Macdonald v Commissioner of Police, New South Wales Police Force

[2017] NSWCATAD 199

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Macdonald v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 199
Hearing dates:	18 November 2016, 16 March 2017 and 19 April 2017
Date of orders:	21 June 2017
Decision date:	21 June 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1)   The decision to revoke the Applicant’s Category A Firearms Licence is set aside.
Catchwords:	FIREARMS – Fit and proper – cancellation of licence – alleged conduct – Psychological state of applicant– evidence – objects of legislation – public interest – reinstatement.
Legislation Cited:	Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Jones v Dunkel (1959) 101 CLR 298 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 (1979) 46 FLR 409 Constantin v Commissioner of Police [2013] NSWADTAP 16 Comalco Akuminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 Constantin v Commissioner of Police [2012] NSWADT 172 Pobjie v Commissioner for Fair Trading [2008] NSWADT 39 Sobey v Commercial and Private Agents Board 20 SASR 70 Petas v Commissioner of Police NSW Police Force [2013] NSWADT 137 Martin v Commissioner of Police NSW Police Force [2010] NSWADT 276
Texts Cited:	DSM IV DSM V
Category:	Principal judgment
Parties:	John Macdonald (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: In Person (Applicant) Sparke Helmore Lawyers (Respondent)
File Number(s):	2016/00378269
Publication restriction:	Nil

Reasons for decision

1. On 18 February 2016 the Commissioner of Police revoked the applicant’s Category A Firearms Licence. This revocation followed an assessment of the applicant’s suitability to hold a firearms licence, following the review of information recorded by NSW Police following an interaction with the applicant in September 2015.

2. In summary the respondent’s delegate appeared to make a finding that the applicant was mentally ill at the time, after noting information that the applicant had previously been diagnosed with Bi-Polar II disorder in 2008. The delegate also formed a view that due to the applicant’s stated views any attending police might be at risk due to the applicant’s possession of firearms. As a result the delegate formed the opinion that the applicant’s … ‘actions are not those of a person in whom the public would have confidence in the knowledge that you have unfettered access to firearms’. The applicant’s firearms licence was revoked.

3. In an internal review dated 29 July 2016 the respondent’s delegate affirmed the original decision to revoke the applicant’s Category A firearms licence.

4. In revoking the licence, the Commissioner decided that it was not in the public interest for the applicant to hold a firearms licence. The basis of this decision appeared to be based on an adverse assessment of the applicant’s behaviour in 2015 coupled with a consideration of material provided by the applicant concerning prior matters going back approximately 10 years. Upon administrative review it was necessary for the Tribunal to review the alleged conduct central to the respondent’s finding, and having completed that task, review the matter in light of the conduct / evidentiary findings.

5. Whilst the Commissioner’s delegate was of the view that it was not in the public interest for the applicant to hold a firearms licence, the Tribunal finds, for the reasons set out below, that such a finding cannot be supported by the available evidence.

Background

6. The applicant has held a firearms licence since approximately 1994. During that period he has never been charged or convicted of any breaches of the relevant provisions relating to the possession, storage, handling and use of firearms. In addition he has never been convicted of any criminal offences before a Court in New South Wales or Australia.

7. Notwithstanding this uncontested background as a matter of record, the applicant being an apparent law abiding member of society, the Commissioner of Police identified some information about the applicant as a result of police contact in August and September 2015. Whilst that information of itself did not result in any breaches or other enforcement action by police, it did result in the applicant’s firearms licence being revoked and his registered firearms being seized by police. The licence was initially suspended by Police on 17 September 2015 when a Notice of Suspension was served on the applicant and his firearms seized / surrendered. On 18 February 2016 the suspension was replaced with a revocation whereby a Notice of Revocation was issued. The applicant applied for an internal review which was unsuccessful and on 29 July 2016 the respondent affirmed the findings in respect of the revocation of the applicant’s firearms licence.

8. On 11 August 2016 the applicant filed his application for administrative review with the Tribunal. The applicant’s position has consistently been that he is a fit and proper person to hold a firearms licence when one has regard to his personal circumstances and his unblemished history both in respect of firearms matters and general law abiding behaviour.

Jurisdiction

9. The Notice of Suspension was issued under the provisions of the Firearms Act sections 22 (re: licences) and 30 (which concern permits). Relevantly section 22 provides:

22 Suspension of licence

(cf APMC 6, 1989 Act s 35)

(1) The Commissioner may, if the Commissioner is satisfied there may be grounds for revoking a licence, suspend the licence by serving personally or by post on the licensee a notice:

(a) stating that the licence is suspended and the reasons for suspending it, and

(b) requesting that the person provide the Commissioner with reasons why the licence should not be revoked.

(1A) If a licence is being suspended because the Commissioner is satisfied that there may be grounds for revoking the licence under section 11 (5A), the notice suspending the licence is not required:

(a) to state the reasons for the suspension, or

(b) to include any request that the licensee provide the Commissioner with reasons why the licence should not be revoked.

(2) The Commissioner must suspend a licence in accordance with this section if the Commissioner is aware that the licensee has been charged with a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 or the Commissioner has reasonable cause to believe that the licensee has committed or has threatened to commit a domestic violence offence within the meaning of that Act.

(3) A suspended licence does not authorise the possession or use of firearms during the period specified in the notice suspending it.

The Commissioner’s Review

10. The suspension of a licence under the Firearms Act 1996 is a preliminary step to enable a licence holder to submit why the licence should not be revoked and therefore seek to have the suspension lifted. The applicant availed himself of the opportunity to provide material to the respondent within the time provided for in the Notice of Suspension. The decision stated the following relevant matters:

I have taken into consideration the fact that you have been authorised for firearms since 1995 and during that time you have not come to adverse attention of police. Additionally, I have given weight to the fact that you have an unblemished criminal record.

However in making my determination, weight has been given to reports by police of your erratic and unusual behaviour. I have afforded significant weight to the opinion of three separate police officers who believe that you could be suffering from some form of mental illness. Police opinion is strengthened by your disclosure that you suffered Bi Polar disorder. In your correspondence dated 2 October 2015, you confirmed information stating “I had been diagnosed Bi Polar II in 2008”.

11. The decision went on to document the concerns of the applicant about police behaviour at his property on 25 August 2015, and again on 10 September 2015. The respondent’s delegate formed the view that the applicant’s concerns and subsequent actions (as set out in his material to reinstate the licence) demonstrated that the applicant had ‘formed an irrational fear of police attending your property and causing you harm’.

12. The decision then refers to the legislative basis for revoking a firearms licence with reliance on section 24 (2) (d).

24 Revocation of licence

(cf APMC 6, 1989 Act s 36, 1990 Reg cl 27)

(1) …

(1A) …

(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

(b) if the licensee:

(i) supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, 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

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d) for any other reason prescribed by the regulations.

(Emphasis added)

13. Clause 19 of the Firearms regulation 2006 provides:

Firearms Regulation 2006

19 Revocation of licence—additional reasons

(cf 1997 cl 17)

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.

(Emphasis added)

14. The applicant exercised his right to Internal Review by way of a 16 page detailed request dated 15 March 2016. As the Tribunal determines the matter afresh in my view it is not necessary to detail all of the grounds put forth by the applicant, suffice to say that these were canvassed in his review before the Tribunal, and were replete with detail and fashioned in the manner of the applicant to which a lay observer might find somewhat pedantic. I make this non determinative observation as a pointer to both the dispute between the parties and a way into the thinking and response to material and evidence ventilated at hearing, as interpreted by the parties. I shall return to this observation later in these reasons.

