it is not unusual for people to change their mind once having commenced a suicide attempt or to be unsuccessful in such an attempt.

Grounds relied upon by the Respondent

As set out above, the Respondent relied on three grounds as to why the Decision should be affirmed, namely:

It is not in the public interest for the Applicant to continue to hold his licence (see s 24(2)(d) of the Act and cl 20 of the Regulation);

Without limiting the generality of the above, there is reasonable cause to believe the Applicant may not personally exercise continuous and responsible control over firearms particularly because of his attempt at suicide or self-harm in the 2022 Incident (see s 11(4)(b) and s 24(2)(a) of the Act); and

The Applicant is no longer a fit and proper person to hold the licence (see s 24(2)(c) of the Act).

Public Interest

The phrase “public interest” is not defined in the Act. In O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9 at [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety 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.

The concept does include standards acknowledged to be for “the good order of society and for the well-being of its members”: Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor(No 2) (1995) 131 ALR 657, 681, the High Court said:

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

The issue of public interest allows for matters going beyond the applicant’s character to be taken into account. They include public protection, public safety, and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. In the present context and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety.
In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward), at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130].
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 (AML) that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. “The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests” at [8].
Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] - [66]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32], Montgomery JM when considering the question of public safety, stated that, "In determining this issue it is my view that 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".

The “reasonable cause to believe” ground

The Respondent also relied upon s 11(4)(b) and s 24(2)(a) of the Act, namely that there is “reasonable cause” to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of his attempt at suicide in the 2022 Incident.
The relevant principles relating to “reasonable cause” were considered by the Tribunal in Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [34] – [37] as follows:

34.   The other two grounds relied on by the respondent apply if the Commissioner “has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms” because of any previous suicide attempt (s 11(4)(b) or because of the applicant’s “being of unsound mind” (s 11(4)(c)).
35.   Emmett J considered the meaning of “reasonable cause to believe” in Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013. His Honour said that the words “are not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant [in that case, an applicant for preliminary discovery] to show objectively that there is reasonable cause for the relevant belief. It is not necessary to demonstrate whether or not the applicant has the belief” (at [10]).
36.   As Hennessy DP pointed out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [22], “Not every suicide attempt will justify the revocation of the person’s firearms licence. The Tribunal must assess the likelihood that [the applicant] will attempt suicide or self-harm again and, if that happens, the likelihood that a firearm will be used. There is no suggestion that [the applicant] would attempt to harm others”.
37.   Her Honour concluded that the applicant’s previous attempt did not give rise to reasonable cause to believe that the applicant would not personally exercise continuous and responsible control over firearms. The test, in context, was an objective one (State of New South Wales v Taylor [2001] HCA 15, [10]), her Honour said, setting aside the revocation of the applicant’s license.

The parties agreed that the “reasonable cause” test was the appropriate test in a consideration of s 11(4)(b) of the Act.

Fit and proper Person

The Act places an emphasis on the need for licensees to be 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.
The issue of an applicant’s fitness and propriety is one of fact to be determined objectively, taking into account 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, at [37].
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 [22].
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.

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.

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.

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.

