Melodia v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 121

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Melodia v Commissioner of Police, NSW Police Force [2025] NSWCATAD 121

Hearing dates:

01 May 2025

Date of orders:

02 June 2025

Decision date:

02 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof R Graycar, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

ADMINISTRATIVE REVIEW; Firearms Act 1993; fit and proper person; public interest;

Legislation Cited:

Administrative Decisions Review Act 1977

Civil and Administrative Tribunal Act 2013

Firearms Act 1993 (NSW)

Mental Health (Forensic Provisions) Act 1990 (NSW)

Security Industry Act 1997

Cases Cited:

Bilanenko v Commissioner of Police [2022] NSWCATAD 76

Commissioner of Police v EMB [2021] NSWCATAP 63

Cusumano v Commissioner of Police [2001] NSWADT 50

EMB v Commissioner of Police [2021] NSWCATAD 247

Emery v Commissioner of Police [2022] NSWCATAD 122

Grant v Commissioner of Police [2020] NSWCATAD 158

Joseph v Commissioner of Police [2017] NSWCA 31

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

Meacham v Commissioner of Police [2020] NSWCATAP 107

Roads and Maritime Services v Rifahi [2015] NSWCATAP 43

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

Ward v Commissioner of Police [2000] NSWADT 28

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Texts Cited:

none

Category:

Principal judgment

Parties:

Anthony John Melodia
Commissioner of Police, NSW Police Force

Representation:

Counsel:
D Toohey (Applicant)

Solicitors:
HA Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2024/00474442

REASONS FOR DECISION

Introduction and background

1. The applicant lodged an application for a category AB firearms licence on 25 October 2024. That application was refused by a decision made on 8 November 2024. The applicant sought internal review of that decision on 22 November 2024 and on 18 December 2024, the internal reviewer affirmed the original decision. He then sought review from the Tribunal by an application filed on 20 December 2024.

2. The applicant has held a firearms licence since 20 March 2006.

3. On 24 January 2020, his AB licence was suspended and was revoked on 21 October 2020. This followed an incident at the home of the applicant’s sister on 22 January 2020 (January 2020 incident), which resulted in the applicant being charged with a number of violence related offences including “armed with intent to commit an indictable offence” and being the respondent to an apprehended violence order (AVO). The charges were subsequently dismissed pursuant to s 32(3)(a) of the (then) Mental Health (Forensic Provisions) Act 1990 (NSW) (Mental Health Act).

4. On 24 April 2023, the applicant applied for a firearms licence. That application was refused. The applicant sought internal review of the decision to refuse his application for a firearms licence and when that was unsuccessful (4 July 2023), he sought review in the Tribunal by an application made on 18 July 2023. That application to the Tribunal was ultimately withdrawn by the applicant.

5. As noted above, a further application for a firearms licence was made on 25 October 2024 which was refused, a decision that was affirmed on internal review. It is the decision in relation to the October 2024 application that is before the Tribunal for determination.

6. The applicant seeks to challenge the decision on a number of bases including that he had previously held a category A, B and H firearms licence since 2000 (sic); that he is unable to obtain suitable employment as a result of the decision; that the charges against him were dismissed under the Mental Health Act and he was diverted into treatment; and that the AVO is no longer in place. In his application for review (prepared by his legal representatives) he also claimed to have had extensive rehabilitation. He provided a comprehensive risk assessment conducted by Stephen Bradley in a report dated 6 August 2024 which, it was contended, had “conclusively determined” that his “symptoms have resolved and remain stable with ongoing medication and his behaviour does not suggest he is at risk of harming himself, or others”.

7. In other parts of the application, the applicant sought to challenge the facts set out in other COPS event reports, on the basis that “reliance was placed upon complaints neither adequately investigated or pursued to any conclusion and which occurred many years ago and at a time during which Mr Melodia held a firearms licence”.

8. The internal reviewer affirmed the decision of the respondent. The reviewer referred to the January 2020 incident; and noted that the charges were finalised pursuant to s 32 of the Mental Health Act as it appeared to the magistrate that the applicant was “cognitively impaired, was suffering from mental illness or was suffering from a mental condition for which treatment was available in a hospital”. The reviewer also referred to medical reports submitted in support of that outcome to the effect that the applicant had been receiving treatment from a psychologist since September 2019 and had reported struggling since 2010 after being discharged from the army due to his mental health (which he had “incorrectly reported” as being because of physical injury).

9. The reviewer pointed out that on both the 24 February 2023 application and the current 2024 application, the applicant had answered “no” to the question of whether he was being treated for a mental or nervous disorder or illness over the previous 12 months, despite the fact that there was evidence that he was receiving treatment in that period.

10. The reviewer was not satisfied that the applicant was currently “a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace”. The reviewer was also not satisfied that there would be “virtually no risk to public safety” if the applicant was authorised to have a firearms licence and that it would not be in the public interest for him to do so at this time.

