Woodward v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 25

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Woodward v Commissioner of Police, NSW Police Force [2024] NSWCATAD 25

Hearing dates:

17 August 2023

Date of orders:

31 January 2024

Decision date:

31 January 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Mobbs, Senior Member

Decision:

1. The decision under review is set aside.

2. The Respondent is to grant the Applicant a category AB firearms licence.

Catchwords:

ADMINISTRATIVE LAW – Firearms licensing- refusal - public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Firearms Act 1996

Mental Health Act 2007

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

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

Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

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

Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63

Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89

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

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

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

McDonald v Director-General of Social Security (1984) 1 FCR 354

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210

Shi v Migration Agents Registration Authority [2008] HCA 31

Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184

Su v Commissioner of Police, NSW Police Force [2023] NSWCATAD 43

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Donald Woodward (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self-represented)
McCullough Robertson Lawyers (Respondent)

File Number(s):

2023/00122532

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. Mr Donald Woodward (the Applicant) applied to this Tribunal on 17 April 2023 for review of a decision by the Commissioner of Police, NSW Police Force (the Respondent) to refuse his application for a category AB firearms licence.

2. The Applicant submitted his application for a category AB firearms licence on 20 March 2022 (Application).

3. On 13 December 2022, the Respondent refused the Application on the basis that whilst a risk assessment report had been obtained, it did not provide all of the information required. Further information had been requested but had not been received. Accordingly, the Application was refused on the basis that the issue of a firearms licence to the Applicant would not be in the public interest.

4. On that same day, the Applicant applied for an internal review of the Respondent’s decision and on 30 March 2023, the Respondent affirmed the decision to refuse the Application.

Applicable legislation

5. The general principles and objects of the Firearms Act 1996 (the Act) are set out in s 3 as follows:

(1)  The underlying principles of this Act are—

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

(b)  to improve public safety—

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

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

(c)  to facilitate a national approach to the control of firearms.

(2)  The objects of this Act are as follows—

(a)  to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b)  to establish an integrated licensing and registration scheme for all firearms,

(c)  to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d)  to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

(e)  to ensure that firearms are stored and conveyed in a safe and secure manner,

(f)  …

6. Section 11 of the Act relevantly provides:

11 General restrictions on issue of licences

...

(3)  A licence must not be issued unless—

(a)  the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

...

(7)  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.

Issues

7. The Respondent relied on an incident in which the Applicant was reported to police as a missing person by a relative in July 2018. Concerns were expressed by the relative that the Applicant may have been suicidal following a recent separation from his partner. As a result of the incident, the Respondent held concerns in relation to the Applicant’s mental health. Whilst the Applicant did not deny that he had been reported missing, he denied having had suicidal thoughts and any mental health issues. The primary issue in contention is whether or not the Applicant has, or has had, thoughts of self-harm or any mental health issues.

8. In these Reasons, in order to protect the anonymity of certain third persons, I will refer to them by reference to their relationship with the Applicant, rather than by name.

The evidence

9. The matter was heard before me on 17 August 2023. The Respondent did not call any oral evidence and relied on the s 58 documents (exhibit R1) together with material obtained on summons from the Applicant’s treating practitioner, Dr Sudha Jayaraman (exhibit R2).

10. The Applicant relied on the application for review filed with the Tribunal and the attached documents (exhibit A1), a ‘corrected’ report of Dr Thurairetnam Sivaruban dated 3 April 2023 (exhibit A2), the bundle of material dated 18 May 2023 (exhibit A3), the ‘rebuttal’ documents dated 29 June 2023 (exhibit A4) and a document dated 21 July 2023 (exhibit A5). The document dated 21 July 2023 could not be located on the file and a copy was handed up by the Applicant at the hearing.

11. The Applicant gave evidence and was cross-examined by Mr Roberts, the solicitor appearing on behalf of the Respondent.

After the hearing

12. Various documents were received from the Applicant after the hearing and whilst the proceedings were reserved, awaiting a decision. On 31 October 2023, the Registry emailed the parties to advise that there had been no leave granted for the filling of further material or submissions in the matter. The email indicated that if the Applicant was seeking leave to rely on the emailed material, he must complete an application for miscellaneous matters and provide a copy of the application and the documents or submissions to the other side and provide the application and material in hard copy to the Tribunal.