15. The Commissioner’s second delegate (on review), reached the same conclusion as the first decision maker. The material findings of fact on that review are set out as follows:

• That you are 56 years of age and have no criminal convictions recorded against you;

• That you have been authorised to possess and use firearms for approximately 21 years without blemish;

• That your firearms safe-keeping facilities have been inspected on 22 August 2004 and 19 April 2013. On both occasions police record compliance with legislation;

• That police records of 25 August 2015, 10 and 11 September 2015 details police’s version of events that lead to the suspension and subsequent revocation of your firearms licence;

• That a police report dated 8 October 2015 outlines police concerns regarding your current perception of police and request review of your authority to be authorised to possess and use firearms;

• That you dispute what is recorded by police relating to the incidents of 25 August 2015 and *11 September 2015.

16. The decision goes on to acknowledge that the applicant disputes much of the content of the revocation notice in so far as it refers to the events of 25 August 2015 and 10 September 2015. (*The review refers to 11 September 2015 but that is the date (after midnight – when the COPS Events were created in respect of the early evening attendance on 10 September 2015).

17. The decision also refers to a reference by the applicant in his material relating to the review that:

• You were diagnosed with Bi-Polar in the year of 2008; and

• Due to your recent involvement with police, both you and your wife have been fearful for your safety from them i.e. On 10 September 2015 you wrote: “We had still been sleeping over at Neighbours on and off to keep anyone guessing who was wanting to harm us. I have never had such a paranoia in my life of feeling threatened. We contacted the local real estate agent to put our home on the market. We had also made plans of how to escape our home in case Police turned up and a contingency as to where we split up and ran for help also that the fire brigade were to be called if someone turned up as they would be there quickly and happy to assist.”

18. The review goes on to state the following at page 3 paragraph 3:

Firstly, with regard to your diagnosis of Bi-Polar, although you are of the view you do not suffer from it, had the Firearms Registry been privy to this diagnosis in 2008 your licence would most likely have been suspended at that time and further investigation would have been made to ensure your condition would not place public safety at risk. I advise that if any licence holder has a similar diagnosis, prior to reinstatement of their licence, it is a procedural requirement to determine the fitness of the individual to continue to possess and use firearms. In those instances a request is made for a medical assessment from their treating psychologist or psychiatrist specifically addressing questions pertaining to that person’s diagnosis and their ability to maintain continuous and responsible control over firearms (see last page).

(Emphasis added)

19. On the final page (4) of the Internal Review decision the delegate makes a finding that the applicant is not a fit and proper person to hold a firearms licence and affirms

..‘the revocation at this time. However, a different view may be reached if a reasonable passage of time passes without any further incidents and if you were to provide a written assessment from a registered psychologist who could provide their expert opinion that:

• your diagnosis of Bi Polar will not negatively impact on your ability to exercise continuous or responsible control over firearms;

• you have the current ability to form a rational judgment or to exercise will power to control physical acts in accordance with rational judgment;

• your current possession and use of firearms will cause no risk to public safety, and

• that the expert providing the opinion has been given a copy of this decision, your revocation decision to ensure they are aware of the incident which brought you to notice.

20. The applicant filed his application for Administrative review on 11 August 2016 having been notified of the Internal Review decision on 5 August 2016. The application is therefore filed within time. The summary of the grounds are set out at paragraph 8 (above).

21. The matter was heard over three sitting days, with the lay evidence being adduced on the first hearing date of 18 November 2016 at Wagga Wagga in New South Wales. On the other dates the applicant and expert witnesses appeared by telephone at the hearing in Sydney.

Respondent’s Evidence

22. The respondent’s section 58 material (under the Administrative decisions Review Act 1997) was filed on 27 September 2016 and marked as ‘Exhibit R-1’. That material comprised:

• Firearms history;

• 5 COPS Events spanning August 2004 – 11 September 2015;

• Notices of suspension and revocation and Police reports;

• 165 Pages of initial Internal Review submissions by applicant;

• Further detailed written submissions including photographs, images and maps and CD’s from the applicant;

• Internal Review Statement of Reasons dated 5 August 2016;

• 14 pages of post Internal review correspondence from the applicant.

Exhibit R – 2 Report from Dr N Jetnikoff Psychiatrist

The respondent also prepared written submissions dated 24 October 2016.

The Applicant’s Evidence

23. The applicant filed the following evince and material:

• Application for Review dated 7 August 2016 setting out grounds – ‘Exhibit A 1’

• 25 pages of material comprising correspondence / e-mails to and from the applicant – ‘Exhibit A 2’

• Medical report of Registered psychologist M Kruger-Davis dated 9 September 2016 – ‘Exhibit A 3’

• Statement of J Primrose dated 24 August 2016 – ‘Exhibit A 4’

• Material comprising folios 26-43 inclusive being medical information, photographs, statement of applicant, media clippings, NSW Ombudsman correspondence and statement of J Graham dated 2 November 2016 – ‘Exhibit A 5’

• Material obtained via NCAT GIPA Act review application comprising police radio dispatch call / job records (CAD) 10 September 2016 – ‘Exhibit A 6’

• Letter of referral re: Applicant from GP dated 11 December 2007 – ‘Exhibit A 7’

• Report dated 28 March 2008 from I.H. Synnott Psychiatrist - ‘Exhibit A 8’

In addition the applicant filed a detailed chronology / timeline – submissions dated 3 April 2017 on 5 April 2017.

24. The applicant gave evidence at the hearing and was subject to lengthy cross examination by the Respondent. The Tribunal also asked questions of the applicant. The applicant’s spouse also gave evidence at the hearing and was subject to cross examination by the respondent’s Solicitor. One police witness gave evidence at the hearing – Constable S Smith (one of the officers who attended on the evening of 10 September 2015).

25. It was proposed that the applicant call both attending officers to give evidence at the hearing. Summons were initially approved for issue against officers Smith and Roberts, (the attending Police officers on different days) in addition to Messrs Mclean and Donaldson from Essential Energy (who were performing work on the property of the applicant late on 10 September 2015). It was communicated that officer Beeche was on sick leave. There was some resistance to the summons in that one of the energy employees had concerns about his ability to attend in person on the hearing date, and in respect of one police officer the respondent maintained that they did not need to be called.

26. In the 10 days prior to the hearing the respondent was negotiating with the applicant concerning release of material to him in connection with his GIPA Act application. (See Exhibit ‘A 6’). Delays with that information coupled with witness objections caused the respondent to seek to have the hearing date vacated.

27. However ultimately the parties reached a compromise position in that I made orders at a Directions hearing on 10 November 2016. By consent of the party seeking to issue the summons (the applicant), all summons were withdrawn, the adjournment application of the respondent was refused, and leave was given for the respondent (by consent) to file further evidence within 14 days of the hearing date, and that such evidence would not be subject to cross examination.

28. I observe that the last order contemplated the hearing concluding after the first full day on 18 November 2016. In any event due to the withdrawal of the summons it was open to both parties to call any witnesses to assist their position. As outlined above the applicant called his spouse, and the respondent elected to only call Constable Smith.

The Hearing

Witness 1

29. The applicant represented himself at the hearing. In evidence in chief the applicant outlined how the current issues commenced when one of his goats was killed and eaten overnight in unknown but suspicious circumstances. He immediately contacted authorities. The applicant called Griffith Police where he was told that Narrandera Police would deal with the matter.

30. Police attended the following day and were (according to the applicant) ‘shocked and left without taking photographs’. The applicant gave evidence that he had since learned that the police compiled a report stating that the applicant had a ‘mental illness’.

