Paul v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 196

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Paul v Commissioner of Police, NSW Police Force [2023] NSWCATAD 196

Hearing dates:

14 November 2022

Date of orders:

27 July 2023

Decision date:

27 July 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Ransome, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – refusal of application for licence – breach of safe storage requirements – whether fit and proper – public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

Bladen v Commissioner of Police, NSW Police Force [2015] NSWCATAD 240

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cusumano v Commissioner of Police [2001] NSWADT 50

Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117

Kavanagh v Commissioner of Police [2020] NSWCATAD 324

Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124

Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315

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

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

Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10

Tannous v Commissioner of Police [2011] NSWADT 116

Ward v Commissioner of Police [2000] NSWADT 28

Category:

Principal judgment

Parties:

Allan Paul (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

AW Simpson & Co Solicitors (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2022/00219028

REASONS FOR DECISION

1. This is an application by Allan Paul seeking review of a decision made by the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (the Firearms Act) to refuse his application for a category AB firearms licence.

2. Mr Paul had held a category AB firearms licence which was revoked on 14 February 2019 following an incident where police allege he attempted to commit suicide. On 27 May 2021 Mr Paul applied for a new firearms licence. In the relevant section of the application form he indicated that he had never had a firearms licence suspended or revoked. Mr Paul’s application for the licence was refused on the basis that it is not in the public interest for him to hold a firearms licence in light of concerns about his mental health which had not been allayed by medical evidence and because he had provided false information about the revocation of a previous licence.

3. Following an internal review which affirmed the decision, Mr Paul sought review of the refusal decision by the Tribunal.

4. The Commissioner submits that it is not in the public interest for Mr Paul to hold a firearms licence as the Tribunal could not be satisfied he would exercise control over firearms in light of his history of suicidal ideation and mental illness. In addition, he has not provided sufficient medical evidence to counter those concerns. Furthermore, he has displayed a lack of candour at best and provided false information at worst in support of his application.

5. Mr Paul states that he is not a risk to public safety and there are no public interest concerns with respect to him. He states he has never attempted suicide and is mentally stable. He also states he made a mistake on the application form and apologises for that fact.

The application for review

6. The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act).

7. Section 75 of the Firearms Act confers jurisdiction on the Tribunal to review certain decisions including a decision to revoke a firearms licence.

8. In determining an application for administrative review, s 63 of the ADR Act provides that this Tribunal is to decide what “the correct and preferable decision” is having regard to “any relevant factual material, and any applicable written or unwritten law”. It is well established that the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before it at the time of the review: see, e.g., Tannous v Commissioner of Police [2011] NSWADT 116 at [25]. In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution, or remit the matter for reconsideration by the administrator: ADR Act, s 63(3).

9. Under s 38(2) of the Civil and Administrative Tribunal Act 2013, 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. The standard of proof that applies is the civil standard, that is, on the balance of probabilities. There is no onus proof: Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [28]-[34].

Evidence before the Tribunal

10. Mr Paul relies upon a statement made by him on 23 August 2022. He also relies on:

• reports by Dr Russell King, GP dated 2 August 2021 and 22 September 2022;

• a report by Dianne Gramp, Psychologist dated 29 August 2022;

• a report by Debra Warren, Psychologist dated 27 May 2019;

• a report by Debra Kahiiza, Psychologist dated 29 July 2021; and

• references from Andrew McKinley, Dr F Geoffrey Jones and Craig Wilson.

11. The Commissioner relied on the following material:

• documents lodged pursuant s 58 of the ADR Act;

• an affidavit of Senior Constable Andrew Killen dated 27 October 2022; and

• medical records from Dr Russell King’s practice and medical records from the practice of Centacare New England North West.

12. Mr Paul gave oral evidence at the hearing, as did Senior Constable Killen.

The relevant law

13. Two of the underlying principles of the Firearms Act are:

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

2. to improve public safety:

1. by imposing strict controls on the possession and use of firearms, and

2. by promoting the safe and responsible storage and use of firearms.

