Leatham v Commissioner of Police

[2021] NSWCATAD 121

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Leatham v Commissioner of Police [2021] NSWCATAD 121

Hearing dates:

12 April 2021

Date of orders:

10 May 2021

Decision date:

10 May 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

The decision under review is set aside.

Catchwords:

LICENSING – firearms – mental health issues – alcohol abuse - fit and proper person – public interest

Legislation Cited:

Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Firearms Act 1996

Mental Health Act 2007

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5
Aubrey v Commissioner of Police [2005] NSWADT 266

Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89
Hunt v Commissioner of Police [2021] NCATAD 58

Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117

Kavanagh v Commissioner of Police [2020] NSWCATAD 324

Kogias v Commissioner of Police [2020] NSWCATAD 297
McDonald v Director General of Social Security (1984) 1FCR 353
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
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137
Ros v Commissioner of Police, NSW Police Force [2019] NSWCATAD 235

Shi v Migration Agents Registration Authority [2008] HCA 31.
Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Shane Leatham (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Applicant (Self-Represente)
Office of General Counsel (Respondent)

File Number(s):

2021/00011299

Publication restriction:

Nil

REASONS FOR DECISION

1. On 8 March 2020 , the Applicant, Shane Leatham applied for a firearms (pistol) licence. On 19 October 2020 his application was refused, and that decision was affirmed on internal review. The Applicant now seeks review by this Tribunal.

Relevant Legislation

2. The general principles and objects of the Firearms Act 1996 (the Act) are set out in s 3 of the Act, relevantly as follows:

3   Principles and objects of Act

1. The underlying principles of this Act are:

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

   (b)   to improve public safety:

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

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

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

2. The objects of this Act are as follows:

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

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

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

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

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

   (f)   ...

   3. Section 11 of the Act relevantly provides:

11 General restrictions on issue of licences

…

1. 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

   …

2. 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.

   …

3. 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.

Role of the Tribunal

4. Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]- [34]. Under s 28(2) of Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. It is well established that in considering 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: Shiv Migration Agents Registration Authority [2008] HCA 31.

Evidence

5. In support of his Application for Review the Applicant filed a statutory declaration dated 8 March 2021, gave evidence, and was cross examined. He also provided a statutory declaration dated 8 March 2021 by Leisa Maree Mace, his former partner (and mother of his child). She also provided a character reference dated 3 March 2021. Ms Mace was cross examined, as were Pamela Whitty and Amber O’Connor who had provided references dated 4 and 6 March 2021, respectively. The Applicant also provided a statutory declaration by his mother, Jennifer Leatham dated 3 March 2021 and a reference dated 3 February 2021. Mrs Leatham, the Applicant advised, was ill, and was therefore unavailable for cross-examination. Their evidence is discussed below.

6. The Respondent provided documents under the s 58 of the ADR Act. These included a Medical Certificate dated 2 November 2020 by the Applicant’s General Practitioner, Dr Abhijit Ray. Dr Ray wrote:

Mr Shane Leatham has been a patient of mine since November 2018. He has a background of anxiety and depression over several years.

He consults with me at least once a month regarding his health. I am pleased to report a significant improvement in his mental health during this time and at present I have no major concerns regarding his mental health or his compliance with treatment.

He has been reviewed by a psychiatrist several years ago who felt that his mental health was largely attributable to his alcohol consumption. Shane successfully underwent alcohol detoxification in October 2019 and as far as I am aware he has remained abstinent from alcohol.

7. The Respondent’s solicitor specifically stated at the hearing that he had not requested Dr Ray to be made available for cross-examination, because the meaning of the medical certificate was clear.

CONSIDERATION

8. Before me, the Respondent submitted that the Applicant is not a fit and proper person to hold a firearms licence, and relied, in particular, on s 11(4)(b) and (c) of the Act. It was also submitted that it was not in the public interest that the Applicant be granted a firearms licence: s 11(7) of the Act.

9. The Respondent’s objection to the Applicant holding a firearms licence relied on 5 contentions, each of which is addressed below.