31. Two weeks later electricity / power workers fixing a power line / mast requested the applicant call police because they were being menaced or stalked by one of the applicant’s alpacas. Two male Police attended but did not talk to the power workers. The applicant’s evidence was that on this attendance the Police chased him up his driveway and requested he empty his pockets. The applicant informed Police that during this altercation he ‘could not go on anymore’ and subsequently blacked out on his feet. The applicant’s evidence was that he received no medical assistance.

29. The applicant’s evidence was that two female officers attended the next day and handled his firearms dangerously when removing them. No receipt was issued. 10 days later the applicant received a letter (on the same day as the postmark) advising that his firearms licence had been cancelled due to mental illness.

30. The applicant gave evidence that he and his wife went and met with an Inspector based at Leeton to make a complaint. The Inspector advised the applicant that proper protocol was not followed in respect of the decision and the execution of the decision to remove the firearms. The applicant’s evidence was that the Inspector said he would speak to the officers involved if the applicant signed a waiver / withdrawal of his complaint. Then applicant and his wife refused this offer.

31. The applicant gave evidence that in responding to the revocation and related issues, he came to understand that certain police had formed the view that he would fire upon Police if they were to return to his property. The applicant gave evidence that in his view, in their dealings over the firearms issues his wife had been treated very badly (harshly) by Police.

32. During cross examination the applicant was taken to page 215 of the section 58 material (R 1) which was a ‘re-enactment’ photo showing the applicant with his hands on a bulbar of a 4WD vehicle facing east. Pages 216 and 217 were also referred to which show the applicant hailing the vehicle down and attempting to direct it into a driveway or in some other manner stop the vehicle.

33. The applicant’s evidence was that he did not speak to the driver but was shouting ‘back, back’. The applicant denied the suggestion that he was standing in the middle of the road. The applicant also denied standing in the ‘left hand lane’. His evidence was that after hailing the police vehicle down (after coming out to meet it) he then ‘trotted up the driveway’, at a pace ‘faster than a walk but slower than a jog’. The applicant’s evidence was that initially he was leading the way for the vehicle to follow.

34. The applicant stated that there was no direct communication with the police vehicle, as he had his back to it. At the time one electricity worker had finished and was pulling out. The applicant stated that initially sole exchange with police (because the electricity workers had finished) was ‘Thanks for that guys, you’re not needed now. I’m going in to have my dinner now.’

35. The respondent’s Solicitor suggested that this sounded like a fairly reasonable conversation with Police. The applicant agreed and stated that this ‘conversation’ occurred about 60 metres from the house. His evidence was that he then headed up the driveway immediately after that exchange, to the house to finish cooking dinner.

36. The applicant’s evidence was that the police vehicle kept following him. The applicant thought that they were wanting to find somewhere to turn around. However, the police sped up and as a result the applicant stared to run up the remainder of the driveway. Police had gotten out of the vehicle and one officer put their arm on the applicant and swung him around. The applicant gave evidence that this officer was Officer Beeche, who he recognised having previously been a customer for refrigerator repairs. The applicant recalled that the officer had paid by cheque and recalled the specific issuer of the cheque.

37. An exchange took place during evidence as to what was said between the applicant and officer Beeche. The applicant (M) allegedly said ‘you assaulted me’, the officer (B) said (according to the applicant) ‘you tried to get into the truck’. ‘Are you drunk?’ ‘Do you have a mental illness?’ ‘I am taking you to the hospital.’ (M) ‘You work for me.’ (B) ‘I don’t work for you.’ (M) ‘Yes you do, you work for NSW Police.’ (B) ‘Get to the truck.’

38. The applicant gave evidence that at this time Senior Constable Smith was standing next to the police vehicle on the passenger side. The applicant stated that his head was on the bonnet of the police vehicle from the side over the front guard.

39. The applicant’s evidence was that police asked him, ‘Do you have a knife?’ the applicant answered that he had a multi- tool and screw driver. The applicant’s evidence was that his hands were still behind his back when he was pushed against the bonnet and he was still. The applicant’s evidence was that because he could not see, he assumed that officer Beeche was holding him whilst S.C. Smith was going through his pockets.

40. The applicant stated that officer Beeche asked him why there was not a proper street number for the property out on the road. The applicant stated that he told officer Beeche that it ‘was a long story’. The police advised that they wanted to hear the story.

41. The applicant recounted that the issue relates back to 2009 when his then wife died at the property. He advised police that she died at home. Police asked why and the applicant said that he did not wish to go into it. An epileptic seizure was the medical issue, and the applicant waited 10 minutes for an ambulance because they could not locate the property. At another time his father in law had a heart attack on the toilet at the property and had died. The ambulance could not locate the address again. The property has an official address of ‘Lot 1’. This background is the reason that the applicant was out on the road waiving the police vehicle down.

42. A further somewhat ‘long winded’ explanation was provided at hearing, and in addition to the above matters, evidence was given about his current wife being hit by a ‘Doper Ram’. She was dragged around by the ram and injured. The ambulance was called. The applicant’s evidence was that they had been given a street number that the Council had installed on a sign / stick some 500 metres up the road. The applicant’s evidence was that whilst restrained / held by police he had told all of this to officer Beeche.

43. Following this exchange the applicant stated that he felt drained and said that he ‘can’t take it anymore’, and blacked out. His evidence was that ‘the lights went out’. He awoke to his wife ‘violently shaking him’. The applicant’s evidence was that he was lying on his back next to the police vehicle. In addition whilst on the ground he saw his screwdriver from his pocket on the ground.

44. The applicant’s evidence was that officer Beeche instructed him as follows after he came to: ‘You go in the house and don’t come back out’. In respect of the applicant’s wife officer Beeche allegedly said: ‘You stay here, I want to talk to you.’ At that time the applicant says that he picked up his screwdriver, put it in his pocket and went inside. When he went inside and turned the lights back on he noted from the kitchen clock that it was after 8:30pm.

45. After 10 minutes the applicant’s wife entered the house and said to the applicant that ‘they want your guns’. The applicant stated in evidence that he asked his wife if they gave her any paperwork to which she answered ‘no’.

46. The applicant was taken through some of the filed material by the respondent’s Solicitor. There was some agreement that the date and time recorded in the Cops event at pages 11 and 12 of the section 58 documents was wrong. (8:00pm – not 7:15pm) and (10/9/2015 not 11/9/2015).

47. At page 19 of the section 58 documents was part of the applicant’s most recent re-application for a Firearms Licence. Item F (d) was suggested by the respondent’s Solicitor to infer that the question was constructed to mean or infer ‘at any time’. E.g.

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

The Tribunal observes that in respect of mental disorders or illness the form refers only to the last twelve months, whereas certain behaviours- suicide or self-harm are prefaced with ‘ever’ which implies at any time.

51. The Tribunal was taken to the applicant’s statement to the Police Commissioner reproduced at pages 27-35 of the section 58 documents. It was suggested that the ‘complaint’ about police was not strictly part of these proceedings. However mention was made at hearing of the two references to attempts on the applicant’s life (as recorded at page 29 of the section 58 documents) when he was in Scotland prior to coming to Australia. The applicant stated that the term ‘murder with a motor vehicle’ in that context is Scottish Police jargon.

52. The applicant was questioned about counselling arising from incidents around October 2014 and referred to a Wagga Wagga counsellor. The applicant was asked how long Dr Romeo had been his G.P. to which the applicant advised from about 1994 until 2007. The applicant gave evidence that he has since seen other G.P.’s at the same Practice but not Dr Romeo.

53. The respondent’s Solicitor referred to Bi-Polar I and Bi-Polar II. Page 26 of Exhibit ‘A 5’ was referred to which contained a Treatment Recommendation sheet from the BDI Clinic (BDI - Black Dog Institute).When asked about his treatment the applicant gave evidence that he would complete at home 8 weeks of half an hour ‘modules’ on his computer with the BDI. These were self-assessment and educational type modules exploring whether there were any underlying issues and or treatment options. When asked if he gave the Treatment Recommendation sheet to his G.P. the applicant advised that he did not.

