SMITH and COMMISSIONER OF POLICE - [2011] WASAT 31

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973 (WA)

CITATION: SMITH and COMMISSIONER OF POLICE [2011] WASAT 31

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 12 JANUARY 2011

DELIVERED : 21 FEBRUARY 2011

FILE NO/S: CC 1070 of 2010

BETWEEN: BENJAMIN STUART SMITH
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearms Act 1973 (WA) Whether applicant fit and proper person Issues raised concerning conduct and mental health Conduct denied Whether evidence of sufficient probative value to find person not fit and proper Evidence establishing applicant diagnosed with psychotic illness Effective current medical reports

Legislation:

Firearms Act 1973 (WA), s 11, s 11(1)(c), s 11(5), s 11(6), s 22(2), s 23B

Result:

Application refused

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Self-represented

Solicitors:

Applicant: N/A
Respondent: N/A

Case(s) referred to in decision(s):

Grover v Commissioner of Police [2005] WASC 263
Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant applied to the Tribunal under s 22(2) of the Firearms Act 1973 (WA) for the review of a decision made by the delegate of the Commissioner of Police, refusing his application for a firearm licence.
The Commissioner contended that the applicant is not a fit and proper person to hold a firearm licence, based upon the manner in which he had conducted himself in relation to three specified incidents, and because of the applicant's mental condition.
The Tribunal analysed the medical reports relied on by the parties and concluded that the applicant is not a fit and proper person to hold a firearm licence by means of his mental state.
The Tribunal addressed the quality of the evidence furnished by the Commissioner to establish the conduct alleged to support a conclusion that the applicant is not a fit and proper person to hold a firearm licence. The Tribunal noted that while s 11 of the Firearms Act 1973 (WA) identifies express grounds upon which the Commissioner, and therefore the Tribunal on review, cannot grant a licence, the section as a whole requires an opinion to be formed about whether a person is fit and proper to hold the relevant licence. While the evidence provided was not sufficient to support a finding, based on the applicant's conduct, that the applicant is not a fit and proper person, the Tribunal concluded that it was sufficient to create a doubt about whether the applicant is a fit and proper person to hold a firearm licence.
Having regard to both the applicant's mental state and the conduct in question, the Tribunal concluded that the applicant is not a fit and proper person within the meaning of s 11(1)(c) of the Firearms Act 1973 (WA) and consequently that the decision under review should be affirmed.