Incorrect response to licence application about treatment

10. In his licence application dated 8 March 2020 the Applicant answered “No” to the following question:

Have you in NSW or elsewhere:

…

d)   Ever attempted suicide or self-harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness.

11. The Respondent submitted that the Applicant’s "No" response was false and misleading, and, in fact, was an offence under s 70 of the Act. It was submitted that the Applicant’s lack of candour casts doubt upon his other statements in support of his application for review.

12. The Applicant admitted that the declaration was wrong. He said, however, that he had no intention of being dishonest in completing the form. He explained that he understood that “referred” meant “referred by the court”; whereas he had taken the step to undergo alcohol detoxification in October 2019 himself. Further, when he had discussed with Dr Ray his desire to undergo detox, the doctor had supplied him with some options, but did not “refer” him to the clinic.

13. He said he was fortunate to obtain a vacancy at the clinic almost immediately, because he was seeking to admit himself “off his own bat” compared to “the 95%” of patients who are court-referred. As to what was entailed in the program, he said he was triaged, searched for contraband and segregated. He was invited to “stay until [he] felt right”. Medical staff would attend on him to take blood, and test his blood pressure, because the effect of alcohol withdrawal “can kill you”, he said. As to whether he was actually an alcoholic at that time, he said that he was “on the way” and would drink 12-30 standard drinks a day.

14. The Applicant admitted that the declaration was wrong but I accept his explanation that he understood that “referred” meant “referred by the court”, and had not applied to him because he had undertaken alcohol detoxification of his own accord. I accept that the Applicant answered the question honestly insofar as it related to whether he had been referred for his alcoholism.

15. In relation to whether he had been “treated”, the Applicant said that he has seen a psychiatrist once only – in February or April 2012 - to “rectify what was going wrong in [his] life”. He said he was told to come back if he needed to, but he never did. Before that, in connection with his workers compensation claim, he had seen a counsellor in relation to issues associated with his workplace injury.

16. The Respondent submitted that Dr Ray’s report makes it clear that, as at the date of making the declaration in his licence application, the Applicant had, since November 2018, been attending Dr Ray on a monthly basis for treatment of mental health issues. The Applicant said in his evidence that he does not see Dr Ray for mental health issues at all; he attends the doctor monthly in order to obtain pain medication for his work-related peripheral neuropathy.

17. I do not accept the Respondent’s submission that Dr Ray’s report “makes it clear” that the Applicant had, since November 2018, been attending Dr Ray on a monthly basis for treatment of mental health issues only, as the doctor reported “regarding his health”. This is consistent with the Applicant’s account.

18. However, even if I accept that the Applicant may only see Dr Ray monthly in order to obtain pain medication, it remains that in undergoing detox, he was “treated” for a mental health condition, namely alcoholism, in October 2019, that is, within 12 months of the date of application. He had provided a declaration in his application for the firearms licence acknowledging that he was aware that it is a serious offence to make a statement in the application that is false and misleading, and certified that the information was true and correct in every detail. That was prima facie a contravention of s 70 of the Act. In Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240 the Tribunal held, at [26], that “the system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act”. One of the objectives of the Act is the functioning of a proper system of firearms licensing, which necessarily depends on applicants providing true and correct information in a comprehensible manner. In Kogias v Commissioner of Police [2020] NSWCATAD 297 the Applicant, an experienced legal practitioner, failed to disclose that he had previously had his licence revoked. The applicant in that matter said that his incorrect statements in the application were errors and were not intentional, but the Tribunal took the view that the applicant knew the form he had completed was incorrect. Similarly, in Hunt v Commissioner of Police [2021] NCATAD 58 the Tribunal found the applicant was aware that he had incorrectly completed the form in relation to a suicide attempt within the preceding 10 years. It remains, though, that the Applicant did not disclose that he had been “treated” in the 12 months preceding his application.

Mental Health Issues

Incident of 28 September 2010

19. The Respondent relied on the Applicant having been taken by Police to hospital pursuant to s 22 of the Mental Health Act2007 (MH Act) on 28 September 2010.