54. The respondent’s solicitor put to the applicant that page 26 of Exhibit A 5 amounts to a Bi-Polar diagnosis. The applicant denied that this was the case and refuted the proposition. In respect of pages 29, 30 and 31 of R 1 the applicant denied that the material demonstrated a real fear of police, rather he was merely trying to set out the unusual nature of the events and general police reactions to his ventilating concerns about the 10 September 2015 incident.

55. There was some examination about a fear of neighbours due to the mutilation of his goats, but the applicant believed that this was in part down to some sort of wild dog. The applicant’s explanation for many of the somewhat unusual events and views express by him and his wife, was that they were somewhat fearful as to what was going on, especially after the unusual police response to a simple request for assistance on 10 September 2015.

56. The applicant’s evidence was that he commenced writing the 2 October 2015 letter (pages 27 -35 f exhibit R 1) on 12 September 2015. Specifically the applicant’s evidence was that he no longer is in any way paranoid or feeling threatened by police. The applicant’s evidence was that this situation ceased 10 days after the incident of 10 September 2015 when his wife met with police advising about a complaint. All the applicant’s fears and concerns were based on responding to his wife feeling threatened by the events of 10 September 2015.

57. The applicant stated in his evidence matters consistent with what he had previously advised under the section 58 material (page 50 and 51 of Exhibit R -1). He admitted to being agitated due to having to ‘sprint as fast as he could 30 meters up a hill’. The applicant refuted that he was in any way intoxicated and referred to matters about having a beer after work but that as he may get called out to an urgent job he refrains from drinking anything but water after dinner. (This was consistent with his evidence at page 51 of the section 58 material).The applicant gave evidence that the time of the incident he was still on call, but only for advice on the telephone.

58. When questioned about the reference to being blacked out for 10 minutes (at the bottom of page 52 s -58 docs) the applicant stated that he obtained that information from what his wife told him.

59. The applicant drew the distinction in his evidence that it was said that he ‘suffers Bi–Polar’ contrasted with the understanding that he was once ‘diagnosed with Bi Polar’.

60. In respect of the Black Dog Institute under cross examination the applicant stated that he travelled to Sydney to see the staff in February or March 2008. The applicant’s evidence was that he went to see Dr Romero in November 2007 about getting an assessment done. There was 8 weeks of the monitoring mode then 8 weeks tutorial (the ½ hour per week on-line modules).

61. When taken to the 29 December 2015 statement at pages 72 to 156 inclusive of Exhibit R-1, the applicant was asked about but was recorded on page 87. (in respect of the exchange with Officer Beeche)

51. He questioned “Are you on drugs, are you drunk?”

I replied “No I’m not”.

He asked “Do you have a Mental Illness”.

I replied “I was diagnosed Bi polar 2 in 2008.

52. I did not have the opportunity to tell him it was not conclusive and that I had gone to see experts in Sydney to help me understand why I had energy to achieve many tasks at once and it only happened between July and March every year for the last 30 years. … No medication was offered nor required. ..

62. The applicant stated that this evidence (at 52) related to the physiological situation that he operates more effectively in summer with increased daylight than in winter. The applicant’s evidence was that this is what the matters at page 87 relate to, not any clinical statement of finding of Bi Polar.

63. The applicant was taken to paragraph 86 of the 29 December 2015 statement and asked about it.

86. I had asked my son Alastair to come around and sleep in the car on the driveway as we were terrified that the police may come back to get us again.

The applicant’s evidence was that his adult son only did this on one occasion, being the night following the incident (11 September 2015).

64. At page 283 of the section 58 documents (R – 1) the applicant was taken to Mr Kruger-Davis’s psychological report and specifically the expert’s observation that he ‘knew’ the applicant. The applicant advised that he only knew him in the community and that in earlier years his two sons might have gone to the Air League which Mr Kruger-Davis’s two sons attended.

65. The applicant gave evidence that he spent two and a half hours with Mr Kruger-Davis for the assessment. The applicant stated that at the time he had not raised or explored with Mr Kruger-Davis the distinction between being diagnosed, as opposed to thinking that he had been diagnosed with a condition.

Witness 2

66. The applicant’s wife gave evidence and in evidence in chief adopted her statement (which appears at pages 157 and 158 of Exhibit R 1).

67. The witness gave her own narrative of the incidents of 10 September 2015. Around 7 or 7:30 the power was taken out for the repairs to be effected. She does not do the cooking. There were three or four calls on the mobile, two neighbours ringing to ascertain why the power was off.

68. The applicant was preparing a meal for tea, and left the house straight after the last telephone conversation. Later when the power had been back on for 5-10 minutes the witness was wondering why the applicant had not come in to the house to continue preparing his tea. The witness went outside and saw the applicant being held on the police vehicle bonnet, and then saw the police ‘drop’ the applicant to the ground’.

69. The witness stated that officer Beeche then confronted her, came towards her even though initially she was about 15 metres away. The witness gave evidence that when she came out of the house she said (from about 15 metres away), ‘What the hell is going on?’ Her evidence was that officer Beeche then came up about 1 foot (30 cm) away. The witness was asked whether that officer asked her any questions, to which the witness answered: ‘No he just told me that my husband had been bashing him and that was why they were there.’

70. The witness said that the officer spoke to her in a raised and aggressive voice. The witness was asked how long the applicant lay on the ground not moving, to which the witness replied ‘5-10 minutes’.

71. When asked where Constable Smith was positioned the witness stated that he was on ‘the passenger side of the vehicle behind the mirror.’

72. Under cross examination the witness was asked what she said to officer Beeche when the applicant was on the ground. The witness gave evidence that she told him that she was just going to attend to her husband but that the officer had stopped her on two occasions. She then brought the applicant around at which time officer Beeche said to her husband (the applicant) to ‘Get into the house and don’t come out.’

73. The witness gave evidence that in her subsequent conversation with officer Beeche that he did not know who the applicant was, what he did for a living, and why police were even there.

74. The witness was asked whether the officer asked her any questions about firearms, to which she answered ‘no’. However the witness stated that the officer talked to her about firearms and he stated that he could take them. She talked to the officer for another 5 minutes and that the officer (whilst not knowing why they were called), stated that he was there because the applicant had called them out.

75. The witness was questioned about her relationship with the applicant. She gave evidence that she had known him since 2008/2009. She does not remember any Bi-Polar discussions but concedes that she may have had such discussions with him. The witness did remember the applicant telling her about the Black Dog Institute assessment.

76. The witness was asked about the position and the distance away of the police vehicle. The applicant stated that the police car was about 15 meters from the house gate when the applicant was being held. When asked about lights the witness said that there was just the moonlight, and that it was night time. She shook the applicant when he was on the ground as he wasn’t moving at all.

77. The witness gave evidence that her statement was made basically at the time (but typed possibly a few weeks after the event). When asked about references to an ‘escape plan’ the witness stated that ‘we had an escape plan because we did not know who to trust. My fear of police was based solely on the incident of 10 September 2016’.

78. The witness says that the police vehicle was a white vehicle. When asked again about lights (possibly from the vehicle) she stated that she didn’t recall the lights being on.

Witness 3

79. Constable S Smith gave evidence at the hearing in person. In evidence in chief he stated that he had been based at Narrandera for two years. The witness adopted the matters contained in page 11 of the section 58 (Exhibit R 1) documents.