Consideration

Candour

It was submitted on behalf of the Applicant that in order for the Tribunal to make a finding that the Applicant had attempted suicide that the Tribunal would have to find that the Applicant and the Applicant’s wife were dishonest. My findings in relation to the Applicant’s wife have been set out above.
Whilst I have found that the Applicant attempted suicide by way of carbon monoxide poisoning, it does not follow that I have found the Applicant to be dishonest or to be a liar, and the reasons for my factual findings have been set out above. There are many reasons why a person may minimise or deny an attempt at suicide or self-harm and on the available evidence, I am not able to make a positive finding that the Applicant is being deliberately dishonest or that he is a liar, and I do not do so.
I accept however that the success of the firearms licensing scheme is wholly dependent on licensees providing full and frank disclosure in their communications with the regulator: Weckert v Commissioner of Police, NSW Police Force [2011] NSWADT 197; Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18]; Keys v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 91 at [104].
I also accept the submission by the Respondent that a lack of accuracy, candour or frankness on the part of an applicant may mean that it is not in the public interest for him or her to hold a firearms licence: DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 (DMC); Ravenscroft v Commissioner of Police, NSW Police Force [2024] NSWCATAD 181 at [102]. I accept that these may also be matters suggesting that an applicant is not a fit and proper person to hold a licence.
It is evident from the initial conversation between Officer Ackling and the Applicant that is captured on the BWV footage, that Officer Ackling asked the Applicant to “jump” out of the vehicle and that the Applicant declined to do so. Officer Ackling gave the Applicant a number of opportunities to tell him what had happened during the 2022 Incident and the Applicant failed to do so, telling him that there was nothing to talk about. Whilst the Applicant told Officer Ackling that he had not attempted suicide and that he had been working in the shed, he provided no details of what he had been doing and made no attempt to take the officer to the shed or to show him what he had been working on.
I have previously found that the Applicant told Officer Ackling that he had could not remember the combination for his firearms safe, but shortly after being told that the safe could be forcibly opened by police, the Applicant entered the code and unlocked the safe.
The Tribunal in DMC said at [57], that “[t]he level of co-operation and frankness demonstrated by a licensee in dealing with the regulator is indicative of the licensee’s character” and at [58], “[a] licensee has an obligation to act in a manner that demonstrates candour and frankness in his or her dealings with the regulator”.
I agree with these comments and in my view, there is an expectation that firearms licence holders co-operate with police in every way possible, especially in the circumstances of this matter where police had attended the property following an emergency call by the Applicant’s wife that the Applicant had just tried to kill himself. I am satisfied that the Applicant did not co-operate with police and was neither frank nor candid with them about what occurred during the 2022 Incident, and that he did not immediately co-operate with police when asked to provide the code for his firearms safe.
Whilst I have found that the 2022 Incident was an attempt at suicide by the Applicant, I would have reached the same conclusion in relation to the Applicant’s failure to co-operate with police and to be frank and candid, even if I had accepted that there was no such attempt. In my view, the Applicant’s lack of co-operation and his failure to be frank and candid with police, suggests that there is cause to be concerned as to whether the Applicant is likely to demonstrate these same characteristics in any future dealings with the regulator, namely the Respondent in these proceedings.
I am also satisfied that the Applicant has demonstrated a tendency to downplay or deny conduct that might adversely affect the privilege of him possessing and using a firearm, and that this is evident in his dealings with police, medical staff, the Firearms Registry and in his evidence before this Tribunal.

Consideration of risk, including reasonable cause to believe ground (s 11(4)(b) and s 24(2)(a) of the Act)

The Applicant relied on his GP notes, the report obtained from the Applicant’s psychiatrist and submitted to the Firearms Registry and the report obtained from his Rheumatologist. I am satisfied from the report from the Rheumatologist that the Applicant’s Ankylosing Spondylitis, or the drugs prescribed to treat it, will not impact on the Applicant’s ability to exercise continuous or responsible control of firearms, pose a threat to the public or have the potential to put public safety at risk if he was to have possession or use of firearms. In accepting the Rheumatologist’s opinion, my findings are limited solely to his area of expertise, namely the Applicant’s Ankylosing Spondylitis and the medication prescribed for this condition.
As previously referred to, the records from the Applicant’s GP indicated that the Applicant and his wife attended the GP’s surgery on 21 February 2023 and that the GP recorded a discussion with the Applicant and his wife in relation to the alleged history of self-harm. The referral letter to the psychiatrist includes the following (sic):

“MAIN PROBLEM: He was taken to the hospital last year following concern of him harming himself which was subsequently found to be misunderstanding,
His wife misunderstood the situation. I had a discussion with him and his wife. He has no history of any significant mental illness. He has not been on a medication for anxiety or depression. History of ankylosing spondylitis.
There is a issue of firearms and the police has asked him to be referred to the psychiatrist for mental health risk assessment.
I would be grateful for the assessment and your advice…”