11. It was against that decision that the applicant applied for review to this tribunal

Regulatory framework

12. The key relevant statutory provisions governing the decision before the Tribunal are contained in the Firearms Act 1996 (NSW) (Firearms Act). Section 3 sets out the principles and objects 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.

…

13. Section 11 of the Firearms Act is also central. It relevantly provides:

11 General restrictions on issue of licences

…

(1)    The Commissioner may issue a licence in respect of an application, or refuse any such application.

…

(3)    A licence must not be issued unless--

(a)    the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

(b)    in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and

(c)    the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and

(d)    the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.

(3A)  Despite subsection (3) (b), the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned.

(4)    Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of--

(a)    the applicant's way of living or domestic circumstances, or

(b)    any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or

(c)    the applicant's intemperate habits or being of unsound mind.

(5)    A licence must not be issued to a person who--

(a)    is under the age of 18, or

(b)    has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

(c)    is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked), or

(d)    is subject to one of the following in relation to an offence prescribed by the regulations--

(i)    a good behaviour bond, whether entered into in New South Wales or elsewhere,

(ii)    a community correction order imposed in New South Wales,

(iii)    a conditional release order imposed in New South Wales, or

(e)    is subject to a firearms prohibition order, or

(f) is a registrable person or corresponding registrable person under the Child Protection (Offenders Registration) Act 2000 .

…

….

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

(8)    The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.

14. Section 75 provides for review of decisions:

75 Administrative reviews by Civil and Administrative Tribunal of certain decisions

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions—

(a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,

…

15. Other relevant statutory provisions are s 9 of the Administrative Decisions Review Act 1977 (ADR Act) which provides that the Tribunal has administrative review jurisdiction if enabling legislation provides that applications may be made to the Tribunal for administrative review (cf Firearms Act, s 75).

16. In determining an application for administrative review, by s 63 of the ADR Act the Tribunal is to decide what is “the correct and preferable decision” having regard to “any relevant factual material, and any applicable written or unwritten law”. That can include material that postdates the decision under review (see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [37]-[38], [45]-[46], [99], [143]; Bilanenko v Commissioner of Police [2022] NSWCATAD 76 at [10]). The Tribunal can exercise all of the functions of the person who made the decision. In determining an application for review, it can affirm the decision; vary the decision; set the decision aside and substitute for it a different decision or set the decision aside and remit it to the decision maker for reconsideration in accordance with any directions or recommendations of the Tribunal.

17. By s 38(2) of the 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. But as the Appeal Panel explained in Meacham v Commissioner of Police [2020] NSWCATAP 107 (Meacham) at [54]:

Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on “logically probative material”, and not on “mere suspicion or speculation”, as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (“Pochi”) at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 (“Sullivan”) at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.

18. There is no formal onus of proof in the Tribunal: see Meacham at [75] but as noted at [82]-[83]:

… [I]n an administrative review case, the parties put on such evidence as they wish and, in a matter of this kind involving the exercise of a discretion, it is a matter for the Tribunal to properly consider all relevant materials and ignore all irrelevant matters in exercising the power of the relevant administrator in review proceedings. This is especially the case where a decision has been taken on a discretionary basis in light of the public interest.

Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. … [T]he Tribunal is required to base its findings of fact on “logically probative material”: Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].

19. A number of principles govern decision making under the Firearms Act. First, by s 3(1)(a), a key object of that Act is “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety” (emphasis added). It follows from this that the community’s interests take precedence over the private interests of an individual. As put by Hennessy DP in Cusumano v Commissioner of Police [2001] NSWADT 50 (Cusumano) at [23], the powers in the Act “should be exercised in a way which promotes the principles and objects of the Firearms Act.”

20. In Ward v Commissioner of Police [2000] NSWADT 28 (Ward) at [28] the Tribunal said that in terms of public safety:

28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk. (emphasis added)

21. While the applicant is not required to prove a negative, the Tribunal’s assessment is to occur in a “nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety”: see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 (Martin) at [66] and see also at [64]–[65] where the Tribunal reviewed other authorities including Ward.

22. The concept of public interest is not defined in s 11(7) or elsewhere in the Firearms Act but it has been held to be informed by the underlying principles and objects of the Act: see for example Emery v Commissioner of Police [2022] NSWCATAD 122 (Emery) at [26], referring in turn to Cusumano at [23]. As the Tribunal explained in Emery at [27]-[29]

27   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 deciding whether to exercise a discretion adversely to an individual. In Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24], the Tribunal found that public safety is to be given paramount consideration.

28   In considering the question of public interest, the Tribunal takes into account the interests of public protection, public safety and the proper functioning of the legislative requirements of the firearm scheme. Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].

29   In Davos v Commissioner of Police [2013] NSWADT 7 at [117], the Tribunal said:

The most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences.

Evidence before the Tribunal

Applicant’s evidence

23. The applicant provided a written statement on 23 January 2025. That statement was signed by the applicant on 16 January 2025, but on the front page it bears the date 11 September 2023.