80. The witness stated that he took part in one of the phone calls from the applicant concerning a dangerous alpaca and that it was a risk to the electricity line workers who were working on his property.

81. The witness was taken to the three ‘re-enactment’ photos at pages 215, 216 and 217 of R 1 concerning the approach of the police vehicle on the main road and the applicant’s position relative to it. The witness stated that there was moonlight but it was dark. They were travelling at 70-80kmph and the applicant was standing in the middle of the road with a small LED torch, ‘trying to wave the torch and get our attention’.

82. The witness stated that they pulled over before the driveway, and that they did not have to reverse back to the driveway. The police vehicle doors were all locked. The applicant tried to open the door. Then he ran around the front of the car and up the driveway. The applicant beckoned police to follow him. The power workers waved as they went by the police vehicle.

83. The witness’s evidence was that the applicant then said, ‘They have finished, it’s all OK now.’ The witness stated at this point in his evidence that Senior Constable Beeche ‘had a few ideas’.

84. The witness gave evidence that the house was about 20 meters away from the car. When asked if the engine was running or switched off when the vehicle stopped at the point, the witness couldn’t recall. The witness could however recall that the headlights were on, and when asked whether this was the case answered ‘yes’.

79. The witness stated that the applicant mentioned that he needed to go inside and get his tea, and that he said this on more than one occasion. The witness stated that he had ‘sort of come around the truck and back on the other side.’ The witness stated that ‘Mr MacDonald then stepped forward’.

80. The witness was asked whether the handle of the screw driver was pointing out? The witness answered that from memory it was the other side / end that was out. Officer Beeche held the applicant ‘up against the truck, the driver’s door’. The witness gave evidence that he put on the ‘needle proof’ latex gloves and located a Stanley knife and screwdriver on the applicant and secured those items in the truck. (Police vehicle).

81. The witness stated that the applicant ‘just collapsed on the ground’ and the witness spoke to him when on the ground. The witness gave evidence that he asked the applicant whether he was O.K. and whether he needed medical attention.

82. The witness noticed the wife coming down with a torch. The witness stated that ‘the lights of the car were illuminated and Beeche spoke to her.’ When asked what else the witness recalled, the witness stated that ‘he recalled bits and pieces.’ The witness recalled that the applicant had mentioned the Alpaca and that the applicant had tried to shoot it. The witness gave evidence that during this time the applicant was on the ground for about five minutes in the foetal position.

83. The witness stated that Mr and Mrs MacDonald walked back into the house together and that from memory they (police) returned the seized items – screwdriver / Stanley knife. The witness gave evidence when asked that officer Beeche made no mention that he had met the applicant prior to that evening.

84. In cross examination the witness said that he tried to have a conversation with the applicant when he (the applicant) was on the ground and ‘you didn’t talk to me’. When questioned about the call out the witness said that Griffith sent through a job on the CAD about an Alpaca. The witness does not recall the exact times, and that initially he called on the telephone from the Police Station.

85. The applicant asked the witness: ‘What instructions did I give you?’ The witness responded, ‘You were yelling at me about the Alpaca being a dangerous animal.’ The witness stated that at the property he could see, and that he never saw a person on the bonnet as the torch was lit. In respect of the conversation of office Beeche with the applicant and his wife, the witness stated that he heard ‘bits and pieces of the conversation.’

86. The witness stated that the applicant approached officer Beeche ‘in an aggressive manner’, and that he could ‘see items in your pocket’. The witness stated that whilst the arms were out in front of him the applicant’s fists were not clenched.

87. The Tribunal asked a number of questions of the witness. Many of the details were not established by the witnesses’ evidence. Matters such as what side door did the applicant allegedly attempt to open on the road, who was driving, when he was held up against the truck was the applicant facing towards or away from the officer, how far away was officer Beeche and Mrs MacDonald from you and the applicant on the ground, were explored. It appears that there was no dash / bumper / or vest cam record available concerning the incident.

Preliminary consideration

94. Having completed the non-expert evidence at the conclusion of day 1, the position in respect of the incident that ‘triggered’ the respondent’s decision to revoke the licence, remains somewhat unclear. The facts of what actually occurred are less than clear, in that the Tribunal has tested 3 versions of the evidence at hearing and has available entries made by the other officer, (Beeche).

95. In addition versions of events in written form have been supplied by all of these witnesses examined at hearing. Had the respondent facilitated either the availability or summonsing of Senior Constable Beeche, then the respondent’s position may have been clearer in respect of the incident. As that witness has not been provided then the Tribunal does not have the benefit of that witness, but neither does any party for which that witness’s evidence may have assisted in establishing a material fact.

96. This position however is not one whereby in my view an adverse inference along the lines of the rule in Jones v Dunkel (1959) 101 CLR 298 at 320 arises. The rule operates where there is an unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence. The rule arising from the case being that in appropriate circumstances, this may lead to an inference from the Court or Tribunal that the uncalled evidence would not have assisted the party. The Court or Tribunal is not bound to draw such an inference, and its application is therefore somewhat limited. Importantly, leading to my view about its general lack of applicability to the current matter, I note that the rule cannot be used to fill gaps in the evidence. In my view there are significant conflicts in the evidence however the applicant’s version of events (whilst not totally consistent on every detail) is in my view more consistent than the respondent’s evidence concerning the evening of 10 September 2015.

97. The Jones v Dunkel position also fades somewhat because the respondent appears to have based the main prong of their decision (and case), on a belief that a diagnosis existed and that ultimately a medical assessment is both appropriate and necessary.

Expert Evidence

98. On the second day of hearing Mr Kruger-Davis (Exhibit A 3) and Dr Jetnikoff (Exhibit R 2) gave evidence in the proceedings.

Mr Kruger-Davis

99. In evidence in chief the witness advised that he does not deal with the applicant socially. Other than walking past him in the street and one refrigeration job, prior to the assessment they had not otherwise met.

100. In 1988 he began performing both counselling services and assessments. The witness has 35 years’ experience writing Department of Education reports on both students and teachers. The witness indicated that the applicant had initially made an appointment with Dr Roger Blake but had cancelled due to the witness being local as opposed to a 200 kilometre round trip for Dr Blake. The witness was not aware whether Dr Blake did ‘firearms assessments’.

101. The witness was asked whether he has ever done a paper based assessment or would only conduct an assessment through seeing the subject. The witness advised that he has never done such a paper based assessment.

102. The witness was asked whether in his experience the entity (BDI) would write back to a referring medical practitioner and let them know the outcome (if any) of an assessment. The witness advised that such a situation would be expected and would demonstrate ‘best practice’.

103. In cross examination the witness was asked how long he met with the applicant on 15 August 2016 when he performed his assessment. The witness advised that he met for between 90 minutes to two hours and kept detailed notes. The appointment was for 1:00pm but the applicant was early so they commenced at 12:20pm.

104. The witness was asked about the assessment and advised that the ‘mental status examination’ is a snap shot of how a subject presents, their mood, delivery and what they discuss. The witness gave evidence as to which methodology he utilises (which clinical version) he applies for assessments.

105. The applicant was asked whether the following from his report (Exhibit A 3) the mental state examination:

Mr MacDonald presented at the interview dressed in clean neat work uniform. This was appropriate as the interview was held during work hours. He showed no sign of disregard for his appearance. He showed no signs of a thought disorder. He stated that he does not have hallucinations or hear voices that are not there. He did not appear delusional and had appropriate orientation in time, space and person. There was no derailment of thought or tangentially. His mood was appropriate, neither elated nor flat. His was prone to provide considerable detail and describe the back-story behind every incident. This did not concern me as I have known Mr MacDonald for several years and this is inconsistent with previous behaviour. He showed no signs of anxiety or mood disorder. Her [sic] mental status appeared normal.