14. Section 11(4) of the Firearms Act provides:

(4) … 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.

15. The Commissioner is given a broad power to refuse or to revoke licences, including if it is not in the public interest for the person to hold the licence. The Tribunal, in determining applications such as in this matter, is required to exercise its discretion in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2011] NSWADT 50 at [23].

16. It has been said that in considering matters under the Firearms Act public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218; Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134 at [46]. The interest of an applicant in obtaining or retaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276.

The public interest

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

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

18. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel considered that the “public interest” is an inherently broad concept providing the decision maker with the ability to have regard to a wide range of factors in exercising the discretion to refuse or revoke a firearms licence. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that:

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

19. In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23] the Tribunal stated:

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

20. Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community’s interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety:

“27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

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

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

22. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] – [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco vCommissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

23. Under s 70 of the Firearms Act it is an offence for a person, in or in connection with an application under that Act, to make a statement or provide information that the person knows is false or misleading in a material particular. As was noted by the Tribunal in Bladen v Commissioner of Police, NSW Police Force [2015] NSWCATAD 240 at [52], the provision of accurate information is fundamental to an application and to providing the Commissioner with relevant information upon which a decision to grant or refuse a licence may be based. The Tribunal went on to state at [53]:

The system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act.

Evidence

24. Mr Paul has had firearms for many years and was first issued with a firearms licence in 1998 for the genuine reason of primary production. Mr Paul states that at the present time he runs over 100 head of cattle and has some sheep. He states that he needs his firearms licence to be able to control vermin on his property and to put down injured animals. Mr Paul states that, as he currently does not have a licence, he asks a neighbour to put down any sick cattle or sheep. If the neighbour is not available, he is then forced to put down sick animals in an inhumane way. Mr Paul states this is not good farming practice and he finds that, without his gun licence, his farm is running inadequately.

25. The primary matter leading to the revocation of Mr Paul’s licence was events which occurred on 14 February 2019. Mr Paul’s history of depression is also said by the Commissioner to be a factor in that regard. The Commissioner also refers to Mr Paul’s dishonesty in filling out the application for a firearms licence.

Incident on 14 February 2019

26. Mr Paul and his then wife separated at the end of 2018. Mr Paul acknowledges he felt betrayed, hurt and depressed as his former wife had been having an affair. At about 2:30 pm on 14 February 2019 Senior Constable Killen and another officer attended the rural property where Mr Paul lived at the request of Mr Paul’s former wife who asked police to conduct a welfare check. Mrs Paul’s call to police had been prompted by Mr Paul sending a message to his son in Brisbane which contained a copy of what was said to be his will; by Mr Paul sending a message to Mrs Paul at around noon on 14 February 2019 saying “I will always love you”; that these messages seemed out of character, and, Mr Paul did not respond to calls or messages from friends.

27. When police arrived at Mr Paul’s property they saw a car in the carport with a hose connected to the exhaust pipe. The other end of the hose had been fed through the car window and all windows of the car were taped up. No one was in the car.

28. Senior Constable Killen states that Mr Paul answered the door when police knocked at the farmhouse. Mr Paul told police he did not wish to speak to them and that he had found out that his former wife had cheated on him. He stated “there's no point going on”. When asked the whereabouts of his firearms, Mr Paul stated that he had thrown the key to the safe in the dam so he couldn't access them. He would not tell police where the firearms were. An ambulance was called and Mr Paul was transported to hospital in accordance with s 22 of the Mental Health Act 2007. Mr Paul’s firearms licence was suspended and his firearms were later seized as Mrs Paul had a key to the gun safe, being a licenced firearms holder herself. On 16 February 2019 Mr Paul surrendered his firearms licence at the police station. The licence was revoked on 19 February 2019.

29. In a statement filed in these proceedings dated 23 August 2022, Mr Paul states that the message he sent his son in Brisbane was not really a will. He said that he told his son that, if anything happened to him, a certain amount of money went to him and he told him the detail of where his cattle were and what he was to do. He said he was just telling him what he wanted if he died as he didn't have a will. Mr Paul said he wasn't suffering from depression but was just trying to work out what had happened and why and how he could run his farm and pay the bills. He said he went inward and kept to himself for some time which was why he did not answer his phone.