24. The applicant filed a further written statement received by the Tribunal on 20 March 2025. It is signed by the applicant on 13 March 2025 and is said to be a statement of that date.

25. It became apparent in the course of the hearing that the statements referred to in the previous two paragraphs are identical save for the dates on them. The applicant’s representative explained that the statement which bears the date 11 September 2023 was prepared for an earlier appeal of the unsuccessful 2023 application for a firearms licence, but which appeal was withdrawn before it was determined by the Tribunal.

26. In summary, the statement included the following:

1. The applicant had previously held a Firearms Licence (Category AB) which he contended permitted him to be armed while performing security work pursuant to the Security Industry Act 1997 (NSW). He has not worked since January 2020 after an incident at the home of his sister during which he approached her house with an axe. The applicant’s sister was not present at the home at the time, but her partner was there. The applicant claims to have been injured in that incident by his sister’s partner who he states “forcefully opened the metal gauze screen door into” his body causing him to fall.

2. The applicant asserts that he did not have “possession of a pistol or threaten to harm anyone with a pistol”. This includes both his sister’s partner, Mr Ian Gillian, and a neighbour, Mr John Robson (both of whom gave evidence at the Tribunal hearing).

3. The applicant acknowledges being charged with “intent to commit an indictable offence with an instrument and to intend fear”. That charge and the others laid after that incident were determined by his pleading guilty to them and the matter being dismissed by the court by reference to what was then s 32 of the Mental Health Act and he was “diverted into treatment”.

4. The applicant claims to be “embarrassed by [his] disgraceful behaviour and [to] have resolved and corrected that behaviour through treatment at St John of God Hospital Psychiatric Unit”. He contends that after completing the court ordered treatment he feels “much better equipped to work through any issues which arise in any setting, particularly in the family scenario”.

5. In the statement, the applicant also responds to a number of earlier incidents referred to in the respondent’s evidence:

1. He was sacked from his job at Ryde Council in March 2015 “without any or any proper reason being given” and refers to the allegation that he had threatened his team leader and another senior worker that he was “going to line you up and shoot you”. He denies that allegation, claiming it was fabricated.

2. On 16 April 2015 he claims to have been verbally abused by the two men from his work (referred to in the preceding paragraph) while at a shopping centre with his mother, and it is said that he threatened them on that occasion also. He denies that he said to them “You aren’t walking out of here alive, you’re both gone”.

3. The third incident referred to (19 January 2013) is a suggestion made in a COPS event record that he may have been linked to an outlaw motorcycle gang: he claims he was at the hotel named in the record in the course of his work as a security guard/bouncer.

1. The fourth incident (17 March 2009) involves his having a fake/replica pistol which was observed in his car. In relation to that, he states “Police confirmed … that as I held a plain-clothes permit to carry a live weapon, it was permissible for me to have a replica or fake pistol … and no action was taken”. He claims to have voluntarily surrendered it to police.

2. The fifth and final incident to which he refers is a claim that a “former female friend” had reported that he made a threat to her which he “strongly denies”.

6. The applicant denies that the statement on an application for a firearms licence made on 20 February 2023 that he has “nil mental health treatment previous 12 months” is false. This is because he says his “ongoing consultations with [his] psychologist … is more for peace of mind”. He contends in the statement that his mental health treatment “came to an end on 6 December 2021”.

7. The applicant undertook a “risk assessment” which he summarises as stating that his “symptoms of depression have resolved and remain stable and [he is] not at risk of harming himself or others”.

8. He does not regard himself as having an ongoing mental health condition and wishes to resume his career in the security industry for which he states that he needs a firearms licence.

27. The applicant also provided a character reference from Stan Nicholas Malaxos which is dated 2 March 2025. It was presented to the Tribunal (and provided to the respondent) at the hearing of the matter on 1 May 2025.

28. The applicant was cross examined by the representative of the respondent and the content of that oral evidence will be further discussed below.

29. Written submissions prepared by the applicant’s legal representatives were filed in the Tribunal on 21 March 2025.

Respondent’s evidence

30. The respondent provided three separate tranches of evidence as follows:

1. Documents provided pursuant to s 58 of the ADR Act filed on 7 February 2025 (section 58 documents). In addition to the primary decision and the internal review decision, that bundle contains the following:

1. Information from the Police information system (“COPS”): this includes statements taken from Mr Ian Gillian and Mr John Robson on 22 January 2020 in relation to the incident on that date at the home of Mr Gillian who is the partner of the applicant’s sister, Ms Francesca Melodia. The brief of evidence (including a facts sheet) prepared after the applicant’s arrest is also included in that material.