20. According to the COPS Event report of the incident Police received a phone call from the Applicant’s mother stating the Applicant had said that “she will get a knock on the door tonight informing her that [the Applicant] had committed suicide”. The Applicant denied that this had happened. He said he had an argument with his mother, and he had said that she wouldn’t be satisfied until she gets a knock on the door saying he had committed suicide. He denied ever saying he intended to commit suicide. Furthermore, he added, his mother never called the Police, which was confirmed in his mother’s statutory declaration.

21. According to the COPS Event report Police attended and spoke with the Applicant who told them that he would probably hurt himself sooner or later. The Applicant reportedly had spoken with his boss earlier about the way he felt. I observe that the “informant” recorded in the COPS Event is apparently a person from the Applicant’s workplace. The Applicant denied he had ever stated that he would probably hurt himself sooner or later. He said he was asked by the officer if he was going to harm himself, and he had replied, to the effect “no more then you did when you woke up this morning”. He described that the officer had pushed him back against the wall, and saying that he was detaining him under the MH Act. Following a verbal exchange, the Applicant ultimately complied with the officers' requests. The Applicant considered Police were taking him to the hospital, irrespective of anything he said. When the Applicant was taken to the hospital and in the care of the mental health team, the COPS event records that Police returned to normal duties. The Applicant said though that Police were requested to leave by the doctor as one of the officers was antagonising the situation and attempting to provoke the Applicant.

22. Police recorded that they spoke by phone with the Applicant’s boss, Paul Evans who was said to have noticed “worrying signs” about the Applicant; reportedly that the Applicant had made a number of comments about wishing to shoot his mother and kill his whole family. Mr Evans had been increasingly worried about the Applicant for the previous week, so was glad something was being done to help the Applicant. The Applicant said though that the comment about shooting his family was made whilst being “barraged” by Paul and the store services manager, Leonie, and that he had said, “What you need to understand is I can express my frustrations with [my family] and can say what I like”. He explained in his evidence that he regards his family as a “typically dysfunctional (sic) family” and while he has the right to say he wants to shoot them, he would defend them to the death against anybody else. The only thing he said to his boss was “I'm over having to accept everyone's bullshit and not being allowed to defend myself, nothing I do is good enough, and I'm over it.” The Respondent submitted that for the Applicant to say his family is dysfunctional trivialises the threat he made.

23. I asked Ms Mace about her observations of the Applicant with his family. She said that the Applicant has no relationship at all with his sister and is “not close” to his brother. He had a good relationship with his parents but it “had its moments”, after which they would get together like nothing happened. She said that there had been times when the relationship with the family could be described as “toxic”, and that had increased since his father’s death.

24. The incident, the Applicant wrote, was exacerbated by his employer looking to terminate him due to his ongoing workers compensation claim. He claimed that the store’s budget was being affected by having the Applicant’s ongoing claim. He said they “played on my emotions utilising my father’s ill-health and the relationship he was in at the time to barrage him with comments such as, that he was a bad son, and that his parents were ashamed of him.

25. In her statutory declaration of 16 December 2020 the Applicant’s mother wrote that following an altercation over the phone with the Applicant, she had been telephoned by Ms Hanley from the Applicant’s work. She understood the conversation would be in confidence and she was “pretty ticked off” with her son and she “had a rant”. Following that conversation, someone on behalf of the Applicant’s employer phoned the Police.

26. The Mental Health Transfer/Discharge Summary records that the Applicant "Sees a psychiatrist for a work-related injury." The Applicant said this was an error and he did not say that. The Applicant said that he had seen a seen a counsellor 3 times in relation to issues associated with his workplace injury; he did not know if the person was a psychiatrist, but the hospital had assumed that he/she was.

27. The principal diagnosis was “situational stress”, and, importantly, he was assessed as having a low risk of suicide and violence.

28. The Respondent submitted that it would have been negligent of Police not to have taken the Applicant to hospital in view of his threats. I agree that this was a proper course for the Police to adopt. Further, the intervention of the Applicant’s employer was consistent with concerns for the Applicant’s welfare.