30. In relation to the hose connected to the exhaust pipe of his car, in his August 2022 statement Mr Paul stated that his dogs had been sleeping in his car and there were fleas in the carpets and seats. He said that he had sprayed the inside of the car with flea and spider spray and had used flea bombs. He then put the hose in the car to fill it with gas which killed all the fleas and made the car driveable. Mr Paul denied that he had tried to kill himself. He agrees that he told the police he didn't need to speak to them and that he was angry and belligerent towards them. He said that the police harassed him and told him he would get his gun licence back. He also states that he did not want the police to take his guns and was therefore evasive.

31. Senior Constable Killen was asked at the hearing about the events of 14 February 2019. He confirmed the contents of the COPS Event report and his affidavit. When asked about Mr Paul’s explanation that the hose was connected to the car as he was trying to rid it of fleas, Senior Constable Killen said that he did not accept that statement as being true. He said that he did not recall seeing cans of flea or spider spray in the car. Senior Constable Killen also stated that he did not harass Mr Paul and did not tell him he would get his gun licence back.

32. A mental health assessment was conducted at the hospital on the evening of 14 February 2019. According to the assessment Mr Paul told hospital staff that his wife had left him two days ago as she was with another man. He said that he got home from his shift at the mine the day before and stewed over it all day. He drank some alcohol and “felt like ending it”. He said he sent messages and set the car up and then sat in front of the TV and fell asleep. When he woke that morning he didn't know what to do. He was reported to regret what he had done and planned to see his doctor. Mr Paul denied any previous suicidal thoughts or behaviours. He stated during the assessment that he had seen his GP, Dr King, the previous week as he was a bit down. He had commenced taking antidepressant medication and had been referred to a mental health professional. Mr Paul also said that his son was travelling down from Brisbane to be with him.

33. At the hearing Mr Paul denied that he made various statements about the events of 14 February 2019 as recorded in the mental health assessment. When questioned, he agreed he was suffering from depression at the time. This is in contrast to what he said in his August 2022 statement filed in these proceedings where he said he was not suffering from depression at that time. Mr Paul also disputed a statement by Dr King in his consultation notes for 19 February 2019 that Mr Paul had been admitted to hospital as he was “suicidal”. Dr King also reported that he had been telephoned by the mental health nurse at the hospital who expressed ongoing concerns about Mr Paul’s risk.

34. When questioned at the hearing about why he did not provide the explanation that he was flea bombing his car to police on 14 February 2019 or during the mental health assessment at the hospital, Mr Paul said nobody asked him. He denied that the explanation was untrue and denied he intended to harm himself.

Medical reports

35. Mr Paul relies upon several medical reports in these proceedings – two from Dr King, one from Ms Warren, one from Debra Kakiiza, Psychologist and one from Dianne Gramp, Psychologist. As already noted and referred to, the Commissioner provided medical records for Mr Paul obtained under summons from Dr King and Centacare (predominantly Ms Warren’s records).

36. Dr King provided a letter dated 9 August 2021 in which he stated that he wished to support Mr Paul’s application to regain a gun licence. He said that the mental health problems Mr Paul had suffered in the past are fully resolved.

37. Dr King provided a more fulsome report dated 22 September 2022 in support of Mr Paul’s application for a firearms licence. Dr King sets out Mr Paul’s history and notes that he has previously sought help to manage his depression, taken antidepressants and consulted a psychologist. In his opinion, Mr Paul has excellent insight into his predilection to develop depression. Dr King stated that Mr Paul was in good health physically and psychologically and he did not believe that he constitutes a risk to himself or to others with firearms. Dr King was supportive of Mr Paul’s application to have his firearms licence reinstated.