The witness advised that this was only a summary.

106. The witness was taken to Exhibit A 7 (Dr Romero’s referral letter) and asked whether that referral caused the witness to need to contact Dr Romero? The witness advised that he had no concerns or need to contact Dr Romero mainly because the referral was 9 years ago and nothing had arisen in the interim.

107. The witness gave evidence that the applicant had asked Dr Romero for a referral to the Black Dog Institute. In the witnesses view, as they were a reputable institute then there would have been a more substantial report. The witness had asked the applicant to bring every relevant thing that he had to the assessment so that it could be considered.

108. When questioned again about his ‘relationship’ with the applicant, the witness stated that ‘the relationship is that I know of him and speak to him in passing. I have never socialised with him’. The witness stated that in his view, the fact that the applicant can run a busy seasonal business hold down a relationship, deal with the fairly recent loss of his former wife and manage other farming and domestic issues indicated a GAF (on the Global Assessment Functioning scale DSM IV) in the 90’s, which is near the top of the functioning range.

109. The witness conceded that those things were not recorded in the report, but stated that many things were not included. Whilst the assessment was broad ranging the purpose of the report was to assess his suitability to hold a firearms licence.

110. The witness was asked whether he used the G.A.F. in reaching his conclusions, to which he answered yes. He did not examine all five Axis leading to the G.A.F. due to there being no diagnosis by the Black Dog Institute. The witness went through the DSM V criteria (which replaced the DSM IV in recent years). The witness identified that the DSM V does not have axis and did not refer to the criteria in the report. The witness indicated that he went through the 29 July 2016 Police letter (the Internal Review Statement of Reasons). The witness said that the assessment and report addressed the matters raised in that document.

111. The witness recounted the evidence of one hyper-manic episode in 2007, and that there was no evidence of Bi-Polar. In the witnesses view, even if the applicant did have Bi-Polar in 2007/2008 he maintained safe custody of his firearms for 9 years without incident and also has a high GAF functioning rating after assessment.

112. The respondent’s Solicitor suggested that the report is a ‘character reference’ for Mr MacDonald rather than an assessment. The witness was taken to the final recommendation of Dr Jetnikoff (Exhibit R-2) concerning the applicant benefiting from a medical assessment and why the applicant had not sought one. The witness understood that police were going to refer him for an assessment at the time of the suspension and seizure but had not done so. The applicant told him that police were to take him for this assessment.

113. The witness understood that after the incident on 10 September 2015 the applicant still had firearms in his house, until such time as they were later seized by police officers.

114. The witness understood that the assessment was consistent with the matters required by the Commissioner’s Delegate at the conclusion of the 29 July 2016 Statement of Reasons.

Dr Jetnikoff

115. The witness appeared by telephone, and adopted his report (Exhibit R-2) in evidence in chief. He agreed that in 2008 the existing DSM IV 5 Axis would have identified whether ‘Bi Polar’ was present.

116. In cross examination the applicant put to the witness that the report was not an assessment of him but an assessment of documentation. The witness was asked whether he would expect a Bi-Polar II sufferer to be on medication. The witness agreed that yes they would be on medication typically, but not always, and that common practice would involve some sort of treatment.

117. The witness agreed that if a patient had been referred to him then he would send an outcome report back to the referring G.P. The witness indicated that there was a caveat necessary in considering ‘Type II’ Bi-Polar in that the presentation can involve hypo normal episodes with normal functioning.

118. In re-examination the witness was asked about the reference to ‘venlafaxine’, arising from a BDI document. The evidence was that it relates to a common anti-depressant.

Other Evidence

119. Between the second and third day of hearing the applicant tendered a report which took the term of an ‘outcome report’ back to the referring G.P. dated 28 March 2008. (Exhibit A – 8). The report sets out a history, mental state examination and under the term: ‘Impression’ states:

Impression: resolving hypomania, Bipolar Affective Disorder type II (two previous episodes of melancholic depression) – with a particular personality style.

120. Earlier in the report under ‘Mental state examination’ the following is observed:

Mental state examination: casually dressed, chatty, smiling and interacting well, no overt evidence of a current psychiatric condition or cognitive impairment.

121. Under the heading ‘Premorbid Personality’ the following is observed:

Premorbid personality: described himself as caring, likes to help and educate others, innovative, humorous, “I love going into detail”, meticulous and perfectionistic. MAP showed high scores in irritability, perfectionism and being self focused.

122. Had this report been available earlier in the proceedings (and Exhibit A -7), the course of the matter may have been somewhat different. In any event these reports were obtained by the applicant by making further inquiries with the relevant bodies, in part in response to the respondent’s submissions over the various hearing days and ‘party party’ correspondence and communications.

123. Attached to the 28 March 2008 report is a seven page ‘Mood Assessment Report’ dated 27 March 2008 on a BDI pro forma. At page 3 under the heading: Depression Severity is a DMI -10 Score ‘7’ The notes to the assessment state the following:

Current level of depression severity (scores range from 0-30), with 9 or more significant. Higher score = more severe.

Respondents Submissions

124. The respondent made detailed submissions as to why it was not in the public interest for the applicant to hold a firearms licence. The respondent submitted that the correct approach for the Tribunal is to review the merits of the original decision considering the evidence available at that time, and any other or later material, in order to affirm, vary or set aside the decision under review. That submission was supported by reference to the case of Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 (1979) 46 FLR 409.

125. In respect of the ‘public interest test’ the respondent submitted that the Tribunal should consider issues beyond the applicant’s character. Concerns about public safety, public protection and public confidence in the administration of the licencing system should be taken into account. Reference was made to the views expressed by the Appeal Panel of the Administrative Decisions Tribunal (ADT) in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16.

26. As noted, the Tribunal's fitness finding rested solely on the deception involved in the filling out of the Queensland application form. We have some concern over a finding as to lack of fitness that is so narrowly based. While the appellant's account was self-serving and his understanding of his personal responsibilities for ensuring the accuracy and truth of an application misguided, minds might differ on whether a single event of this kind should lead to the very serious finding that a person is unfit to be granted a licence.

27. In making its 'public interest' calculus the Tribunal, in contrast to its approach on the fitness question, did take the criminal history into account. It weighed in the balance both the nature of the criminal history and the appellant's omissions in his Queensland licence application.

28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at 25 the 'public interest' is:

. . . an inherently broad concept giving the appellant 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.

…..

31. The public interest case was a stronger one. It is a grave decision to arm any person with a pistol - even if its use is limited to sports shooting, and made subject to special conditions such as storage in club safes.

32. If a person has in the past committed serious acts of violence, that can not be wholly ignored. A judgement as to fitness focuses on character as now revealed. It may be that a conclusion could be reached that a person has rehabilitated himself, and should not be seen as unfit to be granted a pistol licence in the sense of lacking today a good character. The Tribunal would, it appears, have reached that view had it not been for the new information about the misrepresentations he had made in answering the Queensland application form in 2011.

33. The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.

126. Reference was also made to the objects of the governing legislation. Section 3 of the Firearms Act 1996 provides:

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

The respondent submitted that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered.

127. Submissions included a reference to cases indicating that the individual’s interests would always be subordinate to the public interest in the issuing of a licence. Reference was made to Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 at paragraph 681 of the Report:

The purpose of the reference to ‘public interest’ is to ensure that private interests are not 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.