Incident of 21 March 2011

29. The Respondent also relied on the Applicant having been taken by Police to hospital pursuant to s 22 of the MH Act on 21 March 2011. The COPS Event report records that Police attended the Applicant’s parents’ home where Ms Mace was said to have shown them a number of picture messages showing the Applicant with a noose around his neck and texts threatening to harm himself. Ms Mace wrote in her statutory declaration of 8 March 2021 that at no time did she show Police a picture of the Applicant with a noose around his neck. The photo she received from him which she showed to Police was what appeared to be an extension lead that was draped over the top of the pantry door.

30. In her evidence Ms Mace said that the Applicant’s brother had told her about a text of the Applicant with a noose around his neck. She contacted the Applicant who sent her the photo of the extension cord. She never saw any text of the Applicant with a noose around his neck. As to the significance of the cord she said it might have been something of the Applicant’s father’s. She said she went to the family home to see if she could resolve the situation, but the Applicant just wanted to be left alone, especially by his brother. She said when the Police came she did not show them a photo of the Applicant with a noose around his neck, because there was none. She also did not have any text from him threatening harm. She reiterated that she had not called the Police, and the COPS Event report does not indicate by whom they were called.

29. The Applicant was located wandering the streets and he was reluctantly taken to hospital. In her statutory declaration the Applicant’s mother wrote that, although she was not present at the time, she understood there was an incident between her two sons, in which the Applicant had said he wanted to be left alone.

30. In his evidence the Applicant described the incident as a “play of power” by his brother, with whom he has clearly been on poor terms. The Applicant said he went to his family home for some downtime after finding his girlfriend of the time in bed with somebody else; he knew the house was vacant as his parents had just left on a cruise. It is unclear how, but his brother became aware that he was there, was upset, and that he wanted to be left alone. His brother refused to accept that response and demanded that the Applicant tell him immediately what was wrong or he was going to call the Police and “use his position [as a corrections officer]” to “have me arrested for mental health”. The Applicant’s brother and Police searched the streets in an endeavour to locate him. An alternative interpretation of what occurred, the Respondent said, was that the Applicant’s brother was merely concerned for his welfare.

31. The Respondent submitted that I should find that the Applicant had a noose around his neck and that this was the “device of convenience” at the time. In the absence of the photographic evidence and the denial of the Applicant and the evidence of Ms Mace, I cannot be satisfied that the Applicant in fact had a noose around his neck, although the COPS report would tend to suggest otherwise. Attending Police were not called to give evidence, which may have addressed the inconsistencies in the accounts of what occurred. In any event, I consider the evidence is of some bravado and not a genuine attempt on his own life.

32. The Mental Health Transfer/Discharge Summary of 21 March 2011 referred to "Principal Diagnosis: ADD, with an Additional Diagnosis of Adjustment Disorder”. Again he was assessed as being at low risk of suicide or violence.

33. The Applicant said he complied with requests by authority, and had made no threats to himself or to anybody else. He conceded he had made a comment of "I wish I was dead" but denied he said he was going to kill himself.

34. The Applicant said that at the time of these incidents he was trying to deal with a workplace injury and rehabilitation, being in an abusive relationship, the crumbling of his career, the diagnosis of his father with terminal cancer, and attempting to learn being a father himself.

35. The Applicant submitted that both these incidents are now over 10 years ago. Since that time, he said, he has grown and developed as an individual and as a member of the community. He described himself as a responsible parent to his daughter, and said he has returned to study and recently completed Certificate IV in Real Estate and Property.

36. I accept the Applicant’s observations that these events were now 10 years ago. The evidence that the Applicant has, since that time not come to attention, and therefore I attach less weight to these issues.

History of alcohol misuse

39. The Respondent relied on Dr Ray’s report as evidencing the Applicant's previous alcohol misuse. The doctor wrote:

Mr Shane Leatham has been a patient of mine since November 2018. He has a background of anxiety and depression over several years. …

He has been reviewed by a psychiatrist several years ago who felt that his mental health was largely attributable to his alcohol consumption.