35. In his August 2022 statement Mr Paul says that he saw Dr King in June 2022 at which time, when discussing Mr Paul’s firearms licence, Dr King said, “It is ridiculous. You are mentally stable and you have a need for a gun on the farm.” The Commissioner submits this statement should be given little weight.

36. Mr Paul states that his life is now dramatically different to the times when he had issues with his previous partners in 2002 and 2018. Mr Paul has a new partner whom he describes as extremely caring and loving.

37. As set out above, Mr Paul attended counselling sessions with Ms Warren in 2017 and following the 14 February 2019 incident. Mr Paul relies on a report from Ms Warren dated 27 May 2019 in which she states that Mr Paul attended five counselling sessions. She goes on to state that Mr Paul had reported significant improvement in wellbeing and did not feel the need for any further sessions. She notes that his improvement in mood was very evident in the final session conducted on 27 May 2019. Ms Warren also stated that Mr Paul had the support of a number of family and friends who have assisted in dealing with the (then) recent long term relationship breakdown that contributed to his low mood. In his statement Mr Paul said that Ms Warren told him that she did not feel there was a need for him to continue and that he had made good progress in getting past the ordeal with his wife.

38. Another psychologist, Debra Kakiiza, who worked at the same centre as Ms Warren provided a report in July 2021 stating that she had seen Mr Paul in 2019 but was unable to give any recent opinion as she had not seen Mr Paul for two years.

39. Mr Paul has provided a report from Dianne Gramp, a Senior Psychologist at Positive Mind Works. Ms Gramp states that Mr Paul attended for extended testing and assessment on 29 August 2022 for the purpose of obtaining a report for his firearms licence. The report states that Mr Paul told Ms Gramp that his difficulties with his firearms licence began in October 2019 when he was going through a marriage breakdown. She noted that Dr King prescribed an antidepressant for three months and he saw a psychologist for six visits to cope with the breakdown. Mr Paul told Ms Gramp that police visited him for a welfare check as a friend was concerned that he was not coping with his marital breakdown which was compounded by drought, fires and stock destruction. He told her that, as his licence was at his mining work site in Narrabri, he could not show it to the officers and as a result, the police confiscated his firearms. He told her that when he later presented his licence to police he found out his licence was suspended.

40. In her report, based upon the history given to her by Mr Paul and her assessments, Ms Gramp concluded that there was no mental illness that affects Mr Paul’s behaviour, judgement and suitability to possess and use firearms. She also states that there is no foreseeable risk of Mr Paul using or allowing the use of a firearm to harm himself.

General mental health

44. A COPS Event records that on 18 April 2002 police attended the property where Mr Paul was then living following reports by his previous wife and a family friend that they had each been contacted by him and he was depressed and agitated and making threats of self-harm. It was reported that he had given his favourite dog to a friend to give to his wife. At the hearing Mr Paul denied that he had been agitated or crying or that he made any threats of self-harm. At the time Mr Paul was taken to the police station and a mental health assessment did not reveal any issues of concern.

45. Mr Paul stated in 2005 in relation to a previous revocation of his licence that at the time of the 2002 incident his marriage was in difficulty and he was also in financial difficulties. He said that he made no threat of self-harm but his then wife, out of spite, made the allegation. He said his firearms were seized but were returned after a week as there was no evidence to substantiate his wife's claim. He sought medical advice because of the stress suffered at the time and his doctor prescribed him some medication which he took for only a couple of days as his stress condition ameliorated of its own accord. He said he did not suffer from depression at any time.

46. When Mr Paul’s firearms licence was revoked in 2005, the 2002 incident did not form the basis of the decision and, indeed, the Commissioner found that there was no evidence to conclude his mental condition would pose a risk to public safety. (I note that the 2005 revocation was set aside by the Tribunal and the decision was not based on any mental health issues with respect to Mr Paul.) In these proceedings, the Commissioner describes this incident as a “depressive episode”. This would appear to be taken from a letter dated 22 September 2022 written by Mr Paul’s GP, Dr King, to Mr Paul’s legal representative. In that letter Dr King states that Mr Paul “has had previous depressive episodes … including when his first marriage broke down”.