2. Firearms applications and reapplications from 16 February 2006 to the most recent dated 25 October 2024;

3. Notices from the Firearms Registry, including the suspension and subsequent revocation of his licence in 2020 following the January 2020 incident;

4. Internal review material from the 2023 application; and

5. Internal review material from the 2024 Application.

2. Bundle of supplementary s 58 documents dated 4 April 2025: this bundle contains a number of medical reports/medical records provided by the applicant on 4 March 2025, in response to a request from the respondent, which followed those reports being referenced in the risk assessment provided by the applicant (part of which was included in the s 58 bundle). These included the following:

1. Dr Patrick Morris, Consultant and Forensic Psychiatrist, reports dated 12 March 2024; 4 July 2024; 30 July 2024.

2. Dr James Tsia, General Practitioner, reports dated 7 May 2024 and 28 July 2024

3. Kim Arnold, Counselling and Therapy Centre administration officer St John of God Hospital, 2 May 2024

4. Letter from psychologist Hadi Stambouliah to the local court, confirming the applicant’s attendance at St John of God Hospital, dated 5 May 2021;

5. Reports to his solicitor from Dr Stephen Rosenman, Psychiatrist at St John of God Hospital, 7 April 2021 and 16 April 2021 (also included in the s 58 documents);

6. Referral letter from Dr Kristina Bojan, GP to Dr Rajesh Waheshwari at St John of God dated 3 February 2020;

7. Risk assessment questionnaire, prepared by Susan Homeh Hawil, consultant psychologist (Annexure 1 to the report contained in the section 58 documents),

8. Report of clinical psychologist Fatima Omar dated 22 February 2021, in which she noted that she had been seeing him since 4 September 2019 (also included in the s 58 documents).

9. Hand written notes including outpatient assessment from St John of God Hospital; and

10. reports dated 10 May 2023 and 27 September 2023 from Dr Awais Ahmad, psychiatrist at St John of God, to a Dr Lee.

3. Tender bundle of documents received by the Tribunal on 26 April 2025 which contains extracts of material obtained pursuant to summonses issued by the Tribunal. Included are the following:

1. Material relating to the time the applicant was in the army. This includes

1. Psychology assessment 12 November 2010 recommending his discharge

2. Report of Dr Rhys H Gray, consultant orthopaedic surgeon 23 June 2011;

3. decision of the Veterans’ Review Board (VRB) dated 20 November 2012;

4. decision of the Administrative Appeals Tribunal (AAT) dated 24 October 2014;

5. a letter dated 8 March 2018 from the Department of Veterans Affairs (DVA) approving the funding of all mental health treatment by the Department;

6. a letter from DVA dated 10 October 2019, responding to a claim by the applicant for permanent impairment compensation;

7. a report from Dr Frank Kai Tai Chow, Consultant Psychiatrist, 18 March 2021. That report stated that the date of onset of psychiatric condition would be late 2019 from which time he had been on antidepressants. It appears to have been prepared in support of an application for medical impairment assessment addressing emotional and behavioural conditions;

8. report from Dr Myles Gutkin, consultant Psychiatrist for DVA, dated 9 November 2023, referring to the fact that the applicant had had “intensive psychiatric treatment for the past four years”.

9. Letter from DVA 30 July 2024, reassessing the applicant’s entitlement to incapacity payments; and

10. Letter from DVA to applicant dated 12 February 2025, acknowledging a claim to DVA relating to depression received that day.

31. The respondent also filed and served a statement of Mr Ian Gillian dated 11 April 2025.

32. The respondent filed written submissions on 4 April 2025. At the hearing, the respondent served an amended version of those submissions, marked up to note changes which were made to take account of the material in the tender bundle which was in turn based on the material obtained pursuant to summonses issued by the Tribunal on the application of the respondent.

Oral evidence at hearing

Respondent’s witnesses

33. The applicant cross examined Mr Robson and Mr Gillian, who were witnesses of the 22 January 2020 incident.

34. Mr Robson is the neighbour of the applicant’s sister and her partner, Mr Gillian. He was 72 years old at the time of the incident. He stated that his main concern at the time was for his nine year old granddaughter who was living with him and he was unhappy about the language being used. In his statement, made to the police at the time of the incident, he had said that the applicant stated: “you are lucky it’s not a 45”. It was put to him that those words were not said, but he rejected that proposition and confirmed that what he had said in his contemporaneous statement was correct.

35. Mr Gillian also gave evidence. He stated that he had feared for his life and had shouted at the applicant for bringing an axe to the house. He agreed that he had grabbed a sword (he explained that he is a collector of military artifacts) to answer the door. He stated that the applicant had said “you are lucky it wasn’t a 38 or 45”.

36. It was put to Mr Gillian in cross examination that he had been the one who was aggressive and that he had hit the applicant: he denied that. He also denied the proposition that no reference was made to a gun: he was adamant that the applicant made the threat referring to the gun. He accepted that he had shouted and become aggressive but stated that was only after he was threatened by the applicant.