40. The Applicant said he had commenced drinking at age 18 and when he worked in the security industry, after work, everyone would have drinks. When he did night work he would drink after work.

41. In his evidence the Applicant candidly said that prior to his detox in 2019 he was drinking 12-30 standard drinks a day, and had been drinking at that rate for about 5 years. He acknowledged that before that time – in 2003 he had a low range drink/drive offence and, in 2012 a midrange offence. Both these offences pre-dated the alleged onset of the Applicant’s alcohol problems.

42. Ms Mace said in her evidence that the Applicant was “at his lowest” when his father, “his best friend”, died about 7 years ago, in about 2014. He “hit the bottle hard” as a coping mechanism, she said. His alcohol use was excessive, but not out of control. She thought it was only for a couple of years that he continued to abuse alcohol badly, until he realised he needed to take control of himself because of his daughter who was born in 2011.

43. The Applicant observed that he has given up alcohol and has remained sober for, now, some 19 months; he does not drink alcohol at all. He said that giving up alcohol was a “significant point in my life”.

44. In her statutory declaration of 3 March 2021, the Applicant’s mother wrote that it was her “proudest decision (sic)” that the Applicant had given up alcohol.

45. In her reference of 4 March 2021 Pamela Whitty wrote that in the last 2 years the Applicant had acknowledged that he had a problem with alcohol and had wanted help to quit drinking. In her evidence, Ms Whitty spoke of the Applicant’s “highs and lows”, including drinking alcohol to excess from his 20s. She said she had “seen him drunk, but not a lot, but he was always responsible”. She was aware of some drink/driving charges. She thought he may have used cannabis “ages ago”. It was unclear if she was aware he had been detained under the MH Act. She was aware he had taken it upon himself to undergo rehabilitation; she knew from personal experience how difficult that can be. She understands him to have been sober for about 18 months. As to threats that he would kill himself, she said it was probably when he was affected by alcohol. If he had sent photos of himself with a noose around his neck, he was “crying out for help”. She said she would now trust him with her life and that of her family.

46. The Respondent submitted that it is still early days since the Applicant’s detox and that I would need more compelling evidence that his reform is permanent. In  AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 (AML) at [23], where the decision was set aside, the Tribunal held that while both effective treatment and a lengthy period of stability are relevant, they are not mandatory. In that matter, unlike here, there had been an actual suicide attempt.

Drug Use

47. In support of his internal review application the Applicant wrote that, he acknowledged that, at the time of the two hospitalisations, he had an addiction to the pain medication he was using for his workplace injury. In his evidence he said he injured his knee in May 2009, had surgery in March 2010, and was addicted to the pain medication from March to June or July 2010.

48. When the Applicant was hospitalised on 28 September 2010 he was recorded as having used high levels of alcohol and cannabis. The Mental Health Transfer/Discharge Summary of 28 September 2010 recorded that:

[alcohol] + [cannabis] use social, uses more when under stress

49. The Applicant gave evidence that nowadays he only takes medication for high blood pressure and his peripheral neuropathy and for insomnia.

Threats of self-harm and killing family members - idealised by shooting

50. The Police report dated 28 September 2010 recorded that the Applicant had indicated to his mother that she would get a knock on the door that night informing her that he had committed suicide; he told Police that he would probably hurt himself sooner than later; and the Applicant's boss told Police that the Applicant had made a number of comments about wishing to shoot his mother and kill his whole family.

51. The Respondent submitted that it is particularly concerning that the Applicant has previously harboured thoughts of killing his family by means of shooting. I do not accept that the remarks were expression of a real intention to harm himself or his family.

52. The Respondent submitted that although the Applicant has sought to take issue aspects of the COPS Reports, it is significant that he did not dispute the idealisation of the use of a firearm as being the means by which he would inflict harm upon others. The Applicant stated in his submissions:

The comment about shooting my family was made whilst being barraged by Paul and Leonie's about, and I said, What you need to understand is I can express my frustrations with them and I can say what I like if I want to say I want to shoot them all I can but god help anyone else that says it, that's my family that's my right no one else's."(emphasis added)

53. I do not agree that this amounts to an assertion that he would use a firearm in a dispute with his family, particularly in light of his evidence associated with his “dysfunctional” family.

