Allsop v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2022-12-08

Introduction

This is an application by Mr Allan Allsop ("the Applicant") for review of a determination by a delegate of the Commissioner of Police ("the Respondent" or "the Commissioner") under the Firearms Act 1996 ("the Act"). The delegate decided to refuse the Applicant's application for a category AB firearms licence.
The Commissioner was not satisfied that the Applicant is a fit and proper person to hold a licence and be trusted to have possession of firearms without danger to public safety and was of the opinion that issuing the licence would be contrary to the public interest.
The Applicant has applied to the Tribunal for external review of the decision.

Background

The Applicant's licence history and other matters relating to his background are set out in his application for an internal review of the decision to refuse his licence application. The information provided indicates that the Applicant: 1. was a Justice of the Peace for approximately 50 years; 2. has possessed firearms for some 55 years, since he was 17 years of age; 3. has held numerous memberships and licences with firearms related clubs and associations, including: 1. Sporting Shooters Association of Australia (SSAA) since 1998; 2. Australian Deer Association (ADA) since 1999; 3. Buckmasters of Australia (until name change) for over 30 years; 4. NSW Department of Primary Industries Restricted Game Hunting Licence Extension since 2004; 5. Long standing relationship with NSW National Parks and Wildlife Service in eradication of wild deer and culling of kangaroos for over 20 years; 6. Previously held Victorian Game licence for management and hunting of wild deer until 2010; and 7. Relationships with many farmers and landowners in regional NSW with eradication of wild animals. 1. has been employed in Government positions across his working career, as follows: 1. NSW Railways for 10 years, reaching rank of senior acting driver; 2. Builders Licensing Board (Legal Branch) for 5 years, working as clerical assistant and Officer in Charge of the Board's Document Reproduction Centre; and 3. NSW Office of the Sherriff for 23 years, reaching the rank of Inspector. Significantly, working at the NSW Office of the Sherriff required him to exercise significant discretion and uphold public safety as a key tenet of that employment.

The issue for determination

The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner's decision and, specifically, whether the Applicant is a fit and proper person to have a firearms licence, and whether it is contrary to the public interest for the Applicant to hold a licence under the Act.
In the internal review decision, the Commissioner's delegate stated: I also hold concerns in relation to your mental health in the context of being authorised for firearms.
It is necessary to consider the question of whether there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of his health.

The Tribunal's Approach

The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material to either confirm the original decision, vary it, or set it aside and substitute another. The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decision Review Act 1997 ("the ADR Act").
The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the Commissioner's decision is correct.
These are not adversarial proceedings in which the Applicant carries an onus of proof. By making the application, the Applicant triggers a process of merits review by the Tribunal. He does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove her case. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities.
Under section 38(2) of the Civil and Administrative Tribunal Act 2013, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
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 paragraph [23].
The discretion must be exercised keeping in mind the activities which are authorised by a licence under the Act. Accordingly, the objects and purposes of the Act are relevant.

Applicable legislation

Section 9 of 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. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal's jurisdiction includes review of a decision by the Commissioner to refuse an application for a firearms licence.
This application is made under section 75 of the Act and the ADR Act.
The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.
The underlying principles of the Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides: (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.
The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter and the Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]: [W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...
Section 11(3)(a) of the Act prescribes that a firearms 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(7) of the Act provides that the Commissioner may refuse to issue a licence if she considers that issuing of the licence would be contrary to the public interest.
As noted, the Commissioner contends that the Applicant is not a fit and proper person to hold a firearms licence and that it is not in the public interest for him to do so. The expression "fit and proper person" has been considered in numerous decisions of this Tribunal.

Fit and proper person

The Act places an emphasis on the need for licensees to be fit and proper for the role. The Tribunal has considered the issue of whether an applicant is a fit and proper person to hold a licence under the Act on numerous occasions.
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 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 at paragraph [22].
The question of a person's fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' (at 156-7): "The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

Public interest

Section 11(7) of the Act provides: 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.
As noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated, in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range 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 "public interest" allows issues going beyond the character of the Applicant to be considered. These may include concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
"Public interest" embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation 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 decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
In considering the public interest, regard must be had to the underlying principle of the Act. The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. The Tribunal must give proper, genuine, and realistic consideration to each of the relevant matters. A decision maker should not shy away from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph [22].
The public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements.
As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at paragraphs [24] to [25]: 24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d). 25. In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. ...
In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP 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. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].
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 considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

Continuous and responsible control over firearms

The Respondent also contends that the Applicant may not personally exercise continuous and responsible control over firearms.
Section 11(4)(c) of the Act prescribes that the Commissioner must not issue a licence to a person if the Commissioner has 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.
The term "reasonable cause to believe" in this context was considered by the Tribunal in the matter of LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at paragraphs [41] - [43] where the Tribunal stated: 41 The term "reasonable cause to believe" has been considered by the courts in contexts other than those the subject of this application. For example, in the context of discovery under Order 15A, Rule 6 of the Federal Court Rules, in Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013, BC 200305547, Emmett J stated: "[10] There is no dispute as to the nature of the task that arises under r6(a). The words, 'where there is reasonable cause to believe that the application has or may have the right to obtain relief' are not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief. It is not necessary to demonstrate whether or not the applicant has the belief". 42 In New South Wales v Taylor (2001) 178 ALR 32, the High Court considered the term "no reasonable cause to believe" as it appears in s.151A(5) of the Workers Compensation Act 1987 (NSW). At [15] of the joint judgment of Gleeson CJ, McHugh and Hayne JJ, they stated: "It is true that the notion of 'reasonable cause', although often used in legal instruments, is an awkward expression. A cause is a cause is a cause. Beliefs about causes may be reasonable, but causes are neither reasonable not unreasonable. They are facts even if, as current legal doctrine insists, they often involve value judgments." 43 In my opinion, the abovementioned principle in Taylor and test enunciated by Emmett J in Austrac equally applies in that the Tribunal, as was the Commissioner, must objectively be satisfied, from established facts of the matters set out in paragraph 24(2)(a) of the Act. These matters are that LY's domestic circumstances are such that she may not personally exercise continuous and responsible control over her firearm.
In my view, to have "reasonable cause to believe" there must be more than mere suspicion or conjecture.
The term "unsound mind" is not defined in the Act. Deputy President Hennessy considered the expression in Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 185. She stated at paragraphs [25] - [27]: 25 The first question is whether Mr Sweet post traumatic stress disorder amounts to "unsound mind" given the purpose of the legislation. Mr Sweet has a recognised mental condition which can be regarded as a mental disorder. It is not trivial in its nature. 