Oral evidence of the applicant

37. The applicant was cross examined by the representative of the respondent who commenced by taking him to documents relating to his discharge from the army after having served 10 days in November 2010. It was put to him that there were two reasons for his discharge: his physical health (specifically, ankle injury) and his psychological health. The applicant told the Tribunal that he understood that the sole reason was because of his physical health (he had incurred injuries to his ankles during his initial training). He had no response to references in that material to his psychological health and could not recall whether he was, as stated in the report from 2010, unreceptive to counselling at that time.

38. He was then taken to a 2012 decision of the VRB which had dismissed appeals from two separate decisions of the Military Rehabilitation and Compensation Commission in which the applicant had unsuccessfully sought compensation for “Achilles tendonitis left foot” (2011) and in the second decision (2012), for “adjustment disorder with depressed and anxious mood”. He told the Tribunal that he could not recall making either claim.

39. The applicant was asked about the March 2018 decision by DVA by which he was eligible to receive treatment funded by DVA for mental health. He could not recall the process of obtaining that. In response to questions of whether he had ever been diagnosed with a mental health issue, or treated for one, he responded that he could not recall.

40. The applicant was asked about a report by psychologist Fatima Omar which was dated 22 February 2021 and in which Ms Omar stated that she had first seen him on 4 September 2019. He told the Tribunal that he could not recall seeing her or having seen the report. He was provided with a copy and asked to read it. When asked again whether he had ever been diagnosed with a mental health issue, he stated that he could not recall.

41. The applicant also told the Tribunal that he could not recall taking any medication for depression or anxiety since 2020. Nor could he recall going to St John of God Hospital other than for courses to which he was referred by the court that dealt with his criminal charges by reference to the Mental Health Act. When asked to respond to a report referring to his being prescribed anti-depressant medication, he stated he could not recall taking anti-depressants, though he knew that he took medication for physical pain.

42. The applicant told the Tribunal that while he recalls receiving financial assistance from DVA when he was out of work, he could not recall receiving any compensation for a mental health issue. He also stated that he could not recall any of the doctors who wrote reports about him.

43. The applicant was taken to a paragraph of his statement filed in support of his Tribunal application where he said that he had been having “ongoing consultations with my psychologist which is more for peace of mind” (paragraph 47). The paragraph ends with the statement that his mental health treatment came to an end on 6 December 2021.

44. In response to that paragraph, the applicant stated:

1. He could not recall whether paragraph 47 of his statement was accurate or inaccurate. He did not prepare the statement himself but stated that his “legal representative told me to read it and sign it”.

2. He does not recall either Ms Fatima Omar or Dr Stephen Rosenman: he only recalls having done courses at St John of God.

3. He stated that he was not seeing a psychologist now. He could not recall if he was seeing one in 2023. Nor could he recall seeing one since December 2021. He could not recall seeing psychologist Fulvio di Prinzio, although in the statement provided to the Tribunal he states (at para 25): “I have been undertaking fortnightly psychological treatment sessions on a one-to-one basis with Mr Fulvio di Prinzio, psychologist of Meadowbank”.

4. He also could not recall making a claim to DVA for chronic depression in February 2025.

5. He could not explain the significance of the date 6 December 2021.

45. In response to a question from the Tribunal, the applicant stated that he had not been diagnosed as having any problems to do with memory.

46. In summary, in response to every question relating to reports in evidence from mental health professionals, he stated that he could not recall seeing that doctor; could not recall seeing a psychologist (other than having undertaken courses at St John of God), could not recall being diagnosed with a mental illness and could not recall being prescribed or taking anti-depressant medication.

47. The applicant was also taken through the various incidents that are the subject of police reports and which he sought to address in his statement. He responded as follows:

1. Event 4: 2009: after an altercation with another driver, it was discovered that the applicant had a replica gun in his car. He stated that at that time he had a “plain clothes permit” to carry firearms and the fake pistol was in his gym bag. He did not provide any evidence of having any such licence. He also stated that he had a clear recollection of that incident, despite not being able to recall things as recent as February 2025 (his claim to DVA).

2. Events 2 and 3: 2015: his dismissal from employment. He stated that he was dismissed without any proper reason but acknowledged that two people at his workplace had accused him of saying “I’m going to line you up and shoot you”. He also accepted that at some time shortly thereafter his dismissal, he saw the men at a shopping centre when he was there with his mother and they claim that he said to them: “You aren’t walking out of here alive: you are gone”. When this was put to him, he stated that while he could not recall, he would not have said that as he was with his mother.

48. The respondent asked Mr Melodia a number of questions about the January 2020 incident, which had resulted in charges being laid, his firearms licence being revoked and the applicant being made the subject of an AVO. He stated that he “had to plead guilty to “get the s 32”” (also in his statement at [22]). When asked what he understood “s 32” to mean he said he could not remember. He stated that he vaguely remembers being charged and going to court; but he did not recall reading any of the statements of his brother-in-law or of the neighbour, Mr Robson. He did not remember calling his sister and telling her he was going to come to her house and sort it out; nor threatening to bring a knife (he stated he “would not have said that”). He also says he cannot recall having an axe with him or saying: “you have three seconds to open the door I’ll smash it open”. As for the statement “you’re lucky it’s not a 45” he stated he “wouldn’t say that”. And he could not recall saying “it would be worse if I had a gun with me” or telling Mr Robson to mind his own business. He also initially denied saying: “don’t fuck with outlaw motorcycle gangs: I’ll come over without the axe” but then stated that he cannot remember talking to Mr Robson. He stated that he could not remember being charged with a number of criminal offences or being the respondent to a provisional and then final AVO. He could not recall experiencing any mental health issues.