128. Reference was also made to the well- known case of Ward where the ADT stated that in respect of the issuing of a firearms licence there must be ‘virtually no risk’ to public safety. (Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28)

129. The respondent’s submissions then focused on the applicant’s behaviours in August and September 2015. The Tribunal notes that the fact that the applicant’s assertions concerning the manner of death of one of his livestock (goat) were somewhat unusual, appears to have played a part in the opinions and conclusions of the attending police. Police advised the applicant to contact the Shire Ranger about his concerns as to what had killed and eaten the goat. However whilst the COPS event uses the terms, ‘strongly disagreed with the Police version’, and ‘adamant’ to describe the applicant’s belief, the Event then concludes with:

Police recorded this event as Police are of the belief that the PR may be suffering from some form of mental illness.

130. The respondent submitted that the attending police on 10 September 2015 observed the applicant to be engaged in ‘peculiar and irrational conduct’. The Tribunal observes that the stated reason that Police drove onto the applicant’s property on the early evening of 10 September 2015, after being told they were no longer needed, was ‘Due to the POI’s erratic behaviour and manner and the unusual nature of the call police attempted to speak with him to check his bonafides’.

131. The submissions go in to summarise the evidence from the COPS Event (page 11 of Exhibit R-1). In addition the submission refer to the applicant’s broad ranging grievance filed correspondence in the days and weeks following the firearms seizure and the August and September interactions or incidents. The respondent submits that it is not in the public interest for a firearms licence holder to have a bad relationship with police.

132. As outlined earlier the main prong of the respondent’s argument appears to rest on the view that the applicant is mentally ill, or at some time in the past was mentally ill. From paragraph 5.22 of their submissions the respondent submits that:

5.22 The Commissioner submits that the applicant’s mental illness and the lack of evidence of effective treatment will present a risk to public safety if his Firearms Licence is retained.

5.23 The applicant has confirmed that he had been diagnosed bipolar II in 2008. Since the applicant’s firearms licence was suspended, the applicant has sought to clarify that this was an isolated diagnosis, and that he was not required to take medication.

133. In oral submissions on the third day of hearing the respondent submitted that the incident on the bonnet (referred to in evidence at hearing) is inconsistent with the statement that the applicant said: ‘I was diagnosed with Bi-Polar II in 2008.’ The BDI suggested that the applicant might be Bi-Polar, and it was submitted that the report from the BDI (Exhibit A -8) could constitute a diagnosis.

134. The respondent submitted that the applicant’s mental state in 2008 is not as important as his evidence today. The police concerns are about what the applicant allegedly said in his driveway about 2008. The respondent made a somewhat curious submission that it is likely that Mrs MacDonald could not read, the relevance of which is uncertain to the Tribunal. (From recollection when giving evidence in 2016 the witness had forgotten her glasses).The respondent submitted that the evidence of the police witness Constable Smith should be preferred.

135. Significant submissions were made critical of the report by Psychologist Kruger-Davis. (Exhibit A 3). It was submitted that the expert’s oral evidence was ‘faulty’ and in fact the expert did not utilise the DSM IV at all.

136. Dr Jetnikoff’s evidence was that the applicant needs to be assessed. The respondent concluded by the submission that overall the key issue is whether the applicant requires a medical assessment. In the respondent’s view we cannot be left in the dark in respect of this issue as to the mental health of the applicant.

Applicant’s submissions

137. In addition to significant written material by way of evidence (which included material of the nature of submissions), the applicant made oral submissions at hearing.

138. The applicant submitted that NSW Police were unjust in seizing his (and his wife’s) firearms and licences. NSW Police findings were based on personal opinions and were disproportional.

139. The applicant noted in oral submissions that the officer on two occasions left his property in the supposed belief that he was mentally unstable, to which the applicant asks why they left his firearms if that was the view on both 25 August 2015 and 10 September 2015.

140. The applicant submitted that Dr Jetnikoff did not produce an accurate account due to a rushed turn-around time. It was submitted he made assumptions about some conflict between the applicant and Mr Kruger-Davis (being friends) and that he failed to understand the purpose of the Kruger-Davis report. The report is more of a critique of the Kruger –Davis report and a paper based assessment made on assumptions.

141. In closing the applicant submitted that all licences should be re-instated and the period between seizure and re-instatement credited on the licence in some way, as well as notifying an application for costs of the matter.

Consideration

142. Whilst not a main prong of the respondent’s basis for the revocation of the licences and resisting the applicant’s review, in my view the issue of ‘fit and proper’ as well as ‘public interest’ should be considered. It is clear that the section 24 (2) (c ) ground (fit and proper) was a pre-condition in the reasoning of the respondent in both the Notice of Revocation dated 18 February 2016 and the Internal Review decision of 29 July 2016.

143. By making a finding as to the applicant’s motives and attitude towards police, the nature of his general behaviour, and his state of mental health, in my view as a pre-condition the respondent’s delegate is determining that the applicant is not a fit and proper person to hold the licence. It may well be that no actual finding is made on that issue due to the central consideration being a finding by the respondent that the applicant’s behaviour constitutes a medical condition, and for that reason Clause 19 of the Firearms Regulation 2006 is the ultimate provision adopted.

144. On the fit and proper consideration the case of Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 is a lead authority, and that case reasoned that fit and proper takes its meaning from its context. Reference was made to various cases which examined the issue in the context of the Firearms Legislation. The case of Constantin v Commissioner of Police [2012] NSWADT 172 summarises the relevant authorities as set out in Pobjie v Commissioner for Fair Trading [2008] NSWADT 39 paragraphs 114 – 117 below.

Fitness and Propriety

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

"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."

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."

115 A person’s fitness is to be gauged in the light the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7):

"The expression ‘fit and proper’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. 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 ... 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."

116 In Sobey v Commercial and Private Agents Board 20 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 evolving 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."

117 Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. What fit and proper means must be viewed in the light of, "... the activities in which the person is or will be engaged": Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280, at 290. What is fit and proper will depend on the legislative context and the nature of the particular profession, trade or occupation in question: Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794, at 796 paragraph [41]. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licensed building contractor should have his application for a new licence refused because, despite there being no evidence that he was dishonest or of bad repute, evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case, as here, the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth).

145. There is clearly no argument as to the applicant’s ‘reputation’, probity or similar issues. The applicant has the necessary knowledge honesty and ability to possess a licence based on his past demonstrated firearms conduct. Again the concern seems to go to inferences based on the applicant’s presentation and interaction with police in somewhat ‘heightened’ circumstances brought on by the initial concerns about his livestock.

146. On the question of ‘public interest’ the case of Petas v Commissioner of Police NSW Police Force [2013] NSWADT 137 provides the following observations at paragraph 36:

36.One aspect of the circumstances of 22 August 2010 is that Mr Petas' performance as the Club's duty officer contributed to - but was not the only cause of - the tragic events that unfolded. It should not be forgotten that another significant contributor was the fact that Ms Fernando was a thief who had previously shown herself to be a liar. It would be easy to demonise Mr Petas, and to punish him further for breaching s 65 of the Act by selling ammunition to an unlicensed person. But the licensing regime is not about punishment. It is about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with a need to reduce any risks to a minimum.

147. The case of Martin v Commissioner of Police NSW Police Force [2010] NSWADT 276 also addresses matters of the public interest as identified in Clause 16. At paragraphs 69 to 74 the ADT observed the following:

69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681:

"The purpose of the reference to 'public interest is to ensure that private interests are not 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."

70 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at paragraph [25], the Appeal Panel said that the ‘public interest’ "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".

71 There is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions and I agree that it is the correct approach to be taken in this matter.

72 In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy president Hennessy stated at paragraph [25]

25 As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. ...

73 A firearm licence is a privilege and not a right. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at paragraph [25].