47. In the letter Dr King also refers to a depressive episode in 2013 “due to situational factors” and that Mr Paul had “lost his zest for life”. Records from Dr King’s medical practice show that he was prescribed an antidepressant at the time.

48. In 2017 Mr Paul was referred for psychological services under a Mental Health Care Plan and was seen by Psychologist, Debra Warren, on nine occasions. Letters from Ms Warren to Dr King state that Mr Paul was referred to her for depression. Her clinical notes produced under summons state that he had high levels of suicidal ideation and two suicide plans, one of which involved shooting himself. During a later session with Ms Warren, Mr Paul reported that suicidal feelings were returning but he was unable to identify any trigger and it may be a habitual feeling. At the hearing Mr Paul said he could not remember what he had told Ms Warren but did not agree that he told her he had ongoing feelings of suicidal thoughts.

49. Dr Warren states in her report to Dr King dated 12 December 2017 that the nine sessions with Mr Paul focussed on self-care, psycho-education and developing self-management strategies through cognitive behavioural therapy. She stated that the sessions ended as Mr Paul did not feel the need for any further sessions at the time. Ms Warren reported that she did not believe any further changes were required to his treatment plan at that stage.

50. The Commissioner refers to a consultation note by Dr King when he saw Mr Paul on 4 February 2019. Dr King states that Mr Paul told him that he would like to go back on Zoloft as he “feels anxiety and depression reemerging (sic) over the past month.” When questioned at the hearing about whether he had previously been prescribed Zoloft (an anti-depressant), Mr Paul said he had taken it briefly but could not remember when. The next day, 5 February 2019, Dr King referred Mr Paul to Centacare for psychological services under a Mental Health Plan and noted Mr Paul was finding it “hard to function” and had asked to restart sertraline (Zoloft) which he had “not taken for 12 months”. Dr King also noted that Mr Paul had a low but present risk of self-harm.

51. Following the referral by Dr King, Mr Paul attended five counselling sessions with Ms Warren with the same focus as in the 2017 sessions. Early in the sessions Ms Warren described Mr Paul as struggling with suicidal thoughts and loneliness. At the hearing Mr Paul said he was struggling with life but did not admit to having had suicidal thoughts. The sessions ended when Mr Paul reported a significant improvement in wellbeing and did not feel the need for any further sessions. Ms Warren again reported that she did not believe any further changes were required to his treatment plan at that stage.

52. In September 2020 Mr Paul saw Dr King and told him that his depression was re-emerging as a result of a bitter property settlement with his former wife. He was again prescribed an antidepressant. Mr Paul says that he does not remember telling Dr King that his depression was re-emerging and does not remember taking Zoloft at this time.

53. In mid-2022 Dr King again referred Mr Paul for counselling under a Mental Health Plan. In the referral Dr King states that in 2019 Mr Paul was admitted as a voluntary patient with suicidal ideations after a marriage breakdown. Dr King referred to Mr Paul being much improved but stated that it would be a good idea if Mr Paul had regular contact with the psychologist to help with his psychological self-care. Dr King stated that Mr Paul has had previous episodes of depression in his life and “is prone to decompensate when things go wrong”. However, the centre to which Mr Paul was referred (where Ms Warren worked) advised that there was a considerable waitlist and Dr King might consider alternatives. He was thus not seen by Ms Warren at that time.

54. Mr Paul states that he has not seen Ms Warren nor any other counsellor since May 2019. When questioned at the hearing he disagreed that he has a tendency to exacerbate things in his mind when things go wrong or that his depressive symptoms get worse at these times.

References

55. Mr Paul provided references from two men who are his friends. Both speak very highly of Mr Paul and state that he is careful with firearms. One referee, Dr F Geoffrey Jones, states that Mr Paul has dealt with the issues concerning his former wife and does not, and never did, pose a threat to himself or others.

