Shearman v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 63

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Shearman v Commissioner of Police, NSW Police Force [2024] NSWCATAD 63

Hearing dates:

5 October 2023

Date of orders:

8 March 2024

Decision date:

08 March 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

1. The decision by the Commissioner of Police to refuse the application by Ms Anne Shearman for a Category AB firearms licence under the Firearms Act 1996 is set aside.

2. In substitution for the Commissioner of Police’s decision, the application by Ms Anne Shearman for a Category AB firearms licence is granted.

Catchwords:

Administrative Law – licensing - firearms licence – refusal of application – mental health – accuracy of information in licence application - public interest

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Cases Cited:

Balle v Commissioner of Police [2021] NSWCATAD 187

Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240.

BSR v Office of the Children’s Guardian [2015] NSWCATAD 264

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

Keane v Commissioner of Police, NSW Police [2008] NSWADT 68

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

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

Meacham v Commissioner of Police [2020] NSWCATAP 107

Ward v Commissioner of Police [2000] NSWADT 28

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

Category:

Principal judgment

Parties:

Anne Shearman (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Mainstone Lawyers (Applicant)
Maddocks (Respondent)

File Number(s):

2023/00165241

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Ms Anne Shearman (“the Applicant”) for review of a decision by the Commissioner of Police, NSW Police Force (“the Commissioner” or “the Respondent”) under the Firearms Act 1996 (“the Firearms Act”). The decision was to refuse the Applicant’s application for a Category AB firearms licence.

2. The Applicant’s firearms licence application identified the genuine reasons of:

1. Target shooting based on club membership; and

2. Recreational hunting/vermin control based on the permission to shoot from the occupier of rural land.

3. The Respondent’s decision to refuse the application was based on concerns that the Respondent held in regard to the Applicant’s mental health and the fact that a report from a psychologist or psychiatrist had been requested to address those concerns, but none had been provided.

4. The decision was affirmed on internal review. The reviewer remained concerned in regard to the Applicant’s mental health. She commenced antidepressant medication in 1999 and has remained on it ever since. In particular, the concerns arose from an incident in December 2008 (“the December 2008 incident”) where it was reported that the Applicant had taken an overdose of pills. It was also noted that the Applicant had failed to disclose relevant information in relation to her mental health in her licence application. For these reasons, the reviewer could not be satisfied that there would be ‘virtually no risk’ if the Applicant were to be issued with a firearms licence.

5. The Respondent is of the view that the Tribunal could not be satisfied that it is in the public interest for the Applicant to be granted a firearms licence.

6. The Applicant has applied to the Tribunal for external review of the Respondent’s decision.

Background

7. An event record from the Respondent’s electronic database (“COPS”) set out details in relation to the December 2008 incident. The event record notes that when Police attended her residence, she was coherent and did not seem effected by the drugs she had taken. The police had an ambulance attend the address to assess the Applicant’s health and no treatment was required.

8. The internal review reasons for decision provides a reasonable summary of the December 2008 incident. The internal reviewer stated:

[On] 9 December 2008, it was reported that you contacted a person known to you advising them that you had taken several pills. Due to the concerns held for your welfare. Police were alerted and attended your residence. Police asked you about the pills that you had allegedly taken, and you responded by saying that you have problems going on in your life and that you just wanted to take some time out for yourself. You advised Police that you took sixteen ‘mersyndol’ tablets but stated that you had no intentions or thoughts of taking your life. You further informed Police that you suffer from depression but are receiving treatment from a psychiatrist. Police report that you seemed coherent and did not seem affected by the drugs you had taken. Ambulance attended to assess your health with no treatment required.

9. The Applicant has consistently denied that she had any intention or thoughts of taking her own life on that occasion. As noted, she advised police to that effect on the day. She has advised that she has suffered from and received treatment for depression but says that the condition is stable. She receives treatment from her GP and continues her medication without the need for further treatment from either a psychologist or a psychiatrist.

10. In regard to her need for a firearm, she gave evidence that she is a primary producer and requires the firearm to control vermin and humane destruction of stock. She has previously been a member of a rifle club, but the membership has lapsed because of these proceedings.

Issues

11. The Tribunal is to determine whether the correct and preferable decision is to refuse to grant the Applicant’s application for a firearms licence.

12. This determination requires consideration of whether it would be contrary to the public interest for the Applicant to be granted a firearms licence.

Legislation

The role of the Tribunal

13. Section 9 of the Administrative Decisions Review Act 1997 (“the ADR Act,”) provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. This application is made under section 75 of the Firearms Act and the ADR Act. The Tribunal has jurisdiction in regard to a number of firearms licensing issues. The Tribunal’s jurisdiction includes review of a decision by the Respondent to refuse a firearms licence application.

14. Section 63 of the ADR Act provides that in determining and application, the Tribunal is to determine what is the "correct and preferable decision" having regard to the material before it. In reaching the correct and preferable decision, the Tribunal may:

1. exercise all of the functions that are conferred or imposed by the Firearms Act on the Respondent; and

2. affirm the Decision, vary the Decision, set aside the Decision, and make a decision in substitution of the Decision, or set aside the Decision and remit the matter for reconsideration by the Respondent.

15. There is no formal onus of proof. In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review. Its consideration is not limited to material that was before the Respondent at the time it made the decision which is under review.

16. The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. The Tribunal should consider all relevant materials and ignore all irrelevant materials.

17. The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]:

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

…

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

18. As Principal Member Britton observed in BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at paragraph [17]:

… a practical or "forensic" burden can arise from the material presented. A party who asserts a fact has a responsibility to prove that fact: Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303; Holbrook and Australian Postal Commission (1983) 5 ALN N46.

19. In determining the review, the Tribunal, must exercise its discretion in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].

20. The underlying principles of the Firearms Act are, relevantly:

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

2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.

21. The underlying principles set out in section 3(1) of the Firearms Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety: Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 at paragraph [44].

22. Section 11(7) of the Firearms Act provides:

11 General restrictions on issue of licences

…

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

...

The public interest

23. 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 Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.

24. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [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.”

25. In Cusumano v Commissioner of Police at paragraph [23] Deputy President Hennessy 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.”

26. Section 3 of the Firearms 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 paragraphs [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.”

27. Ward v Commissioner of Police dealt with the issue of 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 paragraphs [130] – [134].

28. 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 paragraphs [64] – [66].

29. In determining this issue, 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: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].

Material before the Tribunal.

30. The Respondent relies on a bundle of documents (“the section 58 documents”) provided pursuant to section 58 of the ADR Act. The section 58 documents include an event record from the Respondent’s COPS database that sets out details in relation to the December 2008 incident. The section 58 documents also include a referral letter from the Applicant’s GP, Dr Phillip Seeley. The referral is dated 29 October 2022 and is addressed to Psychological Solutions - a psychologist practice. Also included in the bundle is a psychological assessment report (“the Golledge report”) by Ms Carey Golledge, a registered psychologist.

31. The Respondent's solicitor, Mr Winram, also provided written and oral submissions.

32. The Applicant relies on her own evidence, the referral letter from Dr Seeley and the Golledge report. The Applicant attended the hearing, gave evidence and was cross-examined. The Applicant’s solicitor, Mr Mainstone, provided written and oral submissions.

The Respondent’s case.

33. The Respondent's position is that the Tribunal could not be satisfied that it is in the public interest for the Applicant to be granted a firearms licence because:

1. conflicting evidence has been provided in relation to the Applicant's mental health and suitability to possess firearms; and

2. the Applicant made false and misleading responses in her licence application relating to her mental health concerns.

The Applicant's mental health

34. The Respondent raised a number of issues in regard to the Applicant’s mental health. In relation to the incident in December 2008 the Respondent notes that the event report recorded that the Applicant:

• had consumed 16 Mersyndol tablets due to ‘a number of problems going on in her life’ and that she ‘just wanted to take some time out for herself;

• suffered from depression; and

• had been receiving treatment from a psychiatrist named Dr Mark Kneebone.

35. The Respondent requested that the Applicant obtain an assessment from a psychologist or psychiatrist. The Applicant obtained the Golledge report in response to that request.

36. The Respondent acknowledges that Ms Golledge concluded that the Applicant poses no risk while her depression remains stable. However, the Respondent also notes that:

• a history of suicide is present in her family, as the Applicant’s Aunt and Nephew both died from suicide;

• the Applicant had previously experienced suicidal ideations during the period of 1989 and 1992.

• the Applicant suffered from post-natal depression in 1997;

• the Applicant commenced taking anti-depressant medication in 1999 after the birth of her daughter and has remained on anti-depressant medication since;

• the Applicant attended sessions with psychiatrist Dr Richard Wu in late 1999 and early 2000s;

• the Applicant attended sessions with psychiatrist Dr Mark Kneebone during 2006 to 2008;

• the Applicant is currently prescribed Efexor 225mg for her depression;

• ‘the client’s pattern of responses suggests that she tends to present herself as being relatively free of common shortcomings to which most individuals will admit, and she appears somewhat reluctant to recognise minor faults in herself; and

• the Applicant ‘may have some difficulty in the appropriate expression of anger’.

37. The Respondent submits that Ms Golledge’s reference to the Applicant’s previous suicidal ideations is inconsistent with the Applicant’s statement that she has never had any suicidal ideation.

38. The Respondent also notes that the Golledge report states:

The [Applicant’s] interest in and motivation for treatment is below average in comparison to adults who are not being seen in a therapeutic setting, and her treatment motivation is a great deal lower than is typical of individuals being seen in treatment settings. Her responses suggest that she admits to few difficulties and will rigidly resist efforts to change the status quo.

… she may not be willing to make a commitment to therapy; engaging her in the therapeutic endeavour is likely to represent a formidable problem.

39. The Respondent submits that these statements demonstrates that the Applicant may not be willing to seek psychological supports when needed, increasing the risk to public safety (and her own) if she was to obtain a firearms licence.

40. The Respondent further submits that the Golledge report contains a number of qualified comments, including that:

• the Psychology Report ‘is not to be used in medical or legal proceedings’; and

• Ms Golledge has never treated the Applicant outside of this assessment.

41. The Respondent further notes that Ms Golledge urged caution, stating:

Given this apparent tendency to repress undesirable characteristics, the interpretive hypotheses in this report should be reviewed with caution. Although there is no evidence to suggest an effort to intentionally distort the profile, the results may underrepresent the extent and degree of any significant findings in certain areas due to the client's tendency to avoid negative or unpleasant aspects of herself.

42. In relation to the December 2008 incident, the Golledge report records:

On the 09 December 2008, a friend (whose occupation was a psychologist) rang [the Applicant] as she had not shown up for a regular morning tea and became concerned that Anne sounded unusually sleepy. [The Applicant] stated she had taken two Mersyndol tablets the previous night, but the friend was concerned [the Applicant] had taken more and rung emergency services.

43. The Respondent submits that the Applicant’s version of the December 2008 incident, as outlined in the Golledge report, provides a very different version of events to that recorded by Police. The Respondent contends that this suggests that the Applicant may not have been completely honest when providing the relevant information to Ms Golledge and that this further undermines the extent to which the conclusions expressed in the report that are based on the Applicant’s self- reporting can be accepted.

44. The Respondent submits that in light of the above considerations relating to the Applicant’s mental health and conditional conclusions expressed in the Psychology Report, the Tribunal cannot be satisfied that there is virtually no risk in the Applicant being able to possess or use firearms.

The Applicant’s responses in her licence application

45. The Respondent contends that the Applicant has failed to disclose a number of relevant matters in her application for a firearms licence. In the Application she responded:

• ‘no’ to the question 'Have you ever attempted suicide or self-harm?’; and

• ‘no’ to the question ‘Have you, in the past 12 months, been referred or treated for a mental nervous disorder or illness?’

46. The Respondent contends that these responses are clearly false and misleading in circumstances where:

• the Applicant had previously consumed 16 Mersyndol tablets in 2008 during an incident where Police were contacted to check on her welfare; and

• the Applicant has been and continues to be treated for depression by the prescription and consumption of anti-depressant medication through her general practitioner.

47. The Respondent submits that the Applicant’s responses were false and misleading, and this bring into question whether she would act responsibly in complying with the requirements of her licence and the regulatory scheme if she was granted a firearms licence.

48. Pursuant to section 70 of the Firearms Act, it is an offence for a person to make a statement or provide information that the person knows is false or misleading in or in connection with an application under that Act.

49. The Respondent referred to views expressed by Senior Member Isenberg in Balle v Commissioner of Police [2021] NSWCATAD 187 where she stated at paragraph [14]:

If the Applicant had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. Furthermore, on that basis alone, it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence: see Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240.

50. In Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240 Senior Member Scahill stated at paragraph [53]:

it is not in the public interest for Mr Bladen to continue to hold a firearms licence in circumstances where the licence has been obtained on the basis of an application that is misleading in a material particular ... 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.

51. The Respondent submits that the holding of a firearms licence is a privilege, not a right, and the continued enjoyment of that privilege is conditional upon the overriding need to ensure public safety. 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. The Respondent further submits that the Tribunal is required to look at the Applicant’s conduct as a whole and must consider the Applicant’s:

1. unresolved mental health issues and unwillingness to commit to psychological therapy when needed; and

2. false and misleading responses in their licence application.

52. The Respondent submits that this consideration cannot result in a conclusion that there is virtually no risk to public safety - including the Applicant’s own safety - if she was to obtain a firearms licence.

53. In these circumstances, the Respondent submits that the correct and preferable decision is to affirm the decision to refuse the Applicant’s application for a Category AB firearms licence.

The Applicant’s case.

54. The Applicant’s position is that there is no risk to the public or herself if she is given a firearms licence. She provided a statement and also attended the hearing and gave evidence. In her statement she responded to some issues raised by the Respondent. She stated:

• I do not remember stating I had taken that number of tablets (i.e. 16 Mersyndol tablets), though do know if I had taken that number the NSWAS who attended would have suggested paracetamol poisoning protocol, and I would have had to sign a refusal to treat form. As the Police reported, I had no intention or thoughts of taking my own life.

• I answered no [to the questions on the licence application form] as my depression is stable. Q.3. I have never been scheduled, hospitalised nor had an end of life plan. Q.4. Only referral was by the firearms registry for assessment. As stated previously, my depression is stable.

• I am currently not a financial member [of a rifle club], as unable to renew due to ongoing NCAT proceedings.

• I am no longer in a violent relationship and my medication dosage is the same as previously. I do not have any suicidal ideation and never have.

• It is considered that I committed self-harm by taking the multiple tablets, the number of which is in question. This decision was made by the senior adjudicator, who was not onsite at the time in December 2008. In the enduring time, I have not had any further need for professional intervention. I am seeing my GP for treatment, who has not seen the need for me to be referred to either a psychologist, or psychiatrist for further treatment and assessment. By continuing my medication, which has remained unchanged except for a dose change when my father died tragically and unexpectedly. The dose is now back to the same dose prior to my father's passing.

55. Her evidence before the Tribunal was that she:

• lives on a 512 acre property which she will stock with sheep. It is not a hobby farm, and she is a registered primary producer.

• She requires a firearms licence to euthanase stock and to shoot vermin including pigs, wild dogs, foxes, and kangaroos.

• In regard to the December 2002 incident, she had spoken to her friend and probably said that she had taken Mersyndol tablets.

• She does not recall how many Mersyndol tablets she took or how many tablets she told the police that she had taken.

• She agreed that her GP had referred her to a psychologist and that the letter of referral noted that she had been prescribed Efexor-XR in May 2022. She agreed that Efexor is an antidepressant medication.

• She agreed that she has been treated for depression since 1999.

• She now concedes that she should have answered the question on the licence application form that related to treatment for depression differently. She said that she misunderstood the licence application form questions relating to treatment for depression, and that she had understood it to be related to referral for treatment by a psychiatrist.

• She attended for assessment with Ms Golledge in November 2022. She gave Ms Golledge information in relation to her treatment for depression. She told Ms Golledge that she had taken 2 Mersyndol tablets the previous night i.e. on 8 December 2008.

• She said that she has never taken 16 Mersyndol tablets in a short space of time. The most that she has taken would be less than 6. When she has taken 6 Mersyndol tablets in a 24 hour period, the affect on her was that she was sleepy and found it difficult to rise. On 9 December 2008, when she woke to find police in her bedroom, she was surprised but recalls having a conversation with the police officer.

• She does not recall the details of what occurred 30 years ago but referred to it as a ‘dark time’. She did not accept that her statement that she had never had any suicidal ideation was incorrect. She said that ideation involves thoughts and plans.

56. The Applicant’s solicitor, Mr Mainstone, submitted that:

• the Applicant does not have unresolved mental health issues. She Applicant has been a registered nurse with unrestricted practice since December 1995. She has never been admitted to hospital due to mental health issues, nor had any end of life plan.

• the Applicant denies she took 16 Mersyndol tablets on 9 December 2008.

• the Police report of the December 2008 incident records that the Applicant was coherent and did not seem affected by drugs.

• if sixteen Mersyndol tablets had been taken, the Applicant would not have been coherent as reported by the Police.

• upon the attendance of an Ambulance, it was deemed no further treatment was required.

• if the Applicant had taken 16 Mersyndol tablets, the Ambulance service would have suggested a paracetamol poisoning protocol.

• the Applicant is able to provide this evidence based on her qualifications as a registered nurse. In that role, the Applicant would have access to many medications or instruments that would aid in any plan to self-harm or commit suicide.

• there is no evidence to support a finding the Applicant has, at any time attempted self-harm or commit suicide.

• the incident referred to took place in 2008, some fifteen years ago.

• the Applicant gave evidence that she has no intention or thoughts of taking her own life.

• the Applicant’s General Practitioner has not seen the need for her to be referred to either a Psychologist or Psychiatrist.

• the Applicant’s only referral was for an assessment at the request of the Firearms Registry regarding her licence application.

• the Applicant is under the care of her General Practitioner and takes Efexor for depression, which is under control, and she is compliant with taking this medication.

57. The Applicant relies on the report of her General Practitioner, Dr Seeley who has been treating the Applicant for over seven years. Dr Seeley reported:

In 2008 she experienced low mood with an allegation that she had threatened self harm. ...

[The Applicant] has been attending at this practice for over seven years and I've been seeing her over this time, there has been no self harm or threats of harm to others. [The Applicant] is a sensible and knowledgeable woman and her mental state has improved somewhat since moving out from her former partner.

58. The Applicant relies on the Golledge report. Ms Golledge is a registered psychologist. As noted above, the Applicant acknowledged that the information about the December 2008 that is included in the Golledge report is information that she gave to Ms Golledge. That information is that on the night before the 9 December 2008 incident, the Applicant took only two Mersyndol tablets. Mr Mainstone submitted that this is consistent with the Police report that the Applicant was coherent and did not appear affected by drugs when they spoke with her.

59. The Golledge report also notes that:

In terms of mental health history, [the Applicant] reported a history of suicidal ideation between 1989 to 1992, during a relationship involving domestic violence, which she described as physically violent. She described fleeting suicidal thoughts during this time but denied plan or intent. [The Applicant] denied subsequent or current suicidal ideation, harm to self or others.

60. Again, this is information that the Applicant gave to Ms Golledge.

61. Ms Golledge stated:

It is my professional opinion that Anne Shearman does not have the potential to put public safety at risk if she were to have possession and use of a firearm. In terms of Anne’s personal safety, I do not believe she is at risk to herself by holding a firearms license and possessing firearms.

62. The Applicant submits the Tribunal should give significant weight the reports.

63. With respect to the Applicant’s answers to questions on her firearms licence application form, Mr Mainstone submitted that the Applicant’s evidence is that her answers reflect her belief that she has never attempted suicide or self-harm. He submitted that the Tribunal should accept the Applicant’s evidence that she did not take a large number of Mersyndol tablets in December 2008. Further, he submitted that the Tribunal can quite properly differentiate between “fleeting suicidal ideation” and an attempt to commit suicide.

64. It is submitted the Tribunal would be satisfied the Applicant did not provide a false or misleading answer to that question in her licence application. She answered “No” to the question “Have you, in the past 12 months, been referred or treated for a mental nervous disorder or illness?” because her depression is stable and under the management of her General Practitioner and has been for quite some time. She has not been referred to a Psychologist or Psychiatrist with her only referral at the request of the Firearms Registry for a report. The Applicant concedes she should have disclosed she is taking medication for depression but did not do so with any intention to mislead the Registry.

65. It is further submitted that given the Applicant’s one interaction with Police was some fifteen years ago and that she is presently stable in her treatment for depression, the Tribunal would be satisfied there is virtually no risk to the public should she be granted a firearms licence. Therefore, the decision to refuse her application for a firearms licence should be set aside and the licence granted.

Consideration

66. The question of the correct and preferable decision in this matter arises because of the Respondent’s view that it would be contrary to the public interest for the Applicant to be granted a firearms licence because of her history of mental health issues.

67. As noted above, the Applicant has identified genuine reasons for possessing firearms. It appears that the permission to shoot, from the occupier of rural land, remains current. The occupier of rural land is the Applicant’s partner. However, her rifle club membership has expired. That membership would need to be renewed to establish the genuine reason of target shooting based on club membership. The Applicant has also indicated that she is a primary producer, but it appears that she has not amended her firearms licence application to add that as a new genuine reason.

68. It is not in dispute that the Applicant came to the attention of police because of an incident in December 2008. The information in the COPS event report suggests that the Applicant informed the police who attended her residence that she had taken took sixteen Mersyndol tablets.

69. The Applicant cannot recall what she told the police at the time, but she denies that she took that number of tablets. There is also information in the COPS entry which casts doubt on the accuracy of the report.

70. The event record notes that when Police attended the Applicant’s residence, she was coherent and did not seem effected by the drugs she had taken. The police had an ambulance attend the address to assess the Applicant’s health and no treatment was required.

71. In light of this additional information in the event record, it is my view that it is unlikely that the Applicant would have taken sixteen Mersyndol tablets on that occasion. It is reasonable to expect that if she had taken sixteen Mersyndol tablets there would have been some symptoms e.g. drowsiness. However, the police who attended recorded that she was coherent and did not seem effected by the drugs. The ambulance officer who attended assessed the Applicant’s health and decided that no treatment was required.

72. It is uncertain why the Applicant would have informed the police that she had taken sixteen Mersyndol tablets. The event report notes that the Applicant indicated that she was experiencing problems in her life. The information that the Applicant provided to Ms Golledge does not provide any assistance.

73. Nevertheless, in light of my finding that it is unlikely that the Applicant had taken sixteen Mersyndol tablets, and the police event record that the Applicant had stated that she had no intentions or thoughts of taking her own life, the Respondent’s concern that the Applicant had attempted to take her own life must be given little weight.

74. In my view, it is probable that the Applicant experienced fleeting suicidal ideation between 1989 to 1992, but it is unlikely that she has ever attempted suicide or self-harm.

75. There is no doubt that the Applicant has suffered from depression for many years. It is also apparent that she was treated by psychiatrists. She saw Dr Richard Wu in late 1999 and early 2000s and Dr Mark Kneebone during 2006 to 2008. It is also apparent from the information provided by GP, Dr Phillip Seeley, that she has continued to receive treatment for depression. Nevertheless, it appears that the condition is stable. She continues her medication without the need for further treatment from either a psychologist or a psychiatrist.

76. Ms Golledge’s report refers to the Applicant’s mental health history. However, there is no suggestion that Ms Golledge had any source of information other than that provided by the Applicant and the referral from Dr Seeley. In the circumstances it is reasonable to conclude that the Applicant informed Ms Golledge that she had a history of suicidal thoughts between 1989 to 1992. She described fleeting suicidal thoughts during a relationship that involved domestic violence but she denied any plan or intent. She also denied subsequent or current suicidal ideation, harm to herself or to others.

77. There is clearly a conflict between the comment in the Golledge report the Applicant had a history of suicidal ideation between 1989 to 1992 and her statement that she has never had any suicidal ideation. This conflict is explained by the Applicant’s misunderstanding of the term ‘ideation’. In her evidence she asserted that ideation involves thoughts and plans. She has denied any plan or intent to suicide.

78. This misunderstanding of ‘ideation’ suggests that it is probable that the Applicant had a history of suicidal ideation between 1989 to 1992 because she had suicidal thoughts. However, there is no suggestion that she has had any suicidal ideation since that time.

79. I note the concerns raised by the Respondent in regard to Ms Golledge’s report. It is not in dispute that Ms Golledge has never treated the Applicant outside of this assessment. However, in the context this is not surprising. The Golledge report was obtained because of the request from the Respondent.

80. The Applicant has apparently been compliant with her medication and has an ongoing doctor-patient relationship with Dr Seeley. As a consequence, she has had no need for further treatment from either a psychologist or a psychiatrist.

81. I agree that the information relating to the Applicant’s mental health history that is contained in the Golledge report is limited to that provided by the Applicant. I also agree that there are qualifications in relation to the views expressed. However, it is my view that those qualifications do not override the conclusions of the report and that the report should be given some weight.

82. When the Golledge report is read in conjunction with the referral from Dr Seeley, and my view in regard to the December 2008 incident, the concerns about the Golledge report should not be determinative of the application.

83. The Applicant's suicidal ideations were over 30 years ago. Her post-natal depression was 27 years ago. The fact that she has remained on anti-depressant medication for 25 years suggests that she has been following her medical advice.

84. Dr Seeley has been treating the Applicant for over seven years. He reported that in that time there has been no self-harm by the Applicant or threats of harm to others.

85. Even if I am wrong about the December 2008 incident, it is now over 15 years since that incident occurred. Since that time her condition has stabilised and has been managed by medication. There is no suggestion that she has not been compliant with her medication. In fact, the evidence suggests that she sought help from Dr Seeley when she found that the medication needed to be varied at the time that her father died and her separation from her then partner.

86. I note the Respondent’s concern that comments in the Golledge report suggest that the Applicant may not be willing to seek psychological supports when needed, and that this would increase the risk to public safety if she was to obtain a firearms licence. However, the available the information about the Applicant’s history of treatment suggests otherwise. In my view it is reasonable to expect that the Applicant would seek help if the need arises in the future.

66. It is apparent that Dr Seeley does not have any concerns in relation to the risk to either the public or the Applicant should she be allowed access to firearms.

67. Ms Golledge’s report concluded:

It is my professional opinion that Anne Shearman does not have the potential to put public safety at risk if she were to have possession and use of a firearm. In terms of Anne’s personal safety, I do not believe she is at risk to herself by a holding a firearms license and possessing firearms.

89. There are always risks associated with possession of firearms. However, as has been noted above, only real and appreciable risk needs to be taken into account. In this matter, I am satisfied that the risk is theoretical. The mere fact that someone has suffered from depression does not of itself mean that they will misuse firearms. The way in which the depression is managed is a relevant consideration. The evidence before me is that the Applicant’s depression is well managed and stable.

90. With respect to the Respondent’s contention that the Applicant provided false and misleading responses in her licence application, I agree that the answer that she provided in regard to treatment for her mental health was false. However, I accept her explanation for the answer that she provided.

91. In regard to the answer to the question 'Have you ever attempted suicide or self-harm?’, the Applicant maintained that she has never attempted suicide or self-harm. In that context, her answer can be seen as reflecting her belief. In my view it is likely to have been a correct answer.

92. The Applicant concedes that she should have disclosed that she is taking medication for depression, but she says that she did not do so with any intention to mislead the Registry. In the circumstances, I accept that the Applicant did not intend to mislead the Respondent by providing false information.

93. I do not agree with the Respondent’s contention that the Applicant’s responses in her licence application bring into question whether she would act responsibly in complying with the requirements of her licence and the regulatory scheme if she was granted a firearms licence.

Finding

94. Notwithstanding the concerns expressed by the Respondent, it is my view that there is virtually no risk to the public should the Applicant be granted a firearms licence. Therefore, the decision to refuse her application for a firearms licence should be set aside and the licence should be granted.

Order

1. The decision by the Commissioner of Police to refuse the application by Ms Anne Shearman for a Category AB firearms licence under the Firearms Act 1996 is set aside.

2. In substitution for the Commissioner of Police’s decision, the application by Ms Anne Shearman for a Category AB firearms licence is granted.

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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: 08 March 2024