13. On 7 November 2023, the Applicant lodged an application seeking an order that the Tribunal “consider more information for decision”. The grounds for the application were said to be that there was “no NCAT decision to date 30/10/23 more information may help.” A letter dated 26 October 2023 from Dr Jayaraman was attached, as was a trail of emails between the Applicant and McCullough Robertson Lawyers. The initial email in that trail did not contain a date (initial email).

14. The letter dated 26 October 2023 from Dr Jayaraman was not in evidence before the Tribunal, but the trail of emails had been included, together with further emails in that trail, in a bundle of documents that the Applicant had filed with the Registry on 18 May 2023 (exhibit A3). It was apparent from the emails in evidence that the initial email from the Applicant to McCullough Robertson Lawyers had been sent at 12.52 pm on 8 May 2023.

15. The Applicant did not provide any submissions in relation to his application. On 9 November 2023, Mr Roberts submitted that the Respondent opposed the application and that leave should not be granted for the filing of any further documents because:

1. To the extent that the documents seek to address the alleged errors referred to in the Applicant’s email to the representatives for the Respondent, they are matters that could have been addressed at any time since May 2023, should have been addressed prior to the hearing and for which there is no explanation for the failure to do so.

2. They would prejudice the Respondent as they seek to rely on evidence created after the hearing of the matter and the parties’ cases have closed and final submissions have been made; and

3. The documents would, if admitted into evidence, be given little, if any, weight in the proceedings.

16. In support of the submission that the documents would, if admitted into evidence, be given little, if any weight, the Respondent observed that:

1. The substance of Dr Jayaraman’s report is to simply repeat what the Applicant informed her, rather than to provide an independent medical opinion; and

2. Dr Jayaraman’s statement in the report is inconsistent with the referral to Dr Sivaruban.

17. Orders were made by Senior Member Ransome on 9 May 2023 that included directions for the service of material by the parties prior to the matter being listed for hearing on 17 August 2023. As referred to above, the trail of emails was filed by the Applicant on 18 May 2023 and is in evidence before the Tribunal. The initial email from the Applicant sent at 12.52 pm on 8 May 2023 (part exhibit A3) stated (sic) “Have just read the doctor’s paperwork that I just sent you, some errors in it. Happy to do more Statuary declarations if required to refute”.

18. In light of the email from the Applicant, it is apparent that as of 8 May 2023, he believed that there were errors in the doctor’s paperwork and at that time, he had the opportunity to obtain evidence from Dr Jayaraman on this issue and to file it with the Registry in accordance with the timetable set by Senior Member Ransome. No reasons were provided in the application for the delay in obtaining and providing the letter from Dr Jayaraman. In any event, the Applicant gave evidence at the hearing in relation to the medical notes and referral letter from Dr Jayaraman and to the errors that he stated were contained in those documents. Accordingly, I accept the Respondent’s submissions on this issue and the application by the Applicant to file and rely on the letter from Dr Jayaraman dated 26 October 2023 in these proceedings is refused. I give no further consideration to the material provided by the Applicant after the hearing, including that letter.

Role of the Tribunal

19. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent’s decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 63 of the ADR Act provides that in determining an application for review, the tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 [28]-[30], [34]. In an application for review the Tribunal is not restricted to a consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

20. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23]. Accordingly, the objects and purposes of the Act are relevant.

Evidence

July 2018 Incident

21. The Respondent relied on COPS Event Reference Number E 131978301 (part exhibit R1) (2018 COPS Event) that was created on 8 July 2018. The 2018 COPS Event recorded that around 5.20 pm on that day, a relative of the Applicant attended Redfern Police Station to report that the Applicant was missing. She informed police that the Applicant was last seen at around 11.00 am on 5 July 2018, that he had recently separated from his partner (about two or three weeks prior) and that he had been staying with his aunt.

22. The Applicant’s relative also informed police that the Applicant:

1. was believed to have been having suicidal thoughts in the days leading up to his disappearance and had told his aunt something along the lines of “it is all getting too much, I can’t handle it anymore”; and

2. had disappeared for a 24-hour period before, when his child was born, because it all got a bit much for him.

23. At around 8.20 am on 11 July 2018, his aunt told police that the Applicant had returned to her home about 20 minutes earlier and was asleep. At around 1.20 pm on that day, police attended the residence of the Applicant’s aunt and spoke with the Applicant. The Applicant appeared fit and well and informed police that he just wanted time to himself and had just returned from visiting a mate and discussing future employment. The Applicant was reported as saying that he had turned his phone off during this period as he had just separated from his partner and child and wanted his own time without family contact. The Applicant said that he had no thoughts of self-harm as he had a child to look after. Police recorded that the Applicant appeared “rational and held an intelligent conversation”.