Dishonesty in filling out licence application

56. When completing the application for a firearms licence, Mr Paul answered “no” to the question whether he had ever had his licence suspended or revoked. In his August 2022 statement Mr Paul said that he does not read and write well and either wasn’t thinking clearly or didn’t read the question properly when he answered “no”. At the hearing Mr Paul said that he did not fill out the form himself as he is unable to do it online. He said that a friend helped him and submitted the application for him. Mr Paul states that there would be no advantage in saying that he had never had a licence suspended or revoked when the fact that he had was known to police.

57. The Commissioner states that Mr Paul had supplied inaccurate information to police previously and, in the Tribunal proceedings in 2006, relied upon his lack of literacy as an excuse for his conduct. The Commissioner states that, in these circumstances, Mr Paul was on notice that he must be candid in the information supplied to her.

58. In the previous proceedings before the Tribunal in 2006 concerning revocation of Mr Paul’s licence, issues in relation to his honesty in his dealings with the Firearms Registry formed part of the reasons given by the Commissioner for revocation of the licence. The Tribunal found that, while Mr Paul had provided some inaccurate information in a letter which had been written by someone else on his behalf, he did do so with any intention to mislead or deceive. Overall, the Tribunal found Mr Paul to be a genuine and honest witness.

Submissions

59. The parties, naturally, have made conflicting submissions in these proceedings. Mr Paul agrees he was depressed in February 2019 after separating from his wife, but denies he intended to kill himself. He provides an alternative explanation for why the hose was connected to the car and states the police were mistaken about his situation at the time. In general he submits that, apart from the times in 2017 and 2019 when he saw Ms Warren, he has no history of depression or any form of mental illness. He refers particularly to the report of Dr King in September 2022 and that of Ms Gramp to support that conclusion.

60. Mr Paul states that he has never in fact attempted suicide and in 2017 and 2019 he became depressed when his relationship broke down. He also states he is now in a stable relationship and his life is considerably different. Mr Paul also notes that the relevant event occurred in February 2019, over four years ago and occurred in circumstances that no longer exist. Mr Paul submits that there is no indication that he would mishandle firearms.

61. In relation to the issue of Mr Paul answering “no” to the question of whether he had ever had a forearms licence suspended or revoked, Mr Paul states he made a mistake and notes he does not read or write well. He apologises and states he did not intend to be deceptive.

62. The Commissioner submits that the Tribunal could not be satisfied that Mr Paul would exercise control over firearms. She submits that the medical evidence in fact shows that Mr Paul has a long history of depression and suicidal ideation dating back to 2002. The Commissioner submits that Mr Paul’s explanation that he set up the car to kill fleas is implausible and ought to be rejected. The Commissioner casts considerable doubt on Mr Paul's credibility in general. In relation to the medical evidence supplied by Mr Paul, the Commissioner states that most of that evidence should be given little or no weight as the opinions expressed are either not based on complete information or the writer is not qualified to give the opinion.

63. The Commissioner submits that Mr Paul’s persistent history of depression and suicidal ideation and the lack of any evidence of successful treatment indicate that he presents a risk to public safety.

64. The Commissioner submits that in relation to dishonesty in filling out the application form, Mr Paul seeks to excuse and minimise the seriousness of his answer when he ought to have been aware of the gravity of providing untruthful answers, particularly when the same issue had arisen in previous proceedings. She submits that the answer of “no” can only be viewed as dishonest and false.

Conclusions

65. What is at issue in these proceedings is whether it is in the public interest for Mr Paul to hold a firearms licence. I accept that Mr Paul has a need for a licence to use firearms on his property from time to time, particularly to euthanise sick or injured animals, but that is not an overwhelming consideration. The primary consideration is the need to ensure public safety.

66. I also accept that Mr Paul has no criminal history and nor is there any history of him using firearms inappropriately. The issues raised in this application go to any risk to public safety, including the safety of Mr Paul himself, due to mental health concerns. In addition, the application raises issues of Mr Paul’s suitability to hold a firearms licence on what might be termed character grounds, particularly concerning his honesty.

