Robinson v Commissioner of Police, New South Wales Police Force

[2022] NSWCATAD 251

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Robinson v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 251

Hearing dates:

22 April 2022

Date of orders:

26 July 2022

Decision date:

26 July 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

(1) The decision to revoke the Applicant’s Category AB Firearms Licence is set aside.

(2) As a result of Order (1), the Commissioner is to reinstate the applicant’s Category AB Firearms Licence within 28 days of the publication of these reasons.

Catchwords:

ADMINISTRATIVE LAW - Firearms –– objects of legislation – public interest.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11

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

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

Hunt v Commissioner of Police [2021] NSWCATAD 58

Leatham v Commissioner of Police [2021] NSWCATAD 121

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

Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Garret Owen Robinson (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
T Dixon (Applicant)

Solicitors:
Mills Oakley Solicitors (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2021/00141375

Publication restriction:

Nil

[THIS DECISION HAS BEEN AMENDED]

Reasons for decision

What these proceedings are about

1. These proceedings concern the Commissioner of Police’s decision to revoke the applicant’s Category AB Firearms licence application on 20 August 2020 and the decision on Internal Review on 21 April 2021 to affirm that decision.

2. The revocation was on the basis that the Commissioner believed that it was not in the public interest for the applicant to hold a firearms licence. Those matters concerned a discrepancy between custody records relating to the applicant in 2005 and 2007 whereby he indicated that he had previously attempted to take his own life, and what was declared on his firearm’s application in 2017 where he had answered no to the question:

Have you ever attempted suicide or self-harm, or in the last 12 months been referred or treated for alcoholism, drug dependency, or a mental or nervous disorder or illness?

3. In issuing the Notice of Revocation the Commissioner’s delegate noted that prior attempts to take one’s life provided reasonable cause to conclude that the maintenance of the Licence would pose an unacceptable risk to public safety (including the applicant’s own safety) if he were authorised to use firearms.

4. On Internal Review the Commissioner’s delegate upheld the original decision to revoke the licence. The reviewer found a ‘vast discrepancy’ between what was recorded in the custody records (concerning self-harm attempts) and what was recorded in the applicant’s firearms applications and material submitted on internal review. The reviewer made a finding that the custody officers had no basis to provide a false account of the applicant’s answers, whereas in seeking to obtain (and now have reinstated a firearms licence) the reviewer found that the applicant did have a vested interest in providing alternate information concerning no history of self-harm attempts. It appears for that reasons that the reviewer preferred material recorded in the custody records and found that they could not be confident that the issuing of the licence would be without a real and appreciable risk to public safety.

5. For the reasons which follow, the Tribunal has determined upon review based on all of the evidence and material before it, that the correct and preferable decision it is to set aside the decision of the Commissioner.

Introduction

6. The applicant in these proceedings is Mr Garrett Robinson (Mr Robinson). The respondent is the Commissioner of Police NSW Police Force (the Commissioner). The Commissioner’s delegate formed the view that it was not in the public interest for Mr Robinson hold a Firearms Licence.

7. The Commissioner arrived at that decision based on the matters summarised above at [2] – [4]. Essentially the Commissioner formed the view that Mr Robinson had attempted suicide on at least more than one occasion and as a result access to firearms would pose a risk to public safety (apparently because the self-harm history indicates underlying mental health issues) and that access to firearms would also pose a risk to Mr Robinson with the history accepted by the Commissioner.

8. Mr Robinson denies any history of self-harm or suicide attempts including any history of diagnosis of treatment for mental health conditions. In respect of the evidence relied upon by the Commissioner (the custody records from 2005 and 2007), Mr Robinson denies the accuracy of the relevant records and denies providing information consistent with such entries. As a result, Mr Robinson refutes that his possession of a firearms licence would pose a real and appreciable risk to public safety, and he therefore disagrees with the conclusions of the Commissioner.

Background

9. On 20 September 2010 Police issued a category AB firearms licence to Mr Robinson. The licence had been sought for the genuine reason of ‘Recreational Hunting / Vermin Control’ and was supported by evidence of permission to shoot on rural land. This was the first time that Mr Robinson had applied for and been issued with a firearms licence.

10. A safe keeping inspection of Mr Robinson’s firearms storage arrangements was completed satisfactorily on 20 September 2012. Renewal applications for the Category AB Firearms Licences were lodged successfully by Mr Robinson in September 2015 and October 2017. On each application (including the initial application) Mr Robinson like all applicants was required to complete a questionnaire which concluded with a declaration that the answers were true and correct.

11. For reasons not clear to the Tribunal the Commissioner had cause to review their holdings in respect of Mr Robinson. Whether this review arose in the context of his firearms licence, or some other reason is not clear. However, having identified records from two instances when Mr Robinson was in custody some years prior to his initial licence application, the Commissioner being also responsible for the issuing of Firearms Licences, had cause to review the issuing of the firearms licence.

12. It appears from the material before the Tribunal that Mr Robinson’s firearms licence was initially suspended on 13 August 2020. The Notice of Suspension (which is not internally reviewable) stated that the grounds for the suspension were: Not in the public interest- mental health concerns.

13. From the Notice of Revocation and Internal Review decision served on Mr Robinson, it appears that the significant basis for revoking the firearms licence was because the Commissioner accepted the veracity of the custody records over the evidence supplied directly by Mr Robinson on Internal Review. On that basis it was then open to the Commissioner to make a finding that continued access to firearms by Mr Robinson was not in the public interest.

Jurisdiction

14. The Notice of Revocation was issued under the provisions of the Firearms Act section 24. Relevantly section 24 provides:

24 Revocation of licence (cf APMC 6, 1989 Act s 36, 1990 Reg cl 27)

(1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.

(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if—

(a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or

(b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997—the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act.

(2) A licence may be revoked—

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

(b) if the licensee—

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

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

(iii) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

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

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

….

15. Clause 20 of the Firearms Regulation 2017 provides:

20 Revocation of licence—licence not in the public interest

The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

16. Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The first matter listed at s 75 concerns refusals to grant a licence application. Relevantly the section provides:

Part 8 Applications to Civil and Administrative Tribunal

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,

(b) a condition imposed by the Commissioner on a licence or permit issued to the person,

(c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order),

(d)…

(e)…

(f)…

(g)…

(Emphasis added)

17. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

18. The Tribunal has jurisdiction under the Firearms Act as noted at [16] above.

19. As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal’s function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

The decision under review

20. In the Internal Review the senior delegate made a number of findings of fact including that Mr Robinson was:

• In Police custody on 3 August 2005 for a serious traffic offence and was asked as part of a custodial regime: ‘Have you tried to take your life?’ to which Mr Robinson answered: ‘Yes, eight separate occasions?’

• In Police custody on 26 January 2007 for another serious traffic offence and was asked as part of a custodial regime: ‘Have you tried to take your life?’ to which Mr Robinson answered ‘Yes. One year ago carbon monoxide poisoning.’

• That in his application for a firearms licence lodged on 2 August 2010, 22 September 2015 and 11 October 2017 there was no disclosure in the personal history sections of those applications that Mr Robinson had ever attempted suicide or self-harm.

• That on 30 July 200 the licence was suspended on the grounds of public interest due to mental health concerns. The Notice of Suspension being served by Police on 13 August 2020.

• That on 20 August 2020 the Firearms Licence was revoked due to Mr Robinson’s admissions of attempting suicide while in Police custody in 2005 and 2007.

21. As noted above the Internal Review was lodged on 16 September 2020 and completed over seven months later on 21 April 2021.

Administrative Review by the Tribunal

22. Mr Robinson filed his application for Administrative Review on 19 May 2021. The application was filed just within the period provided to lodge an administrative review application with the Tribunal.

What issues do these proceedings raise for determination?

23. On my assessment the issues are as set out by the Commissioners delegate:

• Is it in the public interest for the applicant to hold a licence?

24. This issue will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law. The key matters will involve:

1. an assessment of whether the Commissioner’s findings of fact should be adopted concerning the reported admissions of self-harm and if so, whether those matters are sufficient to maintain a finding that it is not in the public interest for Mr Robinson to have access to firearms, or

2. whether those findings about self-harm can be or cannot be maintained, and moreover whether the totality of the evidence establishes that there is, or is not, a basis to make a finding that mental health concerns persist, such as to establish that it is not in the public interest that Mr Robinson hold a Firearm’s Licence.

Applicant’s written evidence

• Exhibit ‘A-1’. Statement of Garrett Robinson dated 20 April 2022 (A number of paragraphs were objected to by the Respondent and some of these objections were upheld).

• Exhibit ‘A-2’: Expert Report of Dr G Smith Consultant Psychiatrist dated 23/11/2021

Respondent’s written evidence

• Exhibit ‘R-1’ Statement of S Pidgeon dated 2 February 2021.

• Exhibit ‘R-2’ Documents filed under s 58 ADR Act.

• Exhibit ‘R-3’ Material Produced under Summons Boorowa Medical Centre re: applicant’s medical records.

25. Both parties were legally represented and provided detailed written submissions and made oral submissions at hearing. Both Mr Robinson and his expert Dr Smith gave evidence and were subject to cross examination at hearing.

Mr Robinson’s evidence at hearing

26. In evidence in chief Mr Robinson adopted paragraphs [9], [11], [14] and [16] of Exhibit A-1. He told the Tribunal that he applied for a Firearms Licence to shoot foxes at his stepfather’s property. Mr Robinson said that he ticked the box on the application form concerning recreational hunting but had never acted on it.

27. Mr Robinson said that later he took on his stepfather’s stock (Sheep) and as such was responsible for vermin control in effect as a primary producer.

28. Mr Robinson said that he was a founding member of the Sporting Shooter’s Association Borrowa Branch. He said that he was now President of the Branch and a State elected Board Member of the Association.

29. In cross examination Mr Robinson was asked about the incident in Police Custody in August 2005. He said that he had sustained a prior back injury and was on pain killers. He had not been in Police custody prior. In respect of the custody management records at pages 22 and 23 of Exhibit R-2 Mr Robinson was taken through those records and the questions and answers. Mr Robinson denied any knowledge of the purported answers to the question about prior self-harm.

30. In respect of the January 2007 custodial incident, again Mr Robinson confirmed most of the details but denied any answers as recorded concerning suicide attempts or self-harm (including carbon monoxide poisoning).

31. Mr Robinson was questioned about the report / assessment by Mr Kruger-Davis which he submitted as part of the Internal Review process and was contained within the s 58 documents (Exhibit ‘R-2’). Mr Robinson denied the proposition that he may have given the custodial answers in jest. He denied again that he even gave those answers as recorded by the custody officer, and he did not recall ever mentioning any matter concerning ‘Carbon Monoxide poisoning’ in his 2007 experience in custody. Mr Robinson was clear in his evidence that he does not agree with any proposition that he said those things.

32. In re-examination Mr Robinson was asked when was the first time that he saw the custodial records. Mr Robinson said that he only saw them recently and reiterated that he does not recall making those statements and denied that any of the matters that those statements referred to ever occurred.

33. The Tribunal asked questions of Mr Robinson consistent with its powers under s 38 of the NCAT Act. When asked what he recalled from his first time in custody in 2005 Mr Robinson said that the main matter he recalled was a concern about his mother finding out. He elaborated to indicate that he was also concerned about being in custody and needing his licence for work. When asked about his second experience in custody in 2007 Mr Robinson said that he recalled being embarrassed that the same problem and situation had occurred again.

Evidence of Dr Smith

34. Dr Smith adopted his report (Exhibit ‘A-2’) in evidence in chief.

35. In cross-examination Dr Smith was asked about the evidence concerning Mr Robinson’s time in custody. It was suggested to the witness that people who attempt self-harm would rarely report such matters to medical practitioners and seek treatment. The Commissioner suggested that this would be the reason for the lack of any contemporaneous records in Mr Robinson’s medical history. The witness gave evidence that it was unlikely that Mr Robinson was ever suicidal as no cause for such behaviour or thoughts has or had ever been identified.

36. Dr Smith stated that such a proposition was unlikely because there is no evidence that Mr Robinson was suffering or ever suffering a mental illness. The witness stated that if from the custody records those comments attributed to Mr Robinson arose in an intoxicated state then they should be to some extent discounted as a mental health / suicide history cannot be taken / given when the subject / patient is in an intoxicated state.

37. Dr Smith gave evidence about an example of a patient he had dealt with who had a high blood alcohol level who lay persons might not think were intoxicated. Dr Smith noted that Mr Robinson’s answers in 2005 and 2007 are different and this seems to imply that if the recording of answers is accurate, then to some extent the answers are untruthful.

34. Dr Smith indicated in his evidence that emotionally charged questions might be received or associated with a different response than that of standard questions, such as ‘have you tried to kill yourself’ as a question. Dr Smith’s evidence was that in such a context a person might try to exaggerate his answers to emotionally charged questions (such as around suicide and self-harm), whilst giving more benign answers to questions such as current medication for back pain etc. and answer such questions truthfully.

35. In re-examination Dr Smith was asked whether he was aware that Mr Robinson had denied making those comments about attempting suicide in his teenage years. The witness advised that irrespective of whether the answers were factually based or not, there was in his expert opinion no impairment to Mr Robinson’s mental stability if 15 years had elapsed since without incident.

36. Dr Smith said that the only residual question arising from the custodial evidence was whether there was a history of alcohol use disorder. However, there was no evidence that the witness was aware of any subsequent assessments following the making of the statements.

Commissioner’s evidence

41. The Commissioner relied upon the material outlined at [24] above. Exhibit ‘R-1’ is a statement from Sergeant S Pidgeon dated 2 February 2022 which was received without objection. The witness was not required for cross examination at hearing. The witness was the officer who completed the custody records relating to Mr Robinson’s 2007 brief period in custody. The witness in his statement refers to training to complete custody responses to questions accurately irrespective of the nature of the answers given.

42. The witness stated that his own practice is very standard. In respect of the Questionnaire section the witness would ask a person in custody the questions as set out in the custody management record. If the answer is yes, a ‘Y’ is entered. If the answer is no, a ‘N’ is entered. If the person makes any comment or provides details the witness said that they would record what was said in the comments section.

43. The Tribunal notes the following evidence given by the witness at [9] of his statement:

If they make any comments or provide details in relation to an answer, then I record what was said in the ‘comments’ section as it was said to me and before I ask the next question. While what I record is not always word for word as it was said, I do record the answer as given by the detained person.

(Emphasis added)

44. The witness goes on to state that he has no independent recollection of the 2007 custodial incident but having reviewed the record stands by the record as it would have been completed with his usual practice. The witness also states that persons in custody often do not answer about any self-harm incidents: ‘It is not often that a detained person will report past attempts at self-harm. As such I did not enter that answer by mistake.’

Commissioner’s Submissions

45. The Commissioner made oral submissions at the conclusion of the evidence. The Commissioner stated that they did not cavil with the evidence of Dr Smith’s assessment of Mr Robinson’s present mental state. However, the Commissioner maintained that in 2005 and 2007 Mr Robinson’s mental state was such that he should not have been issued with a firearms licence. If it was accepted that the comments were truthful then the Commissioner maintained that there is a risk that needs to be assessed. In the Commissioner’s submission the level of alcohol present when Mr Robinson was in custody was not sufficient to cause inaccuracies in his answers bearing in mind that a significant number of answers were clearly contemporaneous, correct and reasoned.

46. In written submissions the Commissioner referred to the often-cited cases of Commissioner of Police v Toleafoa [1999] NSWADTAP 9, Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16. Other cases were also referred to by the Commissioner. These cases were relied upon to set out the approach that the Tribunal should take having regard to the public interest.

47. In the written submissions the Commissioner contrasted the evidence of Mr Robinson as relayed to the custody officers, Mr Kruger – Davis (who performed the assessment submitted in support of the Internal Review) and Dr Smith. The Commissioner submitted that there were inconsistencies in that evidence. The Commissioner submitted that the applicant was a poor historian and minimises events. Other inconsistencies such as a reference to only being at Yass Police Station in his teenage years (one incident the applicant was 18 and the other incident he was 20 years of age) were also referred to by the Commissioner.

48. Significantly the Commissioner focused on the Firearms Licence application and observed that because of the custody records, when completing the licence applications / renewals Mr Robinson had provided a false account as well as in his comments supporting his Internal Review application. The Commissioner’s position was that the accounts as given to the custody officer and duly recorded were accurate and Mr Robinson’s denial that he said those things shows a level of untruthfulness.

49. The Commissioner also referred to material produced on summons which established that Mr Robinson was in 2015 seeing his General Practitioner in part due to ‘workplace stressors’. Reference was made in those records to:

27 July 2015: ‘anxiety and psychotherapy – mental health care plan.’

50. The Commissioner submitted that this establishes treatment for mental health in the last 12 months (at the time of his subsequent licence renewal application). The fact that Mr Robinson declined to seek any treatment does not in the Commissioner’s view make the answer to the question (re: being referred or treated in the last 12 months for alcoholism, drug dependence, or a mental or nervous disorder or illness), correct.

51. The Commissioner also submitted that the report of Mr Kruger-Davis was unhelpful because he was Mr Robinson’s treating practitioner and also because he has not critically analysed the accounts in the custody records. Various submissions were also made around Mr Kruger-Daviss not being an ‘expert’ witness and acting as an advocate.

52. The Commissioner in written submissions stated that Dr Smith’s report should also be given minimal weight because the author apparently fails to address the inconsistencies in references to his alcohol consumption as well as the denial of self-harm in light of the ‘contemporaneous’ accounts of self-harm to then custody officer.

53. In conclusion refence was made to the case of Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18] concerning a failure to disclose a mental health history in a firearms context.

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

54. The Commissioner submitted that it is more likely than not that Mr Robinson did make the comments to Police about self-harm. As Mr Robinson denies the comments (even being said in jest) then the Commissioner submitted that the comments (as said) were factual. As such the Commissioner concludes that self-harm attempts occurred and that there is no evidence of any treatment or intervention for these matters, the risk and concern resulting in a valid public interest consideration remains.

Applicant’s submissions

55. Mr Robinson’s representative submitted that the entire Commissioner’s case rested on the 2005 and 2007 custodial entry records re: self-harm. The applicant submitted that none of the matters about the inconsistencies in alcohol consumption answers (as set in in [23] on the Commissioner’s submissions), were never put to him in cross examination. Likewise, the matters at [38] of the Commissioner’s submissions about workplace stressors and a mental health plan were also never put to the applicant. Additionally, the applicant submitted that the reference to his dishonesty at [58] of the submissions were not put to the applicant. The applicant was only asked if he said the words recorded in the records. The applicant denied any recollection of saying those things. In addition, the applicant submitted that they only ever stated that he had never attempted suicide in the past. That matter was never challenged or put to him in cross examination.

56. The applicant in oral submissions referred to his cognitive assessment score on the MOCA scale of 30/30 as referenced at page 29 of Exhibit ‘R-3’. The medical records at pages 25 and 26 of that Exhibit make refence to February 2020 and March 2020 entries of ‘no malaise’. The applicant’s representative submitted that there is no medical evidence that he ever self-harmed and no evidence of any harm to others.

57. Reference was also made to the report of Dr Kruger-Davis in Exhibit ‘R-2’ at page 77 where the testing of Mr Robinson was carried out over three months. In response to a submission that Dr Smith did not address the custodial matters and refences to inconsistencies in alcohol consumption, the applicant’s representative submitted that at page 12 of Exhibit ‘A-2’ Dr Smith addresses these matters in detail.

58. In written submission the applicant submitted that the issue before the Tribunal is his current fitness from a mental health perspective to hold a firearms licence in order to determine risk, and whether the granting of a licence would be in the public interest. A further submission was made that the retrospective identification of the custody records was not a proper basis to revoke the licence.

59. The applicant submitted that his assessment by Dr Smith was comprehensive and that he was an expert witness. His report observed nothing unusual in the applicant and in that context his answers to clinical questions were received. Dr Smith reported that there was no reported history consistent with episodes of hypomania or mania, and that there was no evidence of perceptual abnormality in how Mr Robinson presented for his psychiatric assessment. The applicant submitted that Dr Smith’s evidence concludes that Mr Robinson does not present with symptoms of any mental disorder.

Consideration

60. I have previously observed that whilst not squarely in a decision for review before the Tribunal concerning public interest grounds, the notion of ‘fit and proper’ is referred to the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond.

61. The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.

62. On the notion of public interest, I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.

63. Section 3 of the Firearms Act 1996 provides:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

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

(b) to improve public safety:

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

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

64. It is well understood when reviewing these decisions in the Tribunal that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered.

65. When looking at the issue of public interest the Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16.

28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is:

. . .

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

66. The applicant has no adverse history other than two PCA traffic matters and the contentious custody records alluding to a mental health concern. He has no history of violence. He has no matters involving weapons.

67. Having listened to Mr Robinson’s evidence in cross examination in my view there was nothing obvious that indicated a lack of candour or a failure to tell the truth. In my assessment Mr Robinson gave his evidence in a clear and consistent manner.

68. In my view the public would find nothing adverse in the manner of Mr Robinson’s responses. Whilst clearly a matter which would require some sort of examination in the context of a firearm’s licence application, the adverse custodial references to self-harm were never tested or explored further at the time. The one witness formed the view (at that time) that Mr Robinson presented as no risk of self-harm whilst in custody, a circumstance where self-harm behaviour has been shown to be elevated in persons. In Exhibit ‘R-1’ at [29] Sergeant Pidgeon states:

As stated above, my assessment at the time of the Applicant being detained was that he was not showing any signs of mental illness or displaying signs of self-harm., as at 26 January 2007. The Applicant referred to an attempt to take his own life 1 year ago. My assessment was in respect of 26 January 2007.

69. As noted, custodial situations can create heightened vulnerabilities for persons in custody. This is understandable bearing in mind that there is a depravation of liberty, differing psychological responses to the situation where one is accused of transgressions, and an expected unknown consequence via either Court or community outcomes flowing from the basis of being detained and placed in custody. These are ordinary human responses to disempowerment and sometimes feelings of shame and low self-worth. In addition, a significant percentage of persons in custody are under the influence of drugs or alcohol and for this reason significant duty of care provisions apply.

70. It may well be that Mr Robinson made those statements (notwithstanding the denials), or it may be that he has no recollection of making those statements. This relates to both his level of intoxication (mainly on the 2007 incident) as well as the passage of time. What he did or did not say to a custody officer in answer to a questionnaire would not have been significant to Mr Robinson. When asked what he recalled by the Tribunal he referred to shame (having to let his mother know), losing his licence, and stupidity (2007) being a repeat offender.

71. In addition, I note the evidence of the respondent’s witness as set out at [43] above, where in my view the accuracy of what was recorded does raise some doubt in my mind as to what was actually said by Mr Robinson.

72. I have had significant regard to the evidence of Dr Smith who provided expert evidence that Mr Robinson does not currently present with any symptoms of any mental disorder. Specifically, there was no history of anxiety or mood disorder. There was no evidence throughout the GP documentation of a pervasive anxiety or mood disorder requiring treatment, specifically with recurrent deliberate self-harm. This includes contemporaneous documentation at around the time of his arrest in 2005 and 2007 in which he was alleged to have made comments about previous suicide attempts. In my view the evidence of Dr Smith should be afforded significant weight.

73. I note that the case law indicates that the individual's interests would always be subordinate to the public interest in the issuing of a licence. The case of Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 is relevant on this issue. At paragraph 681 of the Report:

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

74. In Toleafoa at paragraph [25], the Appeal Panel said that the public interest:

"is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".

75. Again, I note that the body of case law indicates that the discretion is to be applied for the public benefit rather than the individual benefit.

76. In my view the legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act.

77. In applying the discretion for the public benefit, I do not discern any matters which would prevent Mr Robinson (the applicant) being granted the licence. In this regard none of the matters raised against him are of sufficient seriousness to warrant a revocation due to the passage of time.

78. I have previously observed that the Tribunal is often tasked with determining the balance in respect of the public interest when it comes to firearms licence reviews. More recently the majority of cases deal with the sole issue of whether the granting of the licence would be in the public interest. As previously noted, this case is one such case.

79. In the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal recently observed that the ‘burden’ that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed:

1. It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative.

1. Rather, as stated in Webb at [32] when considering the question of public safety:

"In determining this issue, it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".

80. In balancing those risk matters with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, it would be in the public interest to grant the licence. In this regard I believe that Mr Robinson’s existing (revoked) licence should be reinstated.

81. Having regard to the cases referred to above in my view it would not be contrary to the public interest to reinstate Mr Robinson’s Category AB Firearms Licence and I so find.

Conclusion

82. Because of the findings that I have made, it is appropriate to set aside the decision of the respondent.

83. As this is an administrative review matter, it therefore follows that the correct and preferable decision is to set aside the decision of the respondent.

84. I therefore make the following order:

Orders

1. The decision to revoke the Applicant’s Category AB Firearms Licence is set aside.

2. As a result of Order (1), the Commissioner is to reinstate the applicant’s Category AB Firearms Licence within 28 days of the publication of these reasons.

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

Registrar

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

Amendments

28 July 2022 - 28 July 2022 – Counsel corrected “N/A” replaced with “T Dixon (Applicant)”

Decision last updated: 28 July 2022