74 The underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk".

Observation

148. The Tribunal notes that the applicant has a particular approach to communication that whilst not highly unusual, is somewhat less common than the general way of approaching matters. The applicant speaks in a deliberate and measured manner, often containing a significant amount of detail. This detail often aides communication, but at other times appears (on my observations) to confuse issues to any audience. This is not a criticism of the applicant merely an observation. I made some preliminary observations on this issue at paragraph 14 (above). Mr Kruger-Davis’s report and other material in evidence refer to the applicant’s detail and habit of having a broad ranging approach to issues which at times can appear to be ‘off on a tangent’, or to the inexperienced, appear rambling at times. Whilst some of the written material prepared by the applicant may seem to be rambling and off point, the applicant’s oral evidence before the Tribunal was (as previously observed) at all times cogent. It appears that for whatever reason the applicant’s manner and demeanour (without criticism) contributed to the manner of the police response and inferences drawn on 10 September 2015.

Further Consideration

149. In my view the central issue for consideration in these proceedings is whether the applicant has some medical condition that establishes that it is not in the public interest for him to possess or hold a firearms licence. The issue of fit and proper does however in my view remain a subsidiary consideration especially in determining the matter afresh.

150. The live issue circulating around that issue is (a) whether the applicant is or was diagnosed with a depressive illness, and (b) whether (if such a diagnosis is / was present) then is there is any cogent evidence to establish that the applicant should be subject to a further assessment of his psychological and mental health and well-being before deciding whether to re-instate his licence.

151. A review of the evidence concerning the August 2015 call out indicates that the applicant had significant concerns and as a first response sought Police assistance or opinion. Police gave the applicant more tailored advice (concerning the Shire Ranger), but on my assessment, the initial requesting of non-urgent assistance, and the manner of which the animal was presented, are not overly unusual or inappropriate to cause an observer to hold any real concerns. As set out earlier the applicant is considered to have unusual charteristics to his demeanour and communication style, but that in no way establishes that there is anything inappropriate or unlawful in such a presentation.

152. In the August 2015 call-out situation the applicant was understandably agitated but not in a way or manner so as to cause the attending officers to take any action adverse to the applicant. They merely offered some opinions as to their observation of the animal and then directed the applicant to the Shire Ranger. The applicant sought to summons officer Roberts to give evidence, and even though (by consent) he was not called, in my view this shows that the applicant sought to examine and test the basis for the adverse comments in the COPS Event.

153. The critical call-out of 10 September 2016 was addressed in significant detail over the first day of hearing. The applicant gave detailed and cogent evidence as to every matter put to him in cross –examination. The applicant’s version of events was significantly supported by the evidence at hearing of his wife. As the respondent only provided one witness at hearing, only one version was considered in addition to the written material in evidence for the respondent. The applicant conducted a detailed cross-examination of the respondent’s witness and provided detailed material (including props – maps) to establish certain facts.

154. On key points such as the lighting, whether the applicant was prone and silent on the ground, and the position of the officers and the manner in which the applicant was held, on my assessment the inconsistencies tend to favour the applicant’s evidence. On significant issues the respondent’s witness recollection was vague and uncertain, and incomplete and this was conceded by that witness.

155. Importantly however the key issue as to what the applicant said (about being diagnosed with Bi-Polar II in 2008) seems uncontroversial. It is the exact meaning of those words and the ultimate import from the additional evidence that is relevant.

156. I disagree with the respondent’s submissions concerning the nature of Mr Kruger-Davis’s assessment, and in my view neither the written report or the oral evidence was in any way ‘faulty’. In essence Mr Kruger-Davis’s report meets the criteria as set out at the conclusion of the Internal Review by the Commissioner’s delegate on 29 July 2016. It is a report from a register psychologist who provides an opinion as to the applicant’s current suitability to hold a firearms licence.

157. The report addresses the four requirements of the Commissioner’s delegate being:

• Bi-Polar diagnosis will not negatively impact on exercise of continuous responsibilities over firearms,

• Current ability to form rational judgment, will power to control physical acts,

• Current possession of firearms will cause no risk to public safety,

• Expert makes assessment cognisant of contents of Revocation Notice and Internal Review.

158. In my view the report correctly makes the finding that the applicant does not and did not have a diagnosis of Bi-Polar II. It reaches this conclusion after significant analysis and consideration of the extra material provided by the applicant and the psychologist’s own assessment. For these reasons this requirement is satisfactorily traversed for the applicant. The report also addresses the other two matters in a professional and independent / impartial manner. There is no evidence of any attempt to subjectively reach certain conclusions. The comments concerning a possible denial of procedural fairness to the applicant in the matter at the conclusion of the report appear to arise because of the manner in which the applicant’s version of events is discounted by the two decision making delegates. The belief that the applicant has a diagnosed mental disorder appears to inform the approach taken to his evidence by the delegates.

159. In respect of the report of Dr Jetnikoff it does not have the benefit of having examined the subject. It is a paper based assessment which spends significant time on a critique of Mr Kruger-Davis’s assessment report. This critique is in part predicated on a misunderstanding that the applicant and the expert were friends. In my view this was adequately addressed at hearing. Because of the manner and context in which the expert (Kruger-Davis) mentions his ‘knowledge’ of the applicant I had no concerns and noted that the expert had some prior knowledge of the applicant’s individual traits due to one or two brief encounters. It is clear that the second expert for reasons unexplained (but possibly not having had the benefit of witnessing the applicant’s manner) took those words ‘known Mr MacDonald for several years’ to in some way remove the independence of the assessment.

160. The material ‘Exhibit A - 8’ at folio 125 is the closest that the evidence comes to a diagnosis of the applicant in 2008. That material however in my view must be read in totality with the clinical records at folios 126 – 133. At folio 129 under Depression Severity is a score of ‘7’ with the following qualifier:

Current level of depression severity (scores range from 0-30), with 9 or more significant. Higher score=more severe.

161. All of the other medical material (as discovered and willingly disclosed by the applicant without dispute), supports the proposition that the applicant believed that he might of suffered from Bi-Polar in 2008 and sought assistance to diagnose and or treat at that time.

162. The observations of the applicant around the late winter / early spring of 2015 have been dealt with in some detail at hearing. I accept the basis for the applicant’s concerns and his evidence that he no longer holds those concerns about the motives of persons (including the possibility of concerns about police).

163. I make a finding that on the available evidence the applicant has never been diagnosed with a mental health or psychological condition such as BI-Polar I or II. I also make a finding that noting the applicant’s complete lack of any criminal record, and in particular the lack of any adverse finding concerning the use and safe storage of firearms (on the evidence presented to the Tribunal), and the lack of any adverse evidence, the applicant not only meets the fit and proper requirement, but also that the issuing of a licence to the applicant is not contrary to the public interest requirement under Clause 19 of the Regulation.

164. I decline to make any comments or orders in respect of the submission that the licence refund or re-instate the period of revocation, as in my view the jurisdiction of the Tribunal (in respect of re-instatement with conditions) does not extend to administrative matters. However the action taken in respect of decisions of Mrs MacDonald’s licences should be reviewed in light of the decision in these proceedings.

165. I also decline to entertain any costs application due to the fact that the applicant was self represented, and in my view the proceedings were not conducted in a manner so as to enliven issues arising under section 60 of the Civil and Administrative Tribunal Act 2013.

Conclusion

166. It follows that the correct and preferable decision is to set aside the decision of the respondent dated 18 February 2016 and 29 July 2016, and substitute that decision with a fresh decision in accordance with the orders of the Tribunal.

167. It follows that the orders shall be made in the following manner having regard to the reasons outlined above. I note the effect of the decision is that the applicant’s Category A firearms licence is reinstated.

Orders

1. The decision to revoke the Applicant’s Category A Firearms Licence 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: 21 June 2017