67. The medical records which the Commissioner obtained under summons demonstrate that Mr Paul has struggled with depression from time to time since at least 2002. While the evidence does not point conclusively to Mr Paul making threats of self-harm in 2002, it does suggest he struggled with dealing with his personal circumstances at the time. Dr King’s letter of 22 September 2022 indicates that he was prescribed antidepressant medication at that time.

68. From the medical records it seems that Mr Paul did not suffer a further depressive episode until 2013 when, according to Dr King, he was again prescribed an antidepressant. Dr King states that this episode was “due to situational factors”. Dr King also states that Mr Paul and “lost his zest for life”. While this does not suggest that Mr Paul considered suicide in 2013, it is clear that his situation worsened in 2017 at which time he was referred to Ms Warren. Ms Warren reports that at this time he had high levels of suicidal ideation and had formed two suicide plans, one of which involved shooting himself. This is clearly a matter of concern. I note that Ms Warren states that the sessions ended because Mr Paul did not feel a need for further sessions at the time.

69. Mr Paul’s depression escalated in February 2019 at the time of the breakdown of his marriage. Dr King refers to Mr Paul having suicidal ideation at this time, as does Ms Warren. This period culminated in the events of 14 February 2019 and Mr Paul’s subsequent hospital admission. There then followed further sessions with Ms Warren.

70. As set out above, Mr Paul told Dr King in September 2020 that his depression was re-emerging and he again was prescribed an antidepressant. In June 2022 Dr King again referred Mr Paul for counselling under a Mental Health Plan. At the time Dr King stated that Mr Paul “is prone to decompensate when things go wrong”.

71. In my view, Mr Paul has been less than candid about his history of depression. At the hearing he downplayed past episodes, denied taking medication or said he only took medication for a short time or that he could not remember taking medication. Despite both Dr King and Ms Warren referring to suicidal ideations, Mr Paul strenuously denied any such feelings. I accept that Mr Paul has generally sought help when he has been overwhelmed. However, his evidence in these proceedings does not indicate that he has a good understanding of his mental health needs.

72. The events of 14 February 2019 were, in my view, serious. Mr Paul seeks to dispute the police account of events but was unable to demonstrate that Senior Constable Killen’s report was in error or untruthful. Mr Paul’s explanation of the setup with his car - that he had attached the hose and sealed the car to kill fleas - is simply unbelievable. He did not give this explanation to police even though it was apparent there were concerns for his wellbeing. He also did not provide this explanation at the hospital during the mental health assessment. Indeed, he stated that he had drank some alcohol and felt like ending it. He said that he sent messages to his wife and son and then set up the car and fell asleep in front of the television. He did not mention fleas and is reported to have said that when he woke the next day he regretted what he had done. In the context of having been admitted to hospital because of mental health concerns, there is no logical reason why Mr Paul did not give the flea explanation to hospital staff who were assessing him. His explanation that he didn’t mention fleas because nobody asked him, is not credible.

73. Mr Paul seeks to rely on reports from Dr King, Ms Warren and Ms Gramp. Dr King seems to have treated Mr Paul for some years and, according to Mr Paul, knows him well. As set out above, in his report dated 22 September 2022 Dr King states that Mr Paul has excellent insight into his predilection to develop depression. He further states that Mr Paul is in good health physically and psychologically and that he does not believe he constitutes a risk to himself or others with firearms. Unfortunately, Dr King does not set out the full history of Mr Paul’s depressive episodes, including threats of self-harm, and does not explain why only a few months earlier he had referred him for psychological counselling under a Mental Health Plan. At that time Dr King noted that Mr Paul “is prone to decompensate when things go wrong”.

74. While Dr King may have been of the opinion Mr Paul was well in September 2022, the fact that he has had a series of episodes over the years and does not cope well when things go wrong, is of considerable concern.

75. Ms Warren’s report refers to the five sessions Mr Paul attended between 20 February 2019 and 27 May 2019. The Commissioner points out that the records produced under summons suggest that the detail of the 14 February 2019 incident was not disclosed to Ms Warren during these sessions. It seems she was aware of the breakup of Mr Paul’s marriage and that he had had suicidal thoughts, but was not informed of the elaborate car set up. As pointed out by the Commissioner, Ms Warren does not refer to any ongoing treatment plan for Mr Paul to assist with management of his mental health in the future, particularly in the context of suicidal ideation.

76. Mr Paul obtained a report from Ms Gramp for the purposes of his firearms application. Mr Paul relies upon this report to submit that there are no concerns with his mental health. The report, however, is inadequate. There is no indication in the report that Mr Paul informed Ms Gramp of the detail of the circumstances which led to revocation of his licence, including that police were concerned about a hose connected to his car, his messages to his son and then wife and his statements allegedly made at the time that there was “no point going on”. In fact, the report indicates that Mr Paul told her that the reason his firearms were confiscated was because he had left his licence at his work site in Narrabri. Ms Gramp also does not mention any other occasions on which Mr Paul was prescribed medication or referred for counselling. In these circumstances I give the report very little weight.

65. In my view, the medical evidence provided by Mr Paul for these proceedings does not lead me to a conclusion that mental health issues are not of significance in determining his application. As noted above, it is unclear why Dr King states that Mr Paul does not pose a risk to himself or others given his history. In particular, he does not describe any treatment plan which has been put in place to mitigate risk. Similarly, Ms Warren does not offer a reasoned opinion on future risk. Ms Gramp’s report, as previously noted, is inadequate for these purposes.

66. Mr Paul’s treatment relies upon self-reporting and the support of family. There may well be circumstances where such an approach can adequately manage episodic depression and suicidal ideation, although that would clearly depend on the circumstances. Here, Mr Paul has shown a tendency to become overwhelmed by difficult situations in the past and there is not evidence before me that there has been any change on that regard. While he is currently stable, that situation could change and his ability to self-identify any deterioration may be compromised.

67. In this regard, I am particularly concerned by Mr Paul’s lack of candour about his mental health. In these proceedings he has sought to downplay any mental health concerns to the point where he has given untruthful evidence about the events of 14 February 2019 and denied he has been prescribed anti-depressant medications in the past. In general, he has sought to conceal his past mental health issues and his behaviour. This does not give me confidence that he would deal appropriately with any future episodes. While the Tribunal has previously found Mr Paul to be an honest witness, I do not find him to be so.

68. Mr Paul’s lack of candour and honesty is also evident in the response he gave to the question on the application form about whether he had ever had a firearms licence suspended or revoked. Mr Paul stated that he doesn’t read and write well or didn’t read the question properly when he answered “no”. At the hearing he sought to blame the person who helped him fill out the online form.

69. In circumstances where Mr Paul has previously disputed revocation of his licence for the same reason, that is, supplying incorrect information on the form, it would be expected that he would be careful not to repeat his past mistakes. I do not accept that Mr Paul was unaware of the seriousness of his conduct in answering the question incorrectly. If he was so unaware, it strongly indicates that he does not take his responsibility to provide correct information seriously.

70. Overall, while the evidence suggests that Mr Paul is currently stable, that evidence is very unsatisfactory when it comes to assessing future risk and does not in fact permit a clear assessment of risk: see Kavanagh v Commissioner of Police [2020] NSWCATAD 324 at [94]. There remains a risk that Mr Paul may have further episodes of depression with suicidal ideation with no clear plan of how to deal with that situation. Self-reporting, without anything more, may not be sufficient to deal with the situation in the future. While the Tribunal can never be completely satisfied that there is no risk in an applicant having a firearms licence, in the circumstances, I am unable to find with confidence on all the evidence that granting Mr Paul a licence would entail virtually no risk to public safety, including his own safety.

71. I have also taken into account Mr Paul’s false statements on the application form and in these proceedings, along with his lack of candour about his condition. Accordingly, I find on all the evidence that it is not presently in the public interest for Mr Paul to be issued with a firearms licence. The correct and preferable decision must therefore be that the decision under review is affirmed.

Orders

1. 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: 27 July 2023