Is the Applicant a “fit and proper person” to hold a firearms licence?

54. Section 11(3)(a) of the Act states that "a licence must not be issued unless the Commissioner (and hence the Tribunal on review) is satisfied that an 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". In particular, a licence must not be issued if there is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the Applicant's way of living or domestic circumstances, or any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or the applicant's intemperate habits or being of unsound mind.

55. The Respondent submitted that s 11(4) of the Act shows the emphasis that has been placed in considering what constitutes a "fit and proper person". In plain terms, where a person's sense of judgment, responsibility and self-control can be compromised or impaired by mental health issues, the excessive consumption of alcohol or the use of drugs, the public's safety is put at risk; public safety is a pillar of the Act.

56. The Respondent submitted that as the Applicant has current diagnoses of anxiety and depression, compounded by a long history of excessive alcohol use which, as recently as October 2019, required an alcohol detoxification intervention, the prudent course would be not to grant the Applicant access to a firearm in the absence of clear, unambiguous and authoritative evidence that he is no longer afflicted by the conditions. It was submitted, such evidence is not available to the Tribunal. The Respondent relied on Dr Ray’s report that the Applicant “has a background of anxiety and depression over several years”. That does not amount to a current diagnosis, especially given that Dr Ray is a General Practitioner, and not a psychiatrist. To me Dr Ray’s report is, at best, equivocal as to whether the Applicant continues to suffer these conditions, and on what clinical observations the doctor bases his view.

57. The Respondent did not assert that the Applicant is not a “decent person”, although, it was submitted, the incorrect completion of the 2020 licence application does not advance his cause or promote confidence in him. I have indicated above why I have accepted the Applicant’s explanation of his completion of the form, and that he omitted to record that he had been treated in the last 12 months.

58. In time, the Respondent submitted, the Applicant may be able to be entrusted with a firearm, but until there is adequate evidence available to establish that he has recovered from the conditions that presently afflict him and that he has established an enduring break in the cycle of alcohol abuse, the Respondent submitted that the Tribunal should affirm the decision under review.

59. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Mason CJ explained, at 380, that:

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.

60. Toohey and Gaudron JJ said at 380:

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.

61. In Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that when considering if an applicant is a fit and proper person, their conduct should be considered and whether that conduct is such that the Applicant can be trusted to have possession of firearms without presenting a danger to the public safety or peace.

62. Ms O’Connor gave compelling evidence about the Applicant’s “360 degree” turnaround. She said she has known the Applicant for over 20 years and knew that he had been unwell with “a bit of depression and anxiety”, “many years ago”. She was aware of his drink/driving charges. She was aware of his hospitalisations in 2010 and 2011. She understood his brother “had something to do with it”. She said that the Applicant could be “a bit of a smart arse” and “won’t hold back”, and that what he had said that led to his hospitalisation, did not mean he meant to hurt anyone, including himself. His tendency to be a “smart arse” may explain some of the responses he reportedly provided to Police in 2010 and 2011.

63. Ms O’Connor did not know if he used illegal drugs, or if he had overused prescription drugs. She did know he had had a drinking problem and that he may have used cannabis 6-8 years ago. During that time, she said, she would not leave her kids with him. Now she describes him as the “safest hands imaginable”, and she has no hesitation leaving her kids with him, and they regard him as an uncle.

64. She also made observations that he has bettered himself and has a goal of a better life for his child. She observed he had come a long way.

65. A person's fitness is to be considered in the light of the activities that the person will undertake: see In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 at 156-7, Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280, at 290, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794, at [41]. I accept though that there may have been some volatility in the Applicant in the past, with a history of discord with his family and under pressure in the workplace, he over-reacted and made threats which were construed as violent towards his family and of self-harm. The information about his conduct however does not lead me to a view that the Applicant would use a firearm if provoked. Further, there was no evidence that the Applicant had made any previous attempt to commit suicide or cause a self-inflicted injury: s 11(4)((b) of the Act. Similarly, there was no evidence of the Applicant's intemperate habits or being of unsound mind: s 11(4)(c) of the Act.