49. On re-examination by his counsel, he stated that the claims to DVA would have been drafted by people in DVA. In response to being asked his understanding of a mental health condition, he stated that he had never known he had a mental health condition, and while he had taken medications prescribed for him, he did not know what the medication was for.

Applicant’s submissions

50. In both his written and oral submissions, the applicant relied on the fact that he had had a firearms licence since 2006 without incident; he had no prior firearms offences, and his conduct had to be considered in context. In his statement he has denied making the threats to the two men he worked with in 2015; and the risk assessment that he provided to the Tribunal states there was no risk of harm to himself or others.

51. As for the incident in January 2020, it was contended that the evidence of Mr Robson and Mr Gillian was not convincing and there was nothing more than an argument. It was also said that the police evidence was never fully tested given the manner in which the matters were dealt with by the Court.

52. It was acknowledged by his representative that the applicant had had various bouts of depression and also that he was not a good historian.

53. The applicant’s representative referred to s 11(3) and s 11(7) of the Firearms Act in relation to the specific issues of whether the applicant is a fit and proper person, and whether it is in the public interest for him to have a firearms licence. The applicant’s counsel drew particular attention to observations made by the Tribunal in EMB v Commissioner of Police [2021] NSWCATAD 247 (appeal allowed in Commissioner v EMB [2021] NSWCATAP 63) where the Tribunal had stated (at [26] and [29]) that there is no broad rule that a person serving a sentence, or found to have committed some criminal offence or engaged in criminal conduct would automatically be found not to be a fit and proper person for the purposes of s 11(3). In that decision, the Tribunal had referred to observations in Grant v Commissioner of Police [2020] NSWCATAD 158 and to Roads and Maritime Services v Rifahi [2015] NSWCATAP 43to similar effect.

54. In summary, the applicant contended that the Tribunal ought not be satisfied it is against the public interest for the applicant to be granted a firearms licence nor that he is not a fit and proper person. On the contrary, he had no convictions; no previous firearms offences and according to the risk assessment, he is stable and not a risk.

Respondent’s submissions

55. The respondent relied on the written submissions and elaborated briefly on those by reference to the oral evidence.

56. First, the respondent submitted that while it had no objection to the late produced character reference being admitted in evidence, no weight should be attributed to it as there is no indication in it that the writer is aware of the reasons for the revocation of the applicant’s firearms licence, nor of the conduct that underlay the criminal charges, nor of the applicant’s mental health issues.

57. As for the applicant’s own evidence, the respondent contended that the Tribunal should not accept his evidence unless it was supported by a document as to the truth of any proposition asserted. This included what was in the written statement. This was because:

1. The applicant had admitted he was not the author of his own written statement and when questioned about its genesis, he gave various answers as to whether/when he might have read its contents, noting that he signed the 2023 statement in January 2025 and the identical March 2025 statement in March 2025.

2. The evidence he gave orally, specifically that he cannot recall having had any mental health diagnosis, is inconsistent both with his own statement and with the material before the Tribunal. Though he answered orally that he had not (or was not aware of having been) diagnosed with depression, his own statement contradicts that proposition (referring to [24]; [59]).

3. He was unable to explain the significance of the date of 6 December 2021 in para [47] of his statement.

4. A notable inconsistency was his not recalling having seen either Dr Rosenman or Dr Omar yet stating in his written statement (at [23]) that the s 32 application was granted by the Court and he was diverted into treatment “based upon the reports of Dr Stephen Rosenman, psychiatrist and clinical psychologist Fatima Omar”.

5. Another example was his claim to have no recollection of Mr di Prinzio (referred to in the statement at [25])

58. The respondent also drew attention to the inconsistency of the applicant claiming to have a clear recollection of the 2009 incident with the replica gun but no recollection of more recent events.

58. in relation to the January 2020 incident, the applicant had stated in his oral evidence:

1. he could not recall having an axe but in his written statement he asserts clearly at [14] and [15] that he did not have a knife or a pistol.

2. He did not recall having an argument with the neighbour Mr Robson.

3. Both Mr Gillian and Mr Robson were consistent in their reports of the threats made by the applicant. They gave evidence separately but both reported that the applicant used the phrase “lucky it isn’t a gun”, and/or “it would be worse if I had a gun; lucky it isn’t a 45/38”. The respondent submitted that these are clear threats to use a firearm in the commission of an offence.