The application and issues for determination

The applicant applies to the Tribunal under s 22(2) of the Firearms Act 1973 (WA) (Firearms Act) for the review of a decision made by the delegate of the respondent, the Commissioner of Police (Commissioner), refusing his application for a firearm licence in respect of a 9 millimetre selfloading Beretta handgun. All references in the reasons to decision to sections of legislation are to the Firearms Act unless otherwise stated.
The licence application was refused, based solely upon s 11(1)(c), namely, that the Commissioner was (at the time of making the decision) of the opinion that the applicant is not a fit and proper person to hold the licence. The opinion was formed, according to the letter dated 26 July 2010 which informed the applicant of the decision, on the basis of the police attending at the applicant's residence in June 2008 which resulted in the applicant being committed to Graylands Hospital, a further police attendance at the applicant's home in March 2009 and a firearm licence refusal in 2009. Those grounds have been maintained in the proceedings before the Tribunal, and have been expanded upon to raise also an incident alleged to have occurred on 24 April 2008 when it is said that the applicant threatened a staff member at a Centrelink office. The applicant has provided different versions of the events relied upon by the Commissioner which, he contends, demonstrate he has not acted wrongly or inappropriately.
The parties have filed statements of issues, facts and contentions, and in the case of the applicant, a replying statement of issues, facts and contentions. While there are numerous issues raised, the outcome of the application will be determined by the resolution of the following principal issues, which subsume all issues raised.
1.Whether or not the applicant is a fit and proper person to hold a licence for the type of firearm sought by him, by reason of the applicant's mental state.
2.Whether or not the applicant is a fit and proper person to hold a firearm licence of the type sought by him, by reason of the conduct alleged against the applicant, either standing alone or together with the issue raised in 1 above.
The only issue raised which will not be incorporated within consideration of the above principal issues is the reliance by the respondent on the alleged refusal of a firearm licence in 2009 and, that is, shortly, for the following reasons. The Commissioner asserts in para 2 of his statement of issues, facts and contentions that an application for a firearm licence was made in 2009 and was subsequently refused. Further, that the applicant appealed the decision to the Tribunal and that the application was refused because it was made outside the review period. This is presumably intended to convey that there were underlying reasons for refusal of the licence which reflect on the applicant's suitability.
A copy of the order of the Tribunal is provided in the Commissioner's (respondent's) bundle of documents (RBOD) from which the application number of the 2009 proceedings can be identified as being CC 785/2009. The applicant has provided a copy of the transcript of the hearing of that matter and of the oral reasons for decision which were delivered on 21 August 2009.
The matter had nothing to do with an application for the review of a refusal to grant a firearm licence. The applicant was concerned that the Commissioner had written a letter dated 6 August 2008 to the President of the Whiteman Park Pistol Club (club), in terms which drew to the attention of the President of the club, that the Commissioner did not consider the applicant to be a fit and proper person to possess or use any type of firearm. Until the time when the club received the above letter, the applicant had been permitted by the club to use a firearm at the shooting range under its control which, under the legislation, it was permitted to do.
The Tribunal held that the above circumstances did not give rise to a reviewable decision and, taking that into account together with the other criteria for the grant of an extension of time, determined that the extension of time should be refused. In the circumstances, it is not necessary to address this issue any further, as it clearly has no bearing upon whether or not the correct and preferable decision is to uphold the decision under review or to direct that a firearm licence be issued to the applicant.
It should be noted that for some inexplicable reason the Commissioner did not refer in his statement of issues, facts and contentions to any incident in March 2009. However, the applicant referred to this incident in his application and was crossexamined about it. The incident actually occurred in February 2009. In the circumstances, that evidence will be considered by the Tribunal.

The relevant statutory provisions

(1)The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that
(a)to do so would be contrary to section 11A or regulations under section 11B or 11C;
(b)it is not desirable in the interests of public safety; or
(c)the person is not a fit and proper person to hold the approval, permit, or licence.

(2)Where the Commissioner is satisfied that a person has a history of, or a tendency towards, violent behaviour, the Commissioner may take it into account in deciding whether that person is a fit and proper person to hold an approval, permit, or licence.
(3)The Commissioner has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold an approval, permit or licence under this Act if the Commissioner
(a)is satisfied that at any time within the period of 5 years before the person applies for the approval, permit or licence
(i)the person was convicted of an offence involving assault with a weapon;
(ii)the person was convicted of an offence involving violence;
(iii)the person was convicted of any offence against this Act; or
(iv)a violence restraining order was made against the person,
whether in this State or in any other place;

(b)is satisfied that the person fails to meet standards of mental or physical fitness that the Commissioner considers to be necessary for the person to hold the approval, permit or licence; or
…

(4)…
(a)committing an offence against the person under Part V of The Criminal Code, other than Chapters XXXIV and XXXV; or

(5)The Commissioner may form an opinion that a person is a fit and proper person to hold an approval, permit or licence under this Act in a case in which the Commissioner has a sufficient ground under subsection (3) for forming the contrary opinion.
(6)Subsection (3) does not limit the Commissioner’s ability, when forming an opinion as to whether a person is a fit and proper person to hold an approval, permit or licence under this Act, to take into account
(a)a conviction or order made outside the period of 5 years referred to in paragraph (a) of that subsection; or
(b)anything else that could have been taken into account if that subsection had not been enacted.