66. I therefore find that the applicant is a fit and proper person to be issued with a firearms licence.

Public interest

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

68. I accept the Applicant’s evidence that he has had an interest in shooting for many years, and that, with his reduced mobility due to his work-related peripheral neuropathy he thought pistol shooting is an activity that he can physically undertake. He had not previously thought he was sufficiently responsible to apply, and this may demonstrate some self-awareness. Private interests, however, are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an 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]. The concept includes 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] VicRp 6; (1991) 1 VR 63. Accordingly, the Applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest. As observed by the Tribunal in Aubrey v Commissioner of Police [2005] NSWADT 266 at [21] "where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm".

69. 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. Although Ward was also a case on the “fit and proper person” test, I observe though that the principle in Ward has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. 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, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66].

70. The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum: see also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 (AML) at [7].

71. The Tribunal in Ros v Commissioner of Police, NSW Police Force [2019] NSWCATAD 235 affirmed the decision refusing a licence, because the Applicant had violent tendencies. Here there is no evidence that the Applicant has such tendencies, although, in the past, he may have engaged in hyperbole in the course of venting his frustration with issues that affected him from time to time.

67. In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that “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”. Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74].

68. Further, the Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. When considering future risk, the Tribunal must consider the past conductof the Applicant as a significant guide: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]. There was no evidence that the Applicant has at any time taken any steps at any time to engage in self-harm. I am satisfied that the events of the past, at most, were not even a "veiled threat” of suicide, but was more likely a cri de coeur in relation to his frustration with the workers compensation system and I am satisfied that he did not intend to engage in self-harm. In any event, I observe that that occurred about 10 years ago, and there has been no repetition of such conduct and I accept that the Applicant’s evidence that his workers compensation management is now much improved and he acknowledges that the process must take its course.

69. In the absence of a recent evaluation by a psychiatrist, the 2010 and 2011 incidents and the diagnoses made, albeit on the basis of a brief attendance at hospital, were still matters of concern. The Applicant repeatedly stressed the absence of any mental health problems or other adverse indications in the 10 years since these diagnoses and, as was noted above, he said since that time had developed greater resilience in coping with life’s problems and that the outlook for him was positive.

70. In Kavanagh v Commissioner of Police [2020] NSWCATAD 324, to which the Respondent referred, there was evidence of a history of psychiatric treatment dating back several years in relation to depression, anxiety and alcohol problems, in-patient hospital treatment for those symptoms, an ambivalent assessment by one psychiatrist and an evaluation by another psychiatrist of a low risk but with a diagnosis of generalized anxiety disorder and alcohol use disorder, which was disputed by the applicant. The Tribunal, unsurprisingly, found in that matter that in the absence of a recent, comprehensive psychiatric evaluation, with particular attention to alcohol use and factors influencing it and reaching an acceptable conclusion as regards risk, the current state of the evidence did not permit a clear assessment of risk other than to say that the applicant’s history presents an appreciable risk to public safety.

71. Notwithstanding the absence of a recent assessment by a psychiatrist, the evidence as a whole, including the absence of any observed psychiatric problems for the last 10 years, leads to the conclusion that the Applicant’s current mental state does not present a “real and appreciable risk” to public safety, as understood in Webb. I also accept that he has dramatically changed his conduct in relation to alcohol consumption. I accept the evidence that he is a responsible parent to his daughter, and that he has recently completed a course which may lead to a career in real estate.

Conclusion

77. In summary, while the Tribunal can never be completely satisfied that there is no risk in the Applicant having a firearms licence, in the circumstances I am satisfied that the risk is not sufficiently high that it should prevent the Applicant from holding the licence. On balance, I do not think the evidence warrants a finding that it would be contrary to the public interest for the Applicant to hold a firearms licence, and I so find.

78. For the reasons outlined above, the correct and preferable decision is to set aside the decision of the Respondent to refuse the Applicant's application for a firearms licence.

DECISION

79. The decision under review is set aside.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 May 2021