The referral makes reference to the Applicant’s Ankylosing Spondylitis and his current medications as an antibiotic and Humira injection.
The report from the psychiatrist is dated 30 May 2023 and is contained in the Respondent’s s 58 documents. The report states that the psychiatrist had access to the referral letter from the Applicant’s GP and the discharge summary from the Hospital and copies of these are attached to the report. The psychiatrist states that she met with the Applicant and gained collateral history from his wife on 29 May 2023. The psychiatrist noted that there was no previous psychiatric history of note and the Applicant denied any psychiatric history of hospital admissions or self-harm attempts in particular.
The report refers to the 2022 Incident and the Applicant’s report that the note was financial calculations on paper for his own piece of mind, and that he put the note down and went to work in his shed. He reported that his wife knocked on the door of the shed and due to the noise of the machinery, the Applicant could not hear it and his wife called the police, which led to an ambulance being called and a “big commotion”. The Applicant reported being taken to the Hospital for an overnight admission for observation and was discharged the following day. At the time of discharge, there was no follow up organised and the Applicant did not present with any mental health symptoms. The psychiatrist noted that the Applicant reported that he had not experience any stresses or symptoms in the last 12 months and that his drug and alcohol history was negative for any current usage of drugs. She recorded that the Applicant described his wife as “highly anxious and supportive”.

The psychiatrist recorded her impression that the Applicant did not have any “Major Mental Illness” symptoms at that time and his episode of presentation in May 2022 was “clearly a miscommunication and misunderstanding on the part of his wife who has highly anxious personality traits. This man does not have any vulnerabilities to a mental illness and has not had any signs and symptoms suggestive of a mental illness in his lifetime.” The psychiatrist opined the Applicant does not have a condition or impairment that may impact on his ability to exercise continuous or responsible control over firearms. She later opined that there “is no history suggestive of the Applicant being a risk to himself or others.”
It is clear that the GP referral letter and the report from the psychiatrist primarily rely on the Applicant’s self-report of the 2022 Incident, with collateral information obtained from the Applicant’s wife in February and May 2023. Whilst both practitioners were provided with the Hospital discharge summary, which includes reference to the Applicant’s carbon monoxide poisoning and treatment, no mention of this is made in the referral letter or in the report. There is no reference by either practitioner to the entries in the discharge summary relating to the Applicant’s use of cannabis oil or the entry “Pt smoking cigarettes and approx 30 cones of weed a day”.
It is apparent that the discharge summary does not include all of the Hospital medical records, including the Form 1 completed by the medical practitioner at the Hospital on 2 May 2022. The psychiatrist accepts the report of the Applicant for an overnight admission for observation only and makes no reference to his medical treatment or that he was an involuntary patient at the Hospital for three days, namely from 1 May 2022 to 3 May 2022.
It would appear from the report that the Applicant reported to the psychiatrist that at the time of discharge from the Hospital, there was no follow up organised as he did not present with any medical health symptoms.
Whilst the Applicant gave evidence before the Tribunal that he was interviewed by a panel of three medical professionals which lasted about thirty minutes and the panel determined that he did not require psychiatric treatment, he acknowledged in cross-examination that he had “assumed” that this is what they determined.
The Hospital medical records in evidence before the Tribunal that the clinical notes for the Applicant include the following diagnosis:

Suicidal follow up post argument
?Situational crisis
?Adjustment disorder
?depression due to chronic pain and THC withdrawal

The clinical notes for 3 May 2022 indicate the following “Impression”:

Not depressed or psychotic
Situational crisis, adjustment disorder
?Suicidal

I am satisfied from the Hospital records that the Applicant was referred to an Adult Community Mental Health Team by a medical officer on 3 May 2022 and that he was contacted by that service on 4 May 2022. It follows that I do not accept that the Applicant was not suffering from any medical symptoms or that no follow up was requested.
Neither the Applicant’s GP nor the psychiatrist gave oral evidence before the Tribunal. It is evident that the opinion expressed by the psychiatrist is primarily based on the reports of the 2022 Incident that were provided to her by the Applicant and his wife and that the accounts given to her differ from the findings that I have made in relation to the 2022 Incident. On the evidence before the Tribunal, it is not apparent what effect these findings would have on the opinion expressed by the psychiatrist in her report dated 30 May 2023. In these circumstances, I give no weight to the report or to the opinions expressed by the psychiatrist in that report.
Whilst I have regard to the three character references relied upon by the Applicant, they provide extremely limited assistance in my consideration of this matter. Whilst the reference dated 1 July 2023 indicates that the Applicant is of sound character in his mind and a person, it is not clear what the referee has been told, if anything, by the Applicant about the 2022 Incident. Whilst the referee writes that he is a police officer who deals with people with mental health issues on a regular basis and feels that the Applicant does not have any signs of mental health issues, it is not evident what the factual basis is for this view or what expertise the referee has to allow him to make a mental health assessment. Accordingly, I give this reference extremely limited weight. Given that the other two references date from 1995 and 2002, and significantly pre-date the 2022 Incident, I also afford them extremely limited weight.
I accept that whilst the Applicant was found to be a mentally disordered person by a medical practitioner on 2 May 2022, this does not mean that he was necessarily suffering from a mental illness at that time. I do accept however that the medical practitioner who reached this conclusion was required to have formed the view at that time that the Applicant’s behaviour was so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the Applicant was necessary for the person’s own protection from serious physical harm or for the protection of others. The Form 1 makes specific reference to the Applicant’s denial of the suicide attempt and his minimisation of symptoms.
Whilst I accept the views expressed in AML that “Not every suicide attempt will justify the revocation of the person’s firearms licence”, in circumstances where the Applicant denied the suicide attempt to police and to the Hospital staff, did not engage with the Adult Community Mental Health Team following his release from the Hospital and continues to deny the suicide attempt, including to this Tribunal and in any further engagements with medical practitioners, it is difficult to exclude the potential for the Applicant to attempt suicide again or self-harm and, if that happens, the likelihood that a firearm would be used. There is no suggestion that the Applicant would attempt to harm others.
In light of my finding that the 2022 Incident was an attempt by the Applicant to commit suicide and in the absence of any report from a medical practitioner assessing the Applicant’s future risk taking into account this attempt, I am satisfied that the Respondent, and by extension this Tribunal, has reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of the previous attempt by him to commit suicide. Whilst I accept that the Applicant did not use a firearm in his previous attempt, the absence of any report from a medical practitioner assessing the Applicant’s future risk in light of this attempt, means that the Tribunal cannot reasonably exclude the Applicant attempting suicide or self-harming in the future and using a firearm to do so.
Given the findings that I have made, I am not able to be satisfied that the Applicant is able to possess and use firearms with virtually no risk to public safety. Public safety includes the safety of the Applicant.
I accept the Applicant’s evidence that his firearms hold significant sentimental value for him, however the Applicant’s individual interest must be subordinate to the public interest in ensuring public safety.

Conclusion

Having regard to the principles and objects of the Act, together with all of the evidence in this matter and the findings that I have made, I am satisfied that the reinstatement of the Applicant’s licence would be contrary to the public interest.
Accordingly, in light of the above, the correct and preferable decision is to affirm the Respondent’s decision to revoke the Applicant’s licence.

Order

The Decision under review is affirmed.
Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the Applicant, his wife and children are prohibited.

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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: 13 February 2025

Medium Neutral Citation:	GWJ v Commissioner of Police, NSW Police Force [2025] NSWCATAD 41
Hearing dates:	11 April 2024
Date of orders:	13 February 2025
Decision date:	13 February 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	K Mobbs, Senior Member
Decision:	The decision under review is affirmed
Catchwords:	LICENSING – firearms – licence revocation – denial of attempt to commit suicide or self-harm – public interest – fitness and propriety- risk
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW) Mental Health Act 2007 (NSW) Mental Health Regulation 2019 (NSW)
Cases Cited:	AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Comalco Aluminium (Bell Bay) Ltd v O’Connor (No 2) (1995) 131 ALR 657 Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63 Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37] DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 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 Keys v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 91 Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 Leatham v Commissioner of Police [2021] NSWCATAD 121 Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 McDonald v Director-General of Social Security (1984) 1 FCR 354 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 Ravenscroft v Commissioner of Police, NSW Police Force [2024] NSWCATAD 181 Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184 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 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 Weckert v Commissioner of Police, NSW Police Force [2011] NSWADT 197
Texts Cited:	Extract from Manual of Use and Interpretation of Pathology Tests published by the Royal College of Pathologists of Australia.
Category:	Principal judgment
Parties:	GWJ (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel: T Lowe (Applicant) C Langford (Respondent) Solicitors: Anderson Boemi Lawyers (Applicant) Norton Rose Fulbright
File Number(s):	2023/00261802
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the Applicant, his wife and children are prohibited.