…

Mental state

The applicant, in his evidence, denied that he had ever suffered a mental illness. It is difficult to give credence to that assertion because the applicant himself relies on two psychologists' reports which record that the applicant was being treated for a psychotic illness. One of these is a report dated 14 January 2009 from Mr Aaron Milward, a clinical psychologist employed by the Department of Health, Government of Western Australia at the North Metropolitan Health Service. Mr Milward advised that the applicant had been diagnosed with a psychotic illness and that his treating psychiatrists were of the belief that he requires treatment with medication. That diagnosis was not called into question by Mr Milward. There is also a report dated 3 September 2010 provided by Ms Rachel King, a registered psychologist. Ms King has not called into question, in any way, that diagnosis.
The applicant relies on the above reports to establish that his mental health is now sound. The Commissioner contends otherwise and relies on a report from Dr Helen Monkhouse, a consultant psychiatrist, dated 20 October 2010. Dr Monkhouse is also employed by the Department of Health, North Metropolitan Health Service.
It will be necessary to address each of the above reports. However, before doing so, it should be noted that the respondent, through the course of the directions hearing process, made it clear to the applicant that it did not consider that the reports relied on by the applicant were sufficient to establish his good health. At a directions hearing on 28 October 2010, the Tribunal raised with the parties whether they intended to call any expert witnesses. The Commissioner indicated that he would do so if the applicant intended to call expert evidence but otherwise he was content to rely on an argument as to the effect of the reports as filed with the Tribunal.
The applicant was of the view that the reports he relied upon clearly established his suitability to be granted a firearm licence and that he did not wish to call any expert evidence. The Tribunal endeavoured to explain to the applicant that it was entirely a matter for him as to whether he wished to call expert evidence but that, if he did not, the case might well turn on whether or not the reports relied on by him were sufficient to support his case. The matter was left on the basis that the applicant would give further consideration to this issue, and that if he decided to call expert evidence, he would give notice immediately to the Commissioner so that the Commissioner could arrange to call expert evidence, but otherwise the matter would proceed to hearing with both parties simply relying on the reports filed. In the result, the case was dealt with on that basis, without either party calling any expert witnesses to give evidence.
The report from Dr Monkhouse sets out the applicant's relevant medical history, which the other reports do not, and it is therefore appropriate to set out Dr Monkhouse's report first:
20th October 2010
Mr Simon Bagley
WA Police Legal Unit
Level 2, 297 Hay Street
EAST PERTH WA 6000
Dear Mr Bagley
Re:     Benjamin SMITH  DOB:       22.05.1975
          23 Karimba Street  FILE No:   K5387820
          WANNEROO WA 6065
I am writing in response to Mr Smith's appeal regarding the provision of a Fire Arms Licence.
Mr Smith has a psychiatric history dating back to June 1998. He has received varying diagnoses but in my opinion Mr Smith has Paranoid Schizophrenia. He has had several admissions to hospital, the first being in July 1998. Subsequent admissions occurred in November 1999, August 2003, June 2008 and February 2009. Following Mr Smith's last hospital admission he was placed on a Community Treatment Order to ensure compliance with treatment and follow up. Mr Smith was made a voluntary patient in June 2009, and continued to attend this service and complied with oral antipsychotic medication. Since July 2010 Mr Smith has reduced dosages of his antipsychotic medication of his own accord, and ceased medication entirely on the 1st September 2010. He attended a scheduled appointment to see me on the 19th October 2010, and has clearly stated that he wishes to be discharged from this service and to continue seeing a private psychologist. He would not disclose the name of his psychologist.
Mr Smith does not believe that he has a mental illness, and does not believe that he needs to take antipsychotic medication or to have ongoing review by a Psychiatrist. He does not believe that he will become unwell in the future. It is my opinion that there is a significant risk of future relapse, given Ben's illness history to date and that he is no longer taking antipsychotic medication.
It should be noted that in the past when Mr Smith has been unwell that he has been assessed as a risk to others. More specifically, he has experienced delusions where he felt at risk and has felt a need to carry a weapon with some ideation to harm others. It has also been stated that he has taken a knife to medical appointments in the past. There is also mention of Mr Smith making threats to 'take people with him' and 'stabbing people until he was shot'. Other features of note involve delusions revolving around the military, with a belief that he is a high ranking officer. In addition, Mr Smith's two most recent admissions were associated with concerns regarding his potential for violence towards family members.
In light of the above, I consider Mr Smith unsuitable to hold a Fire Arms Licence.
'Signed':
Dr Helen Monkhouse MBBS FRANZCP
Consultant Psychiatrist