24. It was recorded that the person was now located and “NFA”, which I take to be a reference to no further action being taken in relation to the incident.

The Application - 2022

25. In his Application, the Applicant answered “No” to the question “Have you, in the past 12 months, been referred or treated for a mental or nervous disorder or illness”. It was not contended in the proceedings that this was not a truthful response and I accept that it was truthful.

26. On 29 April 2022, a letter was sent by the Respondent to the Applicant (part exhibit R1) indicating that the Firearms Registry had received information relating to the Applicant’s mental health which raised concerns that his ability to possess and use firearms may be impaired. It stated that the information indicated that the Applicant may have a health problem related to a mental disorder or illness. The letter continued on to state that information maintained by NSW Police revealed that on “5 July 2018 police were called due to your disappearance, (sic) before disappearing Police were told that the weeks leading up to your disappearance you mentioned to your family member that you were having suicidal thoughts and that you had also told your Aunt that it is all getting to (sic) much, I can’t handle it anymore”. The information relied upon by the Respondent was clearly the 2018 COPS Event.

27. The letter stated that in order to allow the Application to proceed, a number of steps were required to be followed, including that the Applicant read and sign the attached Medical Report Authorisation and that a report would then be obtained from a psychologist or psychiatrist and sent to the Firearms Registry. Upon return of the medical assessment, the Firearms Registry would make a decision as soon as possible in relation to the Application.

28. The Applicant wrote to the Firearms Registry on 11 May 2022 (part exhibit R1) stating that (sic):

…I think it is great that NSW Police take suicide matters so seriously…

…At the time of July 2018, I was going through a family breakup, so not an easy time for any one. With reference, to my aunt’s words not mine “it is all getting much, I can’t handle it any more” On oath in a court of law, I would deny that I said these word. With regards to my phone being turned off for a week, I wanted to unplug from the world for a time and not be contacted by any one, because I wanted to deal with my own thoughts at this difficult time. (caving as I call it and many men also do). I could go on and describe a lot more about men and women different approaches to difficult times and the difficulties the communicative age puts on mankind.

The words I did say were “I’m going away. I will be ok, I’m ok” or words to that effect. I think it was a difficult time for all involved, and things got a bit out of hand and control, basically because my family love me so much.

Medical evidence

29. On 11 May 2022, the Applicant’s treating practitioner, Dr Jayaraman, referred the Applicant to Dr Sivaruban. The referral letter (part exhibit R2) stated that the Applicant (sic):

had h/o depression in the past secondary to family break up 4 years ago, at that time he has been stressed and his firearm licence has been cancelled due to his mental health instability. He is willing to get his firearm licence back. He says he is in stable mood with no significant changes and he has overcome from the trauma. He need a mental health assessment medical report to help him get his firearm licence. He is kindly referred to you for full assessment and supporting document…

30. Under the headings “Past History” and “Condition” referred to in the letter, there is no reference to depression or any other mental health condition and there is no reference in the letter to medication for treatment of such conditions.

31. The material from Dr Jayaraman that was relied upon by the Respondent also included what appeared to the notes of her consultation with the Applicant on 11 May 2022. The notes include the following information:

• History of depression

• Had a family break up – 4 years ago. Since that time, he was in depression - which is reported to police and his firearm has been removed from him. He is willing to get back his firearm licence.

• For that he needs a mental health assessment by psychiatrist to get the licence back. Request for a referral

• Made a referral to Psychiatrist.

32. Under the heading “Health Assessment”, the notes make reference to “K10Assessement”, with a series of questions and responses. Whilst there appears to be a hyperlink in the document to the result of the assessment, the result was not in evidence. A Patient Health Summary in relation to the Applicant dated 19 May 2023 forms part of the records produced by Dr Jayaraman and there is no reference to the Applicant having depression or any mental health conditions or taking medication for such conditions.

33. The Respondent subsequently received a copy of an assessment of the Applicant by Dr Sivaruban, Psychiatrist, dated 31 May 2022 (part exhibit R1) (2022 Risk Assessment) in which he provided responses to the Mental Health Risk Assessment Questionnaire. In the 2022 Risk Assessment, Dr Sivaruban confirmed that he had conducted a psychiatric assessment on the Applicant on 31 May 2022 and that the Applicant’s referring practitioner provided him with a detailed referral letter.

34. Dr Sivaruban stated that the Applicant:

…reported that he had no formal diagnosis of a mental disorder in the past. However, he reported that he was reported as a missing person to the Police by his family after he went caving for a week after being separated from his partner of 9 years, and he was upset. He denied any suicidal ideation then, and he just wanted to have time away from home to deal with separation, and the whole thing blew out of proportion, He reported that he did not require any treatment for a psychological condition.

His current mental state is stable.

He denied any current and past suicidal ideation and any risk-taking behaviours in the past.

He reported that he never held a firearm licence in Australia and used to go shooting as a hobby in his early life in the UK before migrating to Australia in 1983.

35. Dr Sivaruban reported that he did a “comprehensive psychiatric assessment, and no tools/questioners were used” and opined that the Applicant had “no diagnosable mental disorder”. In response to question 7, Dr Sivaruban stated that the Applicant “is on psychotropic medication”. In response to the question, “In your expert opinion, does the customer: 1. Currently have the ability to form a rational judgment or exercise will power to control physical acts in accordance with rational judgment”, Dr Sivaruban said “Yes”. In response to the question “In your expert opinion does the customer’s condition or impairment have the potential to put public safety at risk if they were to have possession and use of a firearm? (please note that a reference to “public safety” includes the safety of the person being assessed)”, he said “No”. He indicated that no other matters were considered relevant.

36. On 15 November 2022, the Firearms Registry emailed Dr Sivaruban (part exhibit R1) seeking further, information including the following:

1. A copy of the Medical Report Authorisation signed by the Applicant;

2. A copy of the source material from the general practitioner that Dr Sivaruban used to form an opinion;

3. Information covered in the psychiatric assessment and a summary of the information provided; and

4. Further details in relation to the medication.

37. On 13 December 2022, the Respondent, having not received a response from Dr Sivaruban, refused the Application. That decision was affirmed by the Respondent on internal review on 30 March 2023. A further report from Dr Sivaruban dated 3 April 2023 was subsequently provided to the Respondent (Updated 2022 Risk Assessment) (part exhibit A1 and exhibit A2) that included a note stating that (sic) “[o]n my initial report dated 31.05.2022, I made an unintentional error when answered to question 7”. The Updated 2022 Risk Assessment included the following relevant changes to the 2022 Risk Assessment:

1. Removed the word “detailed” from the reference to the referral letter;

2. Removed the words “Did a comprehensive psychiatric assessment”, so that the response read “No tools/questionnaires were used.”

3. In response to question 7, included the word “not”, so that the response was that the Applicant “is not taking psychotropic medication”.

38. There was no evidence before the Tribunal that Dr Sivaruban provided the further information requested by the Firearms Registry in the email of 15 November 2022. Neither Dr Jayaraman nor Dr Sivaruban gave evidence before the Tribunal.

Further evidence from the Applicant

39. The Applicant’s request for administrative review by the Tribunal was accompanied by a letter from the Applicant dated 4 April 2023 (part exhibit A1), in which he stated:

1. “I do not take psychotropic medication”; and

2. “I do not have history of mental illness. If I did it would be in my medical records along with the alleged psychotropic medication I apparently should be taking.”

40. The Applicant also provided a Statutory Declaration dated 3 April 2023 (part exhibit A1) that he does not take psychotropic medication and that he does not have a medical history of mental illness.

41. The Applicant also relied on a letter addressed to Mr Roberts dated 21 July 2023 (exhibit A5) in which the Applicant requested a response to two questions. Whilst it was not appropriate for Mr Roberts to respond to these questions at the hearing, they serve to reflect the Applicant’s position on a number of matters. The Applicant questioned the grounds for a psychiatric assessment when the Respondent did not have any reports on him harming himself, or others. He noted that the only report that the Respondent had in relation to him was the report of him being missing some five years earlier and whether it was believed that the person making the false allegations knew the Applicant’s mind better than the Applicant.

42. The Applicant asked why he had only found about the false allegations as to what he supposedly said five years earlier when he applied for his firearms licence. He stated that he was not told about these allegations in 2018 when he was asked about whether he had suicidal thoughts and that if the allegations had been conveyed to him at the time by police, he would have had some context as to why he was being asked those questions. The Applicant said he did not receive any report on the false allegations at the time and that it feels like a violation of his rights.

43. The Applicant gave oral evidence in the proceedings and was cross examined by Mr Roberts. The Applicant denied saying to his aunt in 2018 that “it is all getting too much, I can’t handle it anymore”. The Applicant denied any experience of feeling suicidal at that time and stated that he has a child and is not going to commit suicide. He stated that his child was aged about 6 years old at the time he was reported missing in July 2018. The Applicant acknowledged that he had been uncontactable for six to seven days in July 2018 but said that before he had left, he had said to his aunt several times that he “would be OK”. He said that he did not want to talk to anyone and just wanted to go “caving” and he had his phone turned off. The Applicant said he was down in Victoria at a friend’s house, and he did not want to talk to family.

44. The Applicant agreed that police attended his aunt’s property and spoke to him on his return. He said that they spoke to him several times and kept asking him if he had suicidal thoughts. He said that he felt a bit awkward and that the questions appeared to be out of context, but he said that he told them that he had not had suicidal thoughts and that he had a child. He gave evidence that his reference to “caving” was a reference to mentally wanting to be alone.

45. Mr Roberts asked him about the reference by his relative to the Applicant’s previous disappearance. The Applicant said that he had turned his phone off for 24 hours when his child was born with down syndrome in 2012. He said that he was at home and had not disappeared, and wanted time to deal with it. The Applicant’s evidence was that he may have turned his phone off at other times but that the 2018 incident was the only time that he had gone “caving”.

46. The Applicant denied any mental health issues in July 2018 and stated that he was just coping with grief and just needed time to work through things. Other than the appointment to get the referral to Dr Sivaruban, the Applicant denied seeing a medical practitioner in relation to his mental health and denied having ever had mental health issues. He stated that Dr Jayaraman made several mistakes in her referral letter, namely that she referred to a history of depression and also stated that he had his firearms licence cancelled, neither of which were true. He stated that he had never had a firearms licence in Australia. When asked about Dr Jayaraman’s reference to a history of depression, he said that he did not know where she got it from. He denied having told her this and said that he told her that he had been going through a family break up and that it was a difficult time. He said that he had no idea why she put in the reference to his firearms licence being cancelled and that she had not listened to what he said.

47. The Applicant denied telling Dr Sivaruban that he had been on psychotropic medication. He said that he had never said that and had never been on it. He said that he had never been on medication for mental health issues “ever”.

48. The Applicant referred to having an air rifle as a teenager in the United Kingdom and said that he did not require a firearms licence for it. He stated that he had never had a firearms licence in any country and that he had never had his licence cancelled.

49. The Applicant gave evidence that before he left his aunt’s home in July 2018, he told her twice that he “would be O.K.” He said that his aunt was around 75 years old at the time and that she was overly worried about him. He said that his aunt and other relative both loved him. He said that he was unaware of exactly what had been reported to police in July 2018 and only heard about it some four years later. The Applicant said that it would have been better if he had been told about the concerns at the time as he would have understood the context of the police questions.

Submissions

50. The Respondent relied on the outline of submissions filed on 23 June 2023. The Applicant relied on his submission statement dated 18 May 2023 and which was attached to the bundle of material of the same date (exhibit R2). Mr Roberts made brief oral submissions and indicated that the Respondent relied on the 2018 incident and the fact that the Applicant’s GP referred to a history of depression, which arose from a consultation with him. The Applicant also made brief oral submissions that primarily reiterated the factual mistakes made by his doctor.

Consideration

2018 incident

51. Other than the Applicant’s evidence, the only evidence in relation to the 2018 incident is the 2018 COPS Event. As outlined above, the 2018 COPS Event records that a relative of the Applicant reported him missing on 8 July 2018. At the time that the Applicant was said to have gone missing on 5 July 2018, he had been staying with his aunt in a property near Albury. The reference in the 2018 COPS Event that it was “believed” that the Applicant was having suicidal thoughts in the days leading up to his disappearance came from the Applicant’s relative. Reference is also made in the document that it was the Applicant’s relative who told police that the Applicant had told his aunt “something along the lines of it is all getting too much, I can’t handle it any more”. The references to his recent separation, to his child with down syndrome and to his previous disappearance for a 24-hour period when his child was born all appear to have come from the Applicant’s relative.

52. There is no evidence that the Applicant’s relative had been at the property near Albury up to, or prior to 5 July 2018, or that she had spoken to him around this time. The report to police at Redfern Police Station strongly suggests that the Applicant’s relative resided in Sydney at that time. There is no reference in the 2018 COPS Event to any discussion with the Applicant’s aunt about her interactions with him on or before 5 pm on Sunday, 8 July 2018 or to any conversation that she had with him prior to him leaving the property or concerns that she may have held. There is no evidence to suggest that the Applicant’s aunt was even aware that the Applicant had been reported missing or that she contacted police at any time. The 2018 COPS Event indicates that it was the police who called the Applicant’s aunt at about 8.20 am on 11 July 2018, and it was at that time that she told police that the Applicant had returned.

53. No statement or other material was provided by the Applicant’s relative or by the Applicant’s aunt in relation to the 2018 incident and neither of them gave evidence in the proceedings. Of note, the Application included a Letter of Authority/Permission to Shoot/Recreational Hunting/Vermin Control dated 19 July 2022 from the Applicant’s aunt (part exhibit A1) giving him permission to shoot on her property. The provision of such a letter strongly suggests that the Applicant’s aunt held no concerns about the Applicant obtaining a firearms licence or possessing or using firearms as of 19 July 2022 and there was no evidence to the contrary before the Tribunal.

54. It appears from the 2018 COPS Event that police attended the Applicant on the day that he returned to his aunt’s property and that he
    “appeared rational and held an intelligent conversation”. No further action is recorded as having been taken by the police in relation to the 2018 incident after that date.

55. The Applicant has consistently denied any suicidal thoughts or attempts at self-harm, including in his evidence before the Tribunal and said that he would not commit suicide as he has a child. His evidence in relation to the 2018 incident has been consistent and I accept his evidence in relation to the account of the 2018 incident. I also accept his evidence that he did not ‘disappear’ for 24 hours after the birth of his child in 2012 but was at home with his phone turned off.

56. Having regard to the Applicant’s evidence and to the absence of any direct evidence from the Applicant’s aunt or his other relative, I am satisfied that the Applicant was not having suicidal thoughts or thoughts of self-harm in the days prior to 5 July 2018 and that he did not say words to the effect of “it is all getting too much, I can’t handle it any more”. I accept that the Applicant’s family loved him and were worried about him given his recent separation from his partner. It is likely that the relative’s knowledge of the Applicant’s recent separation impacted on her perception of his action in leaving his aunt’s property some days before and her subsequent report to police.

Medical Evidence

57. The Respondent placed reliance on Dr Jayaraman’s notes of her consultation with the Applicant on 11 May 2022 and her referral of him to Dr Sivaruban to obtain a mental health assessment (part exhibit R2), both of which refer to depression. The Applicant gave evidence that he did not know where Dr Jayaraman got this from and that he told her that he had been going through a family break up and that it was a difficult time. He submitted that the notes and referral letter include several mistakes.

58. I accept that Dr Jayaraman’s notes, and referral letter, contain some inaccuracies. The notes for 11 May 2022, include that after the family break up four years previously, the Applicant “was in depression” and this was “reported to police” and his firearm had been removed from him. She noted that he “is willing to get back his firearm licence”. In her referral letter to Dr Sivaruban, Dr Jayaraman mentions that the Applicant’s firearm licence had been cancelled due to his “mental health instability”.

59. There is no reference to “depression” in the 2018 COPS Event and there is no evidence of any report to police of the Applicant being depressed. The only reference to that term appears to come from Dr Jayaraman’s notes and referral letter. Further, there is no evidence that the Applicant has previously held a firearms licence in NSW or elsewhere and accordingly, cannot have had a firearms licence cancelled for any reason, including for depression or for mental health instability. There is no evidence that the Applicant has had possession of a firearm in Australia and no evidence of any firearm being removed from him.

60. The notes make reference to a “K10Assessment”, and the Respondent submitted that the Applicant completed a Kessler Psychological Distress Scale (K10 assessment) on 11 May 2022. There is no expert evidence as to the meaning of the reference to “K10” in the report and even if the Respondent’s submission was accepted on this point, there is no evidence as to the manner that any assessment was administered and no evidence of the result. The referral letter to Dr Sivaruban does not refer to the K10 Assessment being carried out, there is no mention that the reference to depression relates to the K10 assessment and no evidence that a copy of the result was provided by Dr Jayaraman to any person, including to Dr Sivaruban.

61. The referral letter refers only to “depression” in the “past secondary to family break up four years ago”. There is no evidence before the Tribunal to suggest that Dr Jayaraman diagnosed or treated the Applicant for any past depression, including in 2018, or that she was even aware of the family break up prior to the consultation in May 2022. There is no reference anywhere in Dr Jayaraman’s remaining notes and records, to the Applicant having any depression or mental illness and no record of any treatment or medications in relation to such conditions. It would appear from her reference to “h/o depression in the past” that Dr Jayaraman may have interpreted the Applicant’s reference on 11 May 2022 to having a difficult time around his breakup, as “secondary” depression in 2018. In any event, in light of the evidence from the Applicant and the various inaccuracies referred to above, I place little to no weight on Dr Jayaraman’s notes of 11 May 2022 or to the referral letter to Dr Sivaruban, including the references to depression.

62. The 2022 Risk Assessment from Dr Sivaruban, a psychiatrist, refers to the Applicant reporting that he had no formal diagnosis of a mental disorder in the past and to having denied any current and past suicidal ideation and risk-taking behaviours. This reporting is consistent with the findings that I have previously made. Dr Sivaruban refers to the Applicant’s report of the 2018 incident and again, this is consistent with the findings that I have previously made. Dr Sivaruban accurately records that the Applicant reported that he had never held a firearms licence in Australia. He opined that the Applicant had no diagnosable mental disorder and identified no risks or other relevant matters in relation to the Applicant having the possession or use of firearms.

63. In his Updated 2022 Risk Assessment, Dr Sivaruban acknowledged having made an unintentional error in the 2022 Risk Assessment and stated that the Applicant is “not” taking psychotropic medication. I find that there is no other evidence to suggest that the Application was taking psychotropic medication, or that he needed to take such medication. Accordingly, I find that Dr Sivaruban’s reference to this medication in the 2022 Risk Assessment was a mistake that was corrected in the Updated Risk Assessment. I accept that the Applicant has never taken psychotropic drugs, or had a mental health condition that required such medication Taking all of the evidence into account, I accept the opinion expressed by Dr Sivaruban in relation to the Applicant.

Request for Risk Assessment

64. As referred to previously, the Respondent requested the 2022 Risk Assessment due to concerns arising out of the 2018 incident. The letter referred to information maintained by the Respondent relating to the 2018 incident and that “before disappearing Police were told that (sic) the weeks leading up to your disappearance you mentioned to your family member that you were having suicidal thoughts”. The reference to the Applicant having “mentioned” suicidal thoughts to a family member does not appear in the 2018 COPS Event and no other evidence was adduced in relation to such a “mention” by the Applicant. Accordingly, I find that the Applicant did not mention or voice suicidal thoughts to any person on or prior to 5 July 2018. The reference to the Applicant mentioning suicidal thoughts contained in the letter from the Respondent dated 29 April 2022 does not appear in the 2018 COPS Event and was not factually correct.

65. In light of my previous findings, it is apparent that the matters referred to in the letter dated 29 April 2022 to ground the Respondent’s concerns that the Applicant’s ability to possess and use firearms may be impaired, and to seek a Risk Assessment from a psychologist or psychiatrist, are not supported by the evidence before the Tribunal. No other evidence has been adduced by the Respondent to establish any other concerns about the Applicant’s mental health as of 29 April 2022 or to support a Risk Assessment being required. It is to the Applicant’s credit that he obtained a report from Dr Sivaruban, and it is unfortunate that the initial 2022 Risk Assessment contained an error in relation to psychotropic medication, which was not corrected until 3 April 2023. In the circumstances, I give no weight to Dr Sivaruban’s failure to provide the additional material sought by the Respondent.

Conclusion

66. There is no direct evidence in the 2018 COPS Event, and no further evidence at all that establishes that the Applicant had thoughts of suicide or self-harm in July 2018. An indication of concern and worry by the Applicant’s relative in July 2018 in reporting him as missing, is not evidence that the Applicant suffered from any mental health condition or impairment at that time, or at any subsequent time. The only direct evidence of the events in July 2018 was that given by the Applicant in the written material and in his oral evidence and I have accepted his version of events.

67. On that basis, it is clear that whilst there were references to what the relative believed and what she understood to have been said by the Applicant prior to him leaving his aunt’s property, these references are not supported by the evidence. Accordingly, there appears to have been no factual basis for the concerns relied upon by Respondent to request that the Applicant undergo a Risk Assessment. In his letter of 11 May 2022, the Applicant told the Respondent what had occurred during the 2018 Incident. He stated that he thought it was “great that NSW Police take suicide matters so seriously” and, even though he denied suicidal ideation, or any mental health issues, he subsequently saw Dr Sivaruban for the purposes of the 2022 Risk Assessment. I have accepted that the Applicant had no diagnosable mental disorder, and that no risks were identified by Dr Sivaruban.

68. The Applicant has no criminal history and the only evidence that he has ever come to police attention, other than in relation to the events in 2018, arises from his traffic record (part exhibit R1). Whilst the record contains a number of matters in the period from 1994 to 2010, there has been only one further matter since that time, namely a speeding matter in 2021. The Respondent did not submit that these matters affected the Application.

Respondent’s grounds

69. The Respondent submitted that the issue of the firearms licence to the Applicant would be contrary to the public interest in light of the Applicant’s mental health. It was also submitted that the Applicant may not exercise continuous and responsible control over firearms because of the Applicant’s unsound mind. It was also submitted that the Applicant was not a fit and proper person, not because he poses a risk to other persons but because he poses a risk to himself as a member of the public.

Public interest

70. The phrase “public interest” is not defined in the Act. In O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

The concept does include 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] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, 681, the High Court said:

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

71. The issue of public interest allows for matters going beyond the 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, [33]. In the present context, and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety.

72. In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward), at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].

73. 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 that 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 Firearms Act and comments in cases should not be substituted for those tests" at [7].

74. Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, 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, [64] - [66]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "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".

75. The only basis relied upon by the Respondent to support this ground is the Applicant’s mental health. In light of the findings that I have previously made, I am satisfied that on the evidence before me that no real and appreciable risks have been established, and I find that there is virtually no risk in the Applicant possessing or using firearms. Accordingly, I am satisfied that the issue of the licence to the Applicant would not be contrary to the public interest.

Fit and proper person

76. Section 11(3)(a) of the Act provides that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) of the Act provides a licence must not be issued if there is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s intemperate habits or being of unsound mind.

77. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184.The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30]. In the context of the Firearms Act, fitness and propriety “must be considered in the context of at all times ensuring public safety”: Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22].

78. The Respondent did not suggest that the Applicant is not a fit and proper person because he poses a risk to other persons but instead submitted that the risk to public safety relates only to a risk to the Applicant himself as a member of the public: Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117 at [74].

79. The Respondent referred to the decision in Su v Commissioner of Police, NSW Police Force [2023] NSWCATAD 43 (Su). In that case, the applicant had been located by police sitting on the edge of a cliff at Jacobs Ladder behind a safety fence and ignored police when they approached. He then shuffled closer to the edge before being grabbed by police. The applicant in that matter attended one session with a psychologist who provided a report that “[the applicant’] reported that he has no mental health history and no criminal history” despite the applicant having a criminal history.

80. In affirming the decision, the Tribunal noted at [70]:

[The] report clearly states that the Applicant was experiencing positive mental health. However, as has been noted, that report is based on the Applicant’s self-reporting and its accuracy relies on the accuracy of the information that was given. The report appears to support the contention that the Applicant is no longer experiencing mental health issues. However, there must be some doubt in that regard as the report states that the Applicant “reported that he has no mental health history and no criminal history.”

81. The Respondent submitted that the Applicant in the current proceedings has similarly indicated that this disappearance had been blown out of proportion and that he has no history of mental health issues. It was submitted that this conclusion is difficult to reconcile with the Applicant’s conduct in 2018 and around the time of his child’s birth.

82. In my view the facts of the current matter are clearly distinguishable from those in Su. In Su, there was direct evidence by a police officer of the applicant’s actions on the cliff edge, including that the applicant was crying and told police that he was thinking of hurting himself and that is why he was on the cliff edge. The applicant was then taken to hospital and admitted under s 22 of the Mental Health Act 2007 and a copy of the Discharge Summary was in evidence in that matter. In the current matter, there is no direct evidence of any thoughts or intention by the Applicant to self-harm at any time and no evidence, direct or otherwise, that he ever attempted to do so. I have found that the Applicant did not have a history of mental health issues, that the report by the Applicant to Dr Sivaruban was accurate and I have accepted the findings made by Dr Sivaruban in his report.

83. In light of the findings that I have previously made, I am not satisfied on the evidence that the Applicant poses any risk to himself as a member of the public.

Orders

1. The decision under review is set aside.

2. The Respondent is to grant the Applicant a category AB firearms licence.

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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: 31 January 2024