Rose v Commissioner of Police (No 2)

[2022] NSWCATAD 26

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

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

Hearing dates:

13 December 2021

Date of orders:

24 January 2022

Decision date:

24 January 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J D Little, Senior Member

Decision:

1. The decision under review is set aside.

2. A category AB firearms licence is to be issued to the Applicant.

Catchwords:

LICENSING – firearms – mental health issues – public interest

Legislation Cited:

Administrative Decisions Tribunal Act 1997

Civil and Administrative Tribunal Act 2013
Firearms Act 1996

Cases Cited:

Allan v Commissioner of Police [2008] NSWADT 230

AML v Commissioner of Police NSW Police Force [2013] NSWADT 5

Aubrey v Commissioner of Police [2005] NSWADT 266

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police [2013] NSWADTAP 16

ELU v Commissioner of Police [2020] NSWCATAD 277

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

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

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

Rose v Commissioner of Police [2021] NSWCATAD 158

Saxby v Commissioner of Police [2021] NSWCATAD 275

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110

Category:

Principal judgment

Parties:

K Rose (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Applicant (Self-Represented)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2021/00047983

REASONS FOR DECISION

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

2. The Applicant was first authorised for firearm possession in 2009 and was issued with a Category AB firearm licence for the genuine reason of recreational hunting/ vermin control. In 2014, the Applicant renewed his firearms licence for a five-year period such that it was due to expire on 14 August 2019. Additionally, since approximately 2014, the Applicant has held an unrestricted explosives licence.

3. The Applicant held a firearms licence continuously from 2009 until it was suspended by police on 18 January 2019. The circumstances of that suspension are described below. The Applicant continues to hold his explosives licence.

4. On 31 July 2019, the Applicant applied for a Category AB firearms licence. On 18 November 2020, the application was refused by the Commissioner under s 11(7) of the Act. Specifically, it was the Applicant’s mental state which was the basis upon which the Commissioner said it was not in the public interest for the Applicant to hold a firearms’ licence.

5. On 30 November 2020, the Applicant sought an internal review of the Commissioner’s decision. That review was not concluded within the 21-day timeframe specified in s 52(6) of the Administrative Decisions Tribunal Act 1997 (ADT Act) and s 30 of the Civil and Administrative Tribunal Act 2013 (CAT Act) and was thereby treated as a deemed refusal.

6. On 7 June 2021 the Tribunal determined, on the papers, to affirm the Commissioner’s decision: Rose v Commissioner of Police [2021] NSWCATAD 158 (the Previous Decision).

7. In July 2021, the Applicant appealed from the Previous Decision to the Tribunal’s Internal Appeal Panel. On 8 October 2021, the appeal was heard, and a decision delivered instanter.

8. The Appeal Panel found that the appeal should be allowed and the Previous Decision set aside because the Applicant had not been given a proper opportunity to comment on a medical report of Dr Albert Law relied upon by the Commissioner as evidence of the Applicant’s mental state.

9. The matter was remitted by the Appeal Panel for determination. This decision is that determination.

Applicable legislation

10. Section 11(7) of the Act relevantly provides that “the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.”

11. Section 3(1) of the Act provides guidance as to how the Act is to be administered which declares that firearms possession and use is “conditional on the overriding need to ensure public safety”.

12. It is in this context that the Commissioner’s power to refuse to issue a licence must be applied and to determine whether considerations of public interest or concern for public safety justify the refusal.

13. Accordingly, the issue to be addressed by the Tribunal involves considerations of public interest including whether any concerns for the risk of public safety justify the refusal. However, it is necessary to adopt a balanced view of any identifiable risk bearing in mind all relevant circumstances: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32] (Webb)

Tribunal review

14. The Tribunal has jurisdiction to hear and determine this application by reason of s75(1)(a) of the Act and s9(1) of the ADR Act. Pursuant to s63 of the ADR Act, the Tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner’s decision is the correct and preferable one.

15. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act.

Evidence

16. In addition to the oral submissions made on behalf of both parties and the material lodged by the Commissioner pursuant to s58(1) of the ADR Act, the Commissioner relies upon:

1. Written submissions dated 4 May 2021, 10 September 2021 and 10 December 2021.

2. Disclosure form of Dr Law dated 18 January 2019.

3. Progress notes of Dr Law, General Practitioner, with covering letter addressed to the Commissioner’s solicitors dated 7 May 2021

17. The Applicant relies on

1. Written submissions attached to the Administrative Review Application form filed 19 February 2021, the Notice of Appeal filed 8 July 2021 and sent by email to the Tribunal dated 4 August 2021.

2. A photocopy of the Applicant’s explosives licence.

3. Certificate of Achievement from Innervate Pain Management dated June 2020.

4. Character references and statements made by Mr Matthew Hodge dated 28 March 2020 and 30 June 2021, Mr John Cassidy dated 13 April 2021 and 16 June 2021, Ms Sharon Tibbs dated 23 March 2021 and 8 June 2021, Mr Lachlan Baker dated 28 March 2021 and 25 June 2021, Dr Vernon dated 23 March 2021, Mr Todd Matthews dated 8 April 2021

5. Confidential Psychological Assessment report by Dr Heather Vernon, Psychologist, dated 27 September 2019

18. Additionally, the Applicant was cross-examined during the hearing by the Commissioner’s representative and gave evidence orally including but not limited to his response to the substance of Dr Law’s progress notes and covering letter.

Facts

19. On 10 August 2017, the Applicant sustained a workplace injury that resulted in chronic and severe pain.

20. In December 2017, the Applicant became a patient of Dr Law. Dr Law is trained as a General Practitioner.

21. In June 2018, the Applicant attended Dr Law’s rooms where he saw a locum and presented with chronic back pain associated with his workplace injury. The Applicant was diagnosed with depression and was referred to a psychologist with whom he consulted by way of video call from time to time. According to the progress notes of Dr Law, the Applicant was reported as having fluctuating mood and intermittent thoughts of suicidal ideation but denied having active thoughts of self-harm.

22. On 3 July 2018, the Applicant attended Dr Law’s practice again. He denied thoughts of self-harm.

23. By late 2018, the chronic pain experienced by the Applicant was worsening and the Applicant informed Dr Law that he felt that the counselling by way of video call was proving ineffective. By August 2018, the Applicant’s depression was impacted by his feelings of helplessness and hopelessness caused by living with escalating chronic pain.

24. As Christmas 2018 approached, the Applicant was unable to sleep due to the pain he was experiencing and would sometimes be awake for days with virtually no sleep. The Applicant informed the Tribunal that he was experiencing several fits per day sometimes lasting hours.

25. By Christmas 2018, the Applicant was experiencing immense pain with little relief. On either Christmas Eve or Christmas Day 2018, the Applicant had a fit that he described as lasting for three hours. In the words of the Applicant:

“I was absolutely exhausted, I also hadn’t slept for 5 days too so I wasn’t thinking properly either. I was in huge amounts of pain from my massive back injury I sustained, had little pain relief and I just couldn’t cope with everything”

26. It was in this context that the Applicant had reached a stage where he felt that he “simply couldn’t endure it anymore”. The Applicant got in his car with the intention of killing himself by hitting a tree. As the Applicant drove towards a tree, a mob of kangaroos jumped in front of his car causing him to swerve which avoided any collision. He described his belief that the kangaroos were “heaven sent” and that he was overwhelmed with emotion and relief and “immediately regretted” his “stupid” decision to endanger himself (the Incident).

27. On the basis that it would be cathartic to do so, the Applicant’s wife encouraged him to inform his appointed case manager employed by his employer’s insurer of the Incident (the Case Manager).

28. In approximately the first week of January 2019, the Applicant had a telephone call with his Case Manager and informed her of the Incident. According to the Psychological Assessment of Dr Vernon, the Applicant also assured the Case Manager that:

“He was ok and that he would never do that to [his wife] and daughter again”.

29. It was the Applicant’s understanding that the information that he had given to the Case Manager would not be disclosed further.

30. On 9 January 2019, and without the knowledge of the Applicant, the Case Manager called Dr Law and informed him that the Applicant had expressed suicidal ideation. It is unclear from Dr Law’s notes if it was Dr Law or the Case Manager that was then trying to arrange an urgent appointment with a psychiatrist and an Electroencephalogram (EEG) which is a test to monitor the electric sensitivity of the brain and thereby detect disorders if any, using electrodes. The results of that test were known by 5 April 2019 and had shown a normal result.

31. At 8.15am on 18 January 2019 Dr Law recorded that he reportedly tried to contact both the Applicant and his wife without success. The Applicant explains that he did not answer the phone at this time because he was asleep, and his wife was making her way to work. Approximately 15 minutes later, at 8.30am, the Applicant returned Dr Law’s call. The Applicant denied experiencing current suicidal ideation. Dr Law’s notes record that the “police ha[ve] been notified”. On that same day, the Applicant’s firearms licence was suspended, and the police seized his firearms.

32. On 14 February 2019 the Applicant again attended Dr Law’s rooms. Dr Law’s notes record that the Applicant continued to suffer from “agitated depression and chronic insomnia”. Dr Law’s notes also record that the Case Manager requested more frequent psychiatric reviews or “proper” psychology examinations and suggested Dr Vernon, Psychologist. Under the list of “actions”, Dr Law records a referral to Dr Vernon for “CBT” or Cognitive Behavioural Therapy.

33. On 6 March 2019, the Applicant became a patient of Dr Vernon for treatment of his anxiety and depression. The Applicant continued to receive this treatment approximately each fortnight until February 2020 and then again in July 2020 until February 2021. The Applicant gave evidence that around this time, the Applicant was put on a new medication regime that dramatically improved his pain which had a corresponding positive impact on his mental health.

34. Dr Law provided progress notes of his consultations with the Applicant to the solicitors of the Commissioner at their request accompanied by a covering letter dated 7 May 2021. The progress note that was the last in time is dated 5 June 2019. There is no reference in that progress note to any suicidal ideation or feelings of hopelessness having been reported by the Applicant to Dr Law. There is, however, a reference to “Letter printed re Firearm to Ms Heather Vernon”. In that letter, Dr Law requested Dr Vernon to review the Applicant’s psychological fitness to regain his firearm licence.

35. In his covering letter dated 7 May 2021, Dr Law wrote:

“There has been no further expression of any suicidal ideation since 05/06/2019”

36. It has been submitted on behalf of the Commissioner that it should be inferred from that statement in the covering letter that the Applicant expressed suicidal ideation to Dr Law on 5 June 2019. This is denied by the Applicant who maintains that he has not shown any symptoms of suicide since the Incident.

37. An implication there was an expression of suicidal ideation on 5 June 2019 sits uneasily with the content of the progress note of this date, Dr Law’s letter to Dr Vernon and the other notes made by Dr Law. In this regard,

1. First, each of the progress notes are detailed in their character and are in the context of Dr Law placing particular emphasis and focus on any references to self-harm and suicidal ideation by increasing the size of that text and using bold font. In these circumstances, to the extent that the Applicant had indicated suicidal ideation on 5 June 2019, it would be expected that Dr Law would have recorded this in his notes for his consultation of that day as he had done on previous occasions.

2. Secondly, Dr Law’s request of Dr Vernon to evaluate the Applicant in the context of regaining his firearm licence is difficult to reconcile with the allegation that on the same day of Dr Law’s request, the Applicant indicated to Dr Law that he was experiencing active suicidal thoughts.

3. Lastly, the covering letter itself supports that in the face of any inconsistency as between the covering letter and the progress notes in documenting the Applicant’s suicidal ideation, the progress notes should be preferred. In this respect, in answer to the question ““Whether Mr Rose has ever demonstrated or reported any other risk of suicide or self-harm?”, Dr Law answers:

“Yes, please refer selected relevant progress notes that documented his suicidal ideation or thought of self-harm in the past”

38. I do not accept that on 5 June 2019, the Applicant indicated suicidal ideation to Dr Law, and I rely upon the text of Dr Law’s progress notes. Has the Applicant disclosed suicidal ideation to Dr Law on 5 June 2019, given the importance of that information to the purpose of the consultation, Dr Law would have mentioned that disclosure in the progress note of 5 June 2019. I do not draw the inference from the statement in Dr Law’s letter of 7 May 2021 set out at paragraph 35 above, which the Commissioner argues for. All Dr Law was seeking to communicate by that statement was that there had been no expression of suicidal ideation by the Applicant since Dr Law’s last progress note.

39. On 27 September 2019, Dr Vernon produced her report based on a psychological assessment of the Applicant. In addition to describing the Incident in detail, Dr Vernon also opines that:

1. In answer to the question “How has his condition affected his fitness to possess and use a firearm?” Dr Vernon answers “The [Applicant’s] main impairment is his excessive level of chronic pain. Other than during an extreme flare-up (where he’s house-bound) his hobby of recreational shooting can actually assist him by virtue of some exercise as well as the mental lift of being able to engage in an activity he once did pre-injury, when so many other activities represent losses

2. In answer to the question “In your expert medical opinion, is there a current risk that the Applicant’s condition or impairment may impact on their ability to exercise continuous and responsible control over firearms?” Dr Vernon answers “No, not now. I believe the circumstances at that time [of the Incident] (extreme pain, sleep deprivation, no sense of a future and inadequate supports) are vastly different to his situation currently. Having said that, on the occasion if his desperation, it is worth considering that [the Applicant] still chose to drive into a tree versus shooting himself”

3. In answer to the question “Is it possible that that the Applicant will relapse?” Dr Vernon answers “[The Applicant], like anyone, has the potential to become suicidal if a cluster of circumstances again developed like before. However, this event actually made him realise more than ever what he does have to live for, who would be most impacted, and why he needs to actively keep doing meaningful activities to sustain his mental health. Should his mental state decline however, now [the Applicant] DOES have medical and family/ friends support as well as regular monitoring by his team. His psychological status has remained healthier as time has gone on and his pain management regime has improved. He also has some hope for some even better pain management in the form of surgery.”

4. In answer to the question “If there is a previous history, yet no current concern, why have the circumstances changed?” Dr Vernon answered “I believe that [the Applicant’s] mental state and situation (management of his injury symptoms) have vastly shifted in a positive direction since December 2018.”

40. As to the Applicant’s current circumstances, in his own words he has “never been better” and is in a vastly different situation than that leading to the Incident. According to the report of Dr Vernon, the Applicant’s psychological state has improved as his pain management regime has improved. According to the Applicant, this improvement has been contributed to by the treatment his has received from Dr Willem Volschenk being a specialist in pain management beginning in 2019. Whilst a patient of Dr Volschenk:

1. by June 2020, the Applicant completed a four-week intensive pain management course with Innervate Pain Management which seeks to teach participants about pain, how to manage it and understand it.

2. has had surgery to burn the nerves from his spine and insert a nerve block – the purpose of which is to interrupt signals of pain traveling along a nerve; and

3. completed a pain stimulator trial in which a device was placed into the Applicant’s spine to block spine pain signals which, the Applicant informs the Tribunal, was successful in dramatically reducing the pain the Applicant experiences on a daily basis.

41. Due to the successful trial of the pain stimulator, the Applicant has been approved for a permanent implant to further reduce his pain.

42. The Applicant gave evidence that he looks forward to “a long enjoyable life with [his] family”.

Submissions

The Commissioner’s submissions

43. In making the case that the Commissioner’s decision to refuse the Applicant’s application for a Category AB firearms licence under s 11(7) of the Act is correct and preferable, the Commissioner relied primarily on Dr Law’s progress notes and covering letter on the basis that it “provides the most recent evidence of the Applicant’s mental health”. In respect of the evidence of Dr Law, the Commissioner submitted that:

1. Dr Law had been the Applicant’s general practitioner since 29 December 2017

2. The Applicant has not expressed any suicidal ideation since 5 June 2019

3. During a consultation with Dr Law on 19 June 2018:

1. The Applicant reported intermitted thoughts of suicidal ideation;

2. Had considered shooting himself and had guns at home but denied having active thoughts of self-harm;

1. The protective factors included the Applicant’s wife and that the Applicant did not have access to firearms (the Applicant’s wife having the key to the gun safe);

4. During a consultation with Dr Law on 3 July 2018, the Applicant denied a current suicidal ideation;

5. During a consultation with Dr Law on 1 August 2018, the Applicant was negative and displayed a sense of hopelessness and helplessness; and

6. During a call with the Applicant’s Case Manager on 9 and 18 January 2019, the Applicant expressed described having had suicidal ideation.

44. Additionally, the Commissioner drew the Tribunal’s attention to the alleged limitations in Dr Vernon’s report in that it did not provide evidence of the Applicant’s current mental health and to the fact that “the Applicant has not filed any evidence of ongoing treatment or medical evidence which provides evidence of the Applicant’s current mental state”. In these circumstances, the Commissioner maintains that the Tribunal cannot be satisfied that there was “virtually no risk” to the public of issuing the Applicant with a firearms licence given the Applicant’s mental health history.

45. In respect of the oral evidence given by the Applicant as to his recent medical treatment and progress, the Commissioner maintained that this evidence should not be accepted absent some form of medical report or documentation to verify it.

46. In these circumstances, the Commissioner submitted that the Tribunal could not be satisfied that the Applicant was receiving effective treatment for his depression and in respect of evidence of a period of stability, the evidence supported that this period of stability was for only approximately 18 months. This calculation, however, was based upon Dr Law’s reference in his covering letter to 5 June 2019 as being the most recent instance of suicidal ideation. Relying on AML v Commissioner of Police NSW Police Force [2013] NSWADT 5; Allan v Commissioner of Police [2008] NSWADT 230 and ELU v Commissioner of Police [2020] NSWCATAD 277, the Commissioner contended that this period was insufficient to find that the Applicant had showed stability.

47. Lastly, and in respect of the character references and statements relied upon by the Applicant, the Commissioner submits that they should be given little weight as they do not refer to the Applicant’s mental health or previous threat of self-harm.

The Applicant’s submissions

48. The Applicant relies primarily on the report of Dr Vernon, being in his words, “a trained professional in the field of mental health” who is satisfied that he is not a danger to himself or to the public and to the fact that the Incident was a singular and exceptional occurrence in circumstances very different than he currently is in. In this regard, the Applicant drew the Tribunal’s attention to his most recent medical treatments in pain management as described at paragraph 30 above which have “dramatically improved” and reduced his pain which was the source of his depression, insomnia and anxiety.

49. The Applicant also placed reliance on AML v Commissioner of Police NSW Police Force [2013] NSWADT 5 for the proposition that not every suicide attempt will justify a revocation of a firearms licence. In this regard, the Applicant contends that the evidence supports he does not pose a danger to the public nor himself because:

1. The Incident occurred approximately three years ago;

2. Since the Incident, he has not shown any symptoms of suicidal ideation and no symptoms of major depression; and

3. Dr Vernon, an expert in the field of psychology, attests that he does not pose a danger; and

4. He is a person of good character as evidenced by the character references the most recent of which document an improved attitude and outlook corresponding with his improved physical condition and pain management.

50. In the words of the Applicant:

“I will never put my family through this again. Although my body is broke [sic], I’ve worked very hard to make sure my mind isn’t”

Consideration

51. The expression “public interest” is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing.

52. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the ‘public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

53. Considerations may go beyond the character of the Applicant and may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33].

54. When considering whether there is a reasonable risk to the public, the Tribunal should consider the risk to the Applicant himself, as a “member of the public”: Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117 at [74].

55. In respect of considering the underlying principles of the Act which emphasise the need to ensure public safety., the Commissioner referred to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (“Ward”) in the context of submitting that the appropriate test in the circumstances of this case is that I must be satisfied that there is virtually no risk to public safety if the Applicant were given access to a firearm. However, since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because Her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. The "virtually no risk" comment was made in the context of the "fit and proper person" test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Act and comments in cases should not be substituted for those tests.

56. 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.

57. 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".

58. In applying these principles in determining the public interest, I accept as a preliminary issue that the Applicant’s interest in shooting is a long-standing one that assists with his mental health and provides him with a form of “release”. I also accept that the character references and statements relied upon by the Applicant support that the Applicant is a caring individual who has earned the admiration and respect of his friends, neighbours and peers.

59. However, as stated in Saxby v Commissioner of Police [2021] NSWCATAD 275 at [92]:

Private interests, however, are not the only matters to be taken into account and the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an applicant’s character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for ‘the good order of society and for the well-being of its members’: Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.

60. Accordingly, the Applicant's genuine reason for holding a firearms licence cannot be given priority over the public interest. As observed by the Tribunal in Aubrey v Commissioner of Police [2005] NSWADT 266 at [21]

"where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm".

61. The Commissioner submitted that there is too much uncertainty regarding the Applicant's mental health for the Commissioner to be satisfied that there is “virtually no risk” to public safety if the Applicant was granted a firearms licence. This was primarily based upon the submission that Dr Vernon’s report did not constitute evidence of his current mental health. Rather, according to the Commissioner, Dr Law’s covering letter and progress notes should be preferred given that those documents provide the “most recent” evidence of the Applicant’s mental health.

62. This submission is difficult to reconcile with the documentation before me. As a matter of fact, it is Dr Vernon’s report that provides the most contemporaneous documentary evidence as to the Applicant’s mental state and not Dr Law.

63. Although Dr Law’s covering letter is dated 7 May 2021 neither that letter nor the progress notes provide information relating to the Applicant as of that date. Rather, all the information provided is with reference to the progress notes, the last note being in respect of an appointment on 5 June 2019. No more recent medical history is included in Dr Law’s documents.

64. This can be contrasted with Dr Vernon’s report which is dated 27 September 2019, and answers questions posed as to the “current risk” and the risk of relapse in the future. To the extent that the more contemporaneous evidence as to the Applicant’s mental health should be preferred as submitted by the Commissioner, this is the report of Dr Vernon and not the documents of Dr Law.

65. However, I do not find that the report of Dr Vernon and the covering letter and progress notes of Dr Law are conflicting such that I must prefer one over the other. The documents created by Dr Law provide progress notes of the Applicant’s medical appointments from 19 June 2018 to 5 June 2019.

66. Dr Vernon’s report provides answers to questions related to the Applicant’s mental health post-dating his appointments with Dr Law and an opinion as to any future risk.

67. In these circumstances, it is not the case that a preference must be given to Dr Law’s documents over Dr Vernon’s report or vice versa. Rather the documents are part of one narrative evidencing that the Applicant suffered from chronic pain and intermittent thoughts of self-harm arising because of that chronic pain culminating in the Incident. However, since that time, his mental state has vastly improved from the acute state the Applicant was in, in December 2018 because of steps taken by the Applicant to effectively manage his chronic pain.

68. This is admitted by the Commissioner by way of written submission:

“The Respondent accepts that as at the date of [Dr Vernon’s report], the Applicant’s psychological state has improved from the acute state the Applicant was in in December 2018.”

69. In accepting that proposition the Commission must accept that to the extent that the Applicant’s acute psychological state as at the time of the Incident created a public risk, that risk no longer existed as at 27 September 2019 being the date of Dr Vernon’s report. There is no evidence before me to suggest that the Applicant’s acute psychological state, as described by the Commissioner, has returned or is likely to return.

70. Rather, the evidence before the Tribunal runs counter to that proposition. As described above, Dr Vernon opines that the Applicant’s psychological status has remained healthier as time has gone on and his pain management regime has improved with the potential for his pain management to improve even more with surgery. While Dr Vernon acknowledges that the Applicant, like anyone, has the potential to become suicidal if a cluster of certain circumstances developed; the likelihood that those circumstances would develop in the case of the Applicant are minimal given that the Applicant’s circumstances have vastly changed from those existing in December 2018.

71. That those circumstances have vastly changed is supported by the Applicant’s evidence and the references and statements of individuals described at paragraph 40. I also accept the evidence of the Applicant, whom I find was a frank and honest witness, as to the additional treatments undertaken by him to improve his pain management. The Applicant’s completion of a pain management course in June 2020 is also supported by the documentary evidence in the form of the certificate from Innervate Pain Management as described at paragraph 40 above.

72. I am satisfied that the Applicant is receiving effective treatment and his psychological state is vastly improved. Additionally, in respect of evidence of a period of stability - I reject, consistent with my findings at paragraphs 27 and 28, that the period of stability is limited to only approximately 18 months. I accept the Applicant’s evidence that he has not experienced suicidal ideation since the Incident which equates to a period of stability of approximately three years.

73. In these circumstances, I find that given the evidence any risk of relapse is minimal and may be excluded from consideration consistent with the decision of Webb.

74. Accordingly, in respect of the objection of the Commissioner based on mental health grounds, the totality of the evidence leads me to the conclusion that it would not be contrary to the public interest for a firearms licence to be issued to the Applicant, and I so find.

Orders

1. The decision under review is set aside

2. A category AB firearms licence is to be issued to the Applicant.

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

Registrar

Decision last updated: 24 January 2022