The report from Mr Milward, dated 14 January 2009, is as follows:
14th January, 2009
Aaron Milward
Clinical psychologist
Joondalup Community Mental Health
Regents Park Road
Joondalup, WA
Police Licensing Service
Firearms Branch
297 Hay Street
East Perth, 6004
Perth, Australia
To Whom It May Concern:
I provide this letter on the request and on behalf of Mr Smith. I am a Clinical Psychologist working for the Department of Health in Joondalup where Mr Smith is a client of the service, however, I am not his treating clinician. I understand that Mr Smith wishes to be granted a firearms licence so he can participate in the sport of shooting at a local pistol club. Mr Smith requested that I write a letter, as a mental health professional, in relation to his application. We have therefore met on two occasions during which Mr Smith has been focused on the provision of this letter. Due to the time restrictions that were stipulated by Mr Smith we have only been able to meet on a couple of occasions. As such, the information in this letter represents predominantly my interpretation of information held within his file and some additional information gained during the assessment.
Please be aware, I do not judge myself or have professional qualifications in assessing someone's suitability to be in possession of a firearm. I provide only information on Mr Smith's mental health.
Mr Smith has been diagnosed with a psychotic illness and it is the belief of previous treating psychiatrists that he requires treatment with medication. I understand he chose to stop taking medication in July 2008, in part because he believed it was negatively impacting his chance of being accepted into the armed forces. At the time of assessment (last seen 24 December 2008) Mr Smith was continuing to not take medication. Mr Smith reported no low mood or depression. Neither did he appear as anxious, irritable or overly aroused. He did not appear to be thought disordered or to be impacted by psychotic symptoms. He did speak about beliefs that may be perceived as bizarre but there was not sufficient evidence to suggest they were representative of delusional thinking. Mr Smith has previously been hospitalised including a period in June 2008. Prior to this, his previous period of hospitalisation was in 2003. I understand from Mr Smith that he had been employed in casual work as a storeman but had been made redundant just prior to our second session. I also understand that Mr Smith had previously completed some units of a computer sciences diploma.
A copy of this letter has also been sent to Mr Smith.
'Signed':
Aaron Milward
Consultant Psychologist
The report from Ms King, dated 3 September 2010, is as follows:
Northern Suburbs Psychology
Rachel King
Joondalup Business Centre
15 Barron Pde
Joondalup WA 6027
Police Licensing Service
Firearms Branch
297 Hay Street
East Perth WA 6004
To whom it may Concern
I am a private practicioner [sic] in Psychology and Mr Smith was referred to Northern Suburbs Psychology through his General Medical Doctor, Dr Russell (on 27/07/10). Dr Russell states that Mr Smith would like to apply for admission to the RAAF and requires a psychological report to support his application. It is documented that Mr Smith has a previous diagnosis of a Mental Illness and has been put on medicine to stabilize his condition.
Mr Smith presented on 18/08/10 and again on 25/08/10 to discuss what he needs from me in this letter. Following these sessions I have formulated this letter at his request, no psychological testing or criteria have been assessed to support this letter. Information from the two sessions and some documents provided by Mr Smith are the basis for this correspondence.
At the time of the sessions Mr Smith claimed he was on a low dose of medication (treatment for psychotic illness). He is determined to reduce his dose towards cessation and his only concern about stopping the medication was a possible risk of insomnia. Through discussions of his Mental Health in the past a clear pattern appeared to be hospitalization, successful stabilization through medication and counselling leading to his release from care whereby Mr Smith weans himself off all medication. Hein [sic] lies my concern.
From my two sessions with Mr Smith while on a small dose of medication he seems happy, friendly and well functioning. He attended the two sessions on time, displayed appropriate affect and self regulation. I am however, unable to comment on his functioning when off medication.
There is no doubt that Mr Smith has a passion for gun shooting and even discusses intentions of competing. To a lesser extent he has also mentioned his interest in joining the RAAF and it seems that a requirement of admission is not to be on any medications. This is his conflict, that whether he need [sic] medication or not it does not fit with his plans for a career in the RAAF. I do not claim to have knowledge on his medical needs and thus cannot judge whether he can remain stable without the medication.
I also support the decision to allow Mr Smith to continue to shoot for leisure at the Shooting Clubs (even without a license). He genuinely enjoys shooting and seems to be building his skills and knowledge of the sport in a positive way.
In summary, at the time of our two sessions Mr Smith was on a low dose of Solian and presented as pleasant and well functioning and notably determined to get his gun license. He stated his intentions to continue therapy to track his progress when off the medication. I will be available to be contacted regarding any further feedback you require regarding his emotional state.