4. While the applicant either could not recall making threats to the two Ryde Council staff in 2015; and claimed that he “would not have said” what is alleged he said to them at the shopping centre as he was with his mother, the respondent submitted that it was more likely than not that those threats were made.

60. In relation to the applicant’s mental health, the respondent submitted that the risk assessment relied on by the applicant is dependent upon his acceptance of having a condition and having treatment for it (including medication). But the applicant does not accept that he has any diagnosed mental health condition. There is also evidence from Dr Morris that he was not compliant with his anti-depressant medication (at which time the applicant’s symptoms increased).

61. The respondent contends that having a mental health condition would not necessarily preclude the grant of a firearms licence. Rather, an applicant with a mental health condition would need to persuade the Tribunal that they took the condition seriously enough to seek treatment and have it under control. That is not possible where someone refuses to acknowledge the existence of a condition.

62. It was submitted that the risk assessment could not be relied upon as it was inconsistent with the evidence the applicant gave the Tribunal. If the applicant does not accept its contents (which he clearly did not in his oral evidence, in which he contradicted what was said in the risk assessment), then it was contended that the Tribunal could not give it any weight.

63. The respondent noted that the applicant was given many opportunities in the course of cross examination to correct his evidence but did not take them. In summary, the respondent submitted that the applicant is not a reliable witness and in light of the applicant’s responses which were either that he could not remember matters put to him, or that he “would not have said that”, the police evidence ought to be accepted in relation to the Ryde City Council employee incidents and the January 2020 incident.

Consideration

64. The legislative framework and some key principles established by the case law are set out above and need not be repeated. The principles are not in doubt: the only issue is their application to the facts of this case as disclosed by the evidence before the Tribunal.

Findings of fact

65. The Tribunal has considered all the documentary evidence and the oral evidence adduced at hearing and makes the following findings, noting that the findings are made on the balance of probabilities. As the NSW Court of Appeal has made clear in Joseph v Commissioner of Police [2017] NSWCA 31 at [60]:

There was no reason in principle why the Appeal Panel could not take into account matters indicating criminal conduct on Mr Joseph’s part and do so after applying a lesser standard of proof than the criminal standard (Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 at [32]-[33])

1. On 22 January 2020, the applicant threatened his brother-in law, Mr Gillian, with an axe at the home Mr Gillian shares with the applicant’s sister. In the course of that incident, the Tribunal finds that the applicant shouted at Mr Gillian stating, “you have three seconds to open the door or I will smash it open” and then caused some damage to the door with the axe. This was after the applicant had phoned his sister telling her that he was unhappy with work she had done for him and he was going to come to her house, and stating he would “bring a knife”.

2. The Tribunal finds that in the course of the January 2020 incident, the applicant threatened both Mr Gillian and Mr Gillian’s neighbour, Mr Robson, by stating to each of them that they were lucky he did not have a 45 (or 38), ie a firearm. These findings are consistent with what is stated in the police facts and with evidence given by both Mr Gillian and Mr Robson independently at the hearing. By contrast, the applicant’s denials consisted either of statements that he could not recall the incident or that he “would not have said” such a thing. The Tribunal prefers the evidence of the witnesses contained in the contemporaneous statements and confirmed at the hearing.

3. As a result of this incident, the applicant was arrested and charged with a number of offences including being “armed with intent to commit an indictable offence”; intentionally or recklessly destroy/damage property; stalk or intimidate intending to cause fear of physical or mental harm (personal violence offence). A similar stalk/intimidate (domestic violence) charge was later withdrawn.

4. The applicant pleaded guilty to the charges that were before the Court and on 26 May 2021, the charges were dismissed pursuant to then s 32(3)(a) of the Mental Health Act with conditions that the applicant attend a psychologist at St John of God Hospital; attend for treatment under the care of Dr Stephen Rosenman, St John of God, and attend at Counselling Therapy Centre for Combined Anxiety and Depression program, followed by Anger Management Program.

5. The Tribunal also finds it more probable than not that in 2015, the applicant was dismissed from his employment with Ryde City Council as a result of making threats to two employees that he was “going to line you up and shoot you”. Shortly after his dismissal, on 16 April 2015, the applicant saw the two men at West Ryde Market Place and stated “you aren’t walking out of here alive, you’re both gone”, which was reported to the police and is the subject of a COPS event record. The Tribunal considers it more probable than not that this incident also occurred as set out in the police record.

6. The Tribunal finds that the applicant was discharged from the army in November 2010 due to concerns about his mental health, as well as because of physical injuries. This finding is based upon a psychology assessment record dated 12 November 2010 which was stated as being for the purpose of assessing the applicant’s “suitability to be a soldier”. It was determined that he was not suited to be a soldier and also that he was “unreceptive to counselling”. The AAT decision dismissing his appeal from a decision about seeking compensation relating to his time in the army refers to the applicant stating in a letter accompanying his claim for compensation: “… since reading my discharge documents I realise I was medically discharged on psychiatric grounds”. The report of psychologist Ms Fatima Omar also identifies that as the cause of his discharge from the army.

7. The applicant has at various times sought compensation/income support from the DVA: this is evidenced by the unsuccessful appeals to the VRB (2012) and the AAT (2014), and the various applications to the DVA in the tender bundle referred to above, the most recent of which is an application for support claimed on the basis of “depression” (12 February 2025)

8. The applicant has been diagnosed with various mental health conditions, from at least 2011: the VRB decision in evidence refers to him being diagnosed with “adjustment disorder with depressed and anxious mood”, referring to a report from a psychiatrist dated 6 October 2011 and noting that the claim form for the matter that was before the VRB referred to “emotional problems”.

9. Since that time, as the numerous medical reports in evidence demonstrate, the applicant has had a range of diagnoses and treatment for a variety of mental health conditions. It is not necessary for the Tribunal to make a precise finding as to the nature of his condition. It is sufficient to note that there are medical reports in evidence or other references that make clear that he has been diagnosed, or has himself identified as having, mental health issues at various times in the period 2011 to February 2025.

10. The Tribunal finds that the applicant has at various times been prescribed anti-depressant medication but that he has not always been compliant with his treatment (as evidenced by reports from Dr Morris).

11. The applicant has provided false and misleading information on his 2023 and 2024 applications by answering “no” to the question “have you ever attempted suicide or self harm, or in the past 12 months being referred or treated for alcoholism, drug dependence or a mental or nervous disorder or illness” on both applications. This is expressly contrary to the extensive documentation before the Tribunal of the applicant’s mental health diagnoses and treatments.

66. The bases upon which the respondent contended that the decision ought to be affirmed is first, that the applicant is not a fit and proper person to hold a licence: Firearms Act, s 11(3); and second, that issue of the licence would be contrary to the public interest (Firearms Act, s 11(7)).

Is the Tribunal satisfied that the applicant is a fit and proper person?

67. It will be recalled that s 11(3)(a) of the Act provides that 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”.

68. There is considerable caselaw about the concept of “a fit and proper person”: as Toohey and Gaudron JJ put it in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380, which concerned whether the holder of a commercial broadcasting licence under the then Broadcasting Act 1942 (Cth) continued to be a "fit and proper person" to be the holder of such a licence:

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 … (emphasis added).

69. The context here is that of an Act where a key underlying principle is “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety” (Firearms Act, s 3(a)). Moreover, as the Appeal Panel noted in Commissioner of Police v EMB [2021] NSWCATAP 63 at [45], the Tribunal is required to form a positive state of satisfaction 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:

70. It will be apparent from the findings above that the contrast between what the applicant told the Tribunal in his evidence, with what is contained in the documentary material before the Tribunal is such that the Tribunal is unable to form the requisite positive state of satisfaction which requires it to find that granting him a firearms licence would be consistent with the “overriding need to ensure public safety”. The Tribunal is also unable to give any weight to the character reference provided by Stan Nicholas Malaxos which is dated 2 March 2025 as the writer of the reference does not evidence any familiarity with the January 2020 incident nor any of the issues that have been the subject of evidence in the Tribunal.

71. The Tribunal accepts the submission of the applicant that the mere fact that there has been some disentitling or even criminal conduct is not necessarily determinative of an application for a firearms licence. Each application must be considered in its own context and on its own facts. But in a situation where the person gives evidence that he does not recall the events that led him to be before the Court on criminal charges, and has consistently denied that he has a mental health condition, or been treated for one, the Tribunal cannot be satisfied that the applicant is a fit and proper person consistent with the “overriding need to ensure public safety”.

72. That conclusion would be sufficient to preclude the applicant from succeeding on the application before the Tribunal, but the Tribunal also finds that it would be contrary to the public interest for him to be granted a firearms licence in circumstances where he has persistently denied having any mental health issues. Not only does that lead to a finding that he provided false or misleading information on his applications, but it also negates any reliance that could be placed on the risk assessment put in evidence on the applicant’s behalf which claims he is now stable with treatment, contrary to the applicant’s own evidence. In circumstances where an applicant for a firearms licence denies having any mental health condition or being subject to mental health treatment, it would not be possible to conclude that granting him a licence would give rise to “virtually no risk”.

73. The Tribunal accepts the respondent’s argument that the risk assessment in evidence cannot be relied on since the applicant consistently denied its central premise which is that he has a mental health condition but with treatment, is currently stable. The Tribunal has referred at [22] above to the leading case law about the “public interest” in the context of s 11(7) of the Firearms Act. In light of the disparity between the applicant’s oral evidence and what is contained in the material before the Tribunal (including the applicant’s own written statement and the risk assessment), the Tribunal considers that issue of the licence would be contrary to the public interest. The decision under review must therefore be affirmed.

Order

74. The decision under review is affirmed.

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: 02 June 2025