'Signed':
Rachel King
Psychologist.
3/09/10
It is apparent that Dr Monkhouse is the, or one of the, psychiatrists responsible for the applicant's medical treatment, at least in recent times. It is also apparent that various diagnoses had been given over the period commencing from June 1998 but that Dr Monkhouse considers the applicant to be suffering from paranoid schizophrenia. Dr Monkhouse's opinion is that there is a significant risk of future relapse, given the applicant's illness history and by reason of him no longer taking anti-psychotic medication.
Mr Milward states that he is not the applicant's treating clinician and that he is providing the report at the request of the applicant. He had met the applicant on two occasions which focussed on the provision of the report. Mr Milward relates that he understood that the applicant chose to stop taking medication in July 2008. The applicant reported no low mood or depression and he did not appear anxious, irritable or overly aroused, nor did he appear to be thought-disordered or to be impacted by psychotic symptoms. The applicant did speak about beliefs that might be perceived as bizarre but there was not sufficient evidence to suggest they were representative of delusional thinking.
It is to be noted that the applicant did relapse subsequent to the provision of Mr Milward's report and he was admitted to hospital for treatment just one month later in February 2009.
Ms King states in her report that it has been formulated, at the applicant's request, that she saw the applicant on two occasions for that purpose on 18 and 25 August 2010 and that no psychological testing had been carried out, nor had any criteria been assessed. The report is stated to be based upon the two sessions with the applicant and some documents provided by him. Ms King points out that in the past there has been a pattern of hospitalisation, successful stabilisation through medication and counselling leading to his release from care, followed by the applicant weaning himself off medication. Ms King expressed that it was this pattern which caused concern.
Although the applicant appeared to function appropriately in the two sessions with her, she was unable to comment on how he would behave when off medication. Importantly, Ms King noted that the applicant had stated his intention to continue therapy to track his progress when off medication.
The applicant's evidence discloses that he has not continued therapy with Ms King, although he did see her subsequently for the purposes of providing a medical report to the military authorities to support him in an appeal against an unsuccessful job application (rather than an application to be made for a job, as conveyed in Ms King's report).
At para 14 of the applicant's replying statement of issues and contentions filed on 2 November 2010, the applicant states that Ms King later used special testing and criteria to support a report provided by her to the RAAF (Royal Australian Air Force). The Tribunal inquired of the applicant why he had not provided a copy of this further report to the Tribunal. The applicant replied that he did not consider it to be relevant. This matter was raised with the applicant on a number of occasions during the hearing, on the basis that the Tribunal indicated that it may well be of assistance to the Tribunal to be provided with any further psychological report provided by Ms King. The applicant persisted in maintaining his position that the report was not relevant and declined the opportunity to provide a copy to the Tribunal.
Neither Mr Milward nor Ms King have had any responsibility for the applicant's mental health treatment. Subsequent to Mr Milward's report, the applicant was again hospitalised for medical treatment, and as appears from Ms King's report, he was released after stabilisation on medication. Ms King is herself concerned about the risk of relapse in the event that the applicant weans himself off all medication.
Notwithstanding the applicant's protestations, all the medical records and evidence reflect that the applicant suffers from a psychotic illness, and in the opinion of the expert witness most involved in the applicant's treatment, Dr Monkhouse, that there is a significant risk of future relapse. Further, Dr Monkhouse observes that when the applicant has been unwell in the past, he has been assessed as a risk to others. There is no medical evidence to rebut those concerns.
For the above reasons, I find there is a sufficient ground for forming an opinion that the applicant is not a fit and proper person to hold the firearm licence in question by reason of the applicant failing to meet the mental standards necessary for a person to hold such a licence. A person suffering from psychotic illness, and who is assessed by qualified medical practitioners to be a risk to others, is not a person fit to hold a firearm licence.
In arriving at the above conclusion, I reject the applicant's submission that, pursuant to s 23B, a registered psychologist is necessarily in a better position to express a view about the psychological health of a person. In the event of differences of opinion being expressed by a psychiatrist and a psychologist, the reasons for that difference would have to be carefully examined and assessed on their merit. In this instance, nothing turns on the fact that Dr Monkhouse is a psychiatrist and Ms King a psychologist. Ms King does not question any of the diagnoses made of the applicant.

Conduct of the applicant

The respondent has placed very little direct evidence before the Tribunal relating to the alleged conduct on the part of the applicant said to justify the refusal of the firearm licence except in respect of the incident which occurred on 24 April 2008.
The first incident relied upon occurred at the Centrelink offices in Joondalup on 24 April 2008. A signed statement has been provided by Mr Gordon Bleakley, dated 25 July 2008. Mr Bleakley is a Centrelink employee and states that he dealt with the applicant concerning the failure of Centrelink to pay monies directly into the applicant's account. He states that the applicant said to him:
Well, if you don't give me the money, I'll come back in here with weapons. I'm an ex-soldier and I'll go off in ways you've not seen before.
The applicant disputed having threatened Mr Bleakley in this way. He stated in his evidence that a payroll officer in the military who behaved in the same way as Mr Bleakley would be, in effect, at risk, because he was dealing with military personnel who were armed. In the applicant's replying statement of issues, facts and contentions (para 7), he adverted to the position he was going to have in the military as a payroll officer, paying soldiers who have weapons, and said 'if I did what you're doing right now, those soldiers would attack me with those weapons and that it's people like you who would probably cause someone to come over here with weapons and go crazy'.
The next incident occurred on 2 June 2008. The only information provided by the respondent to support this aspect of the matter is an incident report (RBOD page 14). The report records that police were informed by the applicant's nephew that he had been chased by the applicant with a knife. The incident is recorded as having occurred at between 7 pm and 8 pm. It relates that the police had difficulty gaining entry to the applicant's home because the applicant would not open the front door and locked himself in his room. There is a vague statement that the police were informed that the POI (person of interest the applicant) would either harm himself or possibly use a knife on someone. It is not clear who made that statement to the police. The report also indicates that the applicant had threatened Centrelink staff. It is not clear who informed the police of this event or of how others became aware of it. The police were accompanied by what is referred to in the report as a 'CERT Team'. It was explained in evidence that this appeared to be a reference to a psychiatric emergency team which is used in circumstances where it is alleged that somebody involved in an incident may have mental problems.
The applicant disputed much of this incident and, in particular, put in issue the veracity of the report said to have been made by his nephew. The applicant stated that he had an argument with his nephew some five hours before the police arrived. He further stated that he had been taking a shower and that was the only reason for the delay in giving the police access to the premises.
The next incident occurred on 24 February 2009. This appears to have been incorrectly referred to in the letter advising the applicant of the decision under review, as having occurred in March 2009.
The respondent tendered in evidence a computerised printout of an alert report (Exhibit 1) . It reflects in very terse terms:
Dealt with by police on 24/2/09 at home address (regarding his mental state). Became agitated and has looked at attending officers' firearms several times, making a comment similar to 'someone was going to die'. All care to be taken.
The applicant denied making any such threat. He was agitated as a result of his parents apparently calling the police following an argument he had with them, but he contended they had misinterpreted the situation.
As noted above, after the incident in June 2008 and February 2009, the applicant was again admitted into hospital for treatment, from which it can be inferred that the treating medical practitioners assessed the applicant as being mentally unwell on those occasions.
The applicant contends that the police, psychological emergency teams and the Tribunal should be applying the presumption of innocence, as it applies under criminal law, in considering allegations made against him. That contention is patently incorrect: see the discussion in Grover v Commissioner of Police [2005] WASC 263 (Grover).
The provisions of s 11 of the Firearms Act expressly preclude the Commissioner from granting a licence if the Commissioner is of the opinion that the person is not a fit and proper person to hold the licence. There are a number of express circumstances which are stated to constitute a sufficient ground for forming such an opinion. However, the provisions of s 11(5) and s 11(6) support a construction that ultimately, in order to exercise the discretion whether or not to grant the licence, the Commissioner, and therefore the Tribunal on review, must form an opinion on whether a person is (as opposed to 'is not') fit and proper to hold the relevant licence. As held in Hughes and Vale Pty Ltd v New South Wales (No 2)(1955) 93 CLR 127, the purpose of the expression 'fit and proper' is to give the widest scope for judgment and, indeed, for rejection. Further, when the question is whether a man is fit and proper to hold a licence is considered, it ought not to be confined to an inquiry into his character so that it is unwise to attempt any definition of the matters which may legitimately be inquired into, each case being dependent on its own circumstances (pages 156 157). In forming an opinion about whether a person is fit and proper, as determined in Grover, it is appropriate for the Commissioner, and therefore the Tribunal, to rely on information, if that information is sufficient to create doubt as to a person's good character or, in this case, whether the person is fit and proper.
The Commissioner takes a risk in putting before the Tribunal evidence or material which is not in the strongest possible form to establish that for which the Commissioner contends. In a case in which the applicant on review gives credible evidence, it may often be the case that the correct and preferable decision will then be that the material relied upon by the Commissioner is insufficient to create doubt about whether the applicant is a fit and proper person for the intended purpose.
In this case, while I have no doubt that the applicant genuinely believes all of the information he has put before the Tribunal, I did not find his evidence sufficiently convincing on the civil standard of proof, being on a balance of probabilities, for it to be accepted. This is particularly so in his attempt to explain the Centrelink incident. The applicant's own version as set out in his replying statement of issues, facts and contentions, in the contest of an angry exchange, is capable of being understood as a threat. The fact that medical practitioners considered it necessary to admit the applicant for medical treatment after the incidents in June 2008 and February 2009 casts doubt on his version of those events.
Taking all the information before the Tribunal which relates to the applicant's conduct, I am left with doubt that the applicant is a fit and proper person to be licensed to possess a firearm. While the nature of the evidence relied upon concerning the applicant's conduct is not sufficient to support a finding under s 11(1)(c) that the applicant is not a fit and proper person for that purpose, the effect of that section is that the discretion whether or not to grant the licence is then open. In view of the conclusion that I am not satisfied positively that the applicant is fit and proper, the correct and preferable decision, based on the alleged conduct, is that the decision under review should be affirmed.

Conclusion

When the question of conduct is taken together with the applicant's mental state as discussed above, it is open to conclude, and I do, that the applicant is not a fit and proper person within the meaning of s 11(1)(c).
Subsequent to the hearing, the Tribunal received an undated letter from the applicant. Its primary purpose was to request that the Tribunal telephone the applicant so that he is aware when the decision will be posted to him. The letter then proceeds to set out what the applicant seeks to achieve by the application. Views are also expressed concerning the firearms licensing regime. The applicant expresses views about how all persons manning licensing services throughout Australia should be replaced by military personnel and others selected by himself. He also sets out questions which he suggests should be put to any person applying for a firearm licence. His questions appear to be directed towards ensuring that only persons engaged to be married or married under the Christian religion, or prepared to be so engaged or married, ought be licensed. There is also a question suggesting that people who hold intellectual property rights should have particular entitlements in relation to the holding of firearm licences.
A copy of this letter was provided to the Commissioner but no further submissions have been received from the Commissioner.
Some of the views expressed by the applicant in this letter may be described as bizarre. As outlined above, the report of Mr Milward identified that the applicant sometimes expressed bizarre views but indicated that it did not indicate delusional thinking. In the light of Mr Milward's opinion, the letter is viewed as being neutral to the parties' respective cases and has not been relied upon to support the Tribunal's conclusions in this matter.

Orders

Consequently, for the reasons expressed above, addressing the applicant's mental state and conduct, the Tribunal will make an order as follows:
The decision under review, refusing the applicant's application for a firearm licence, is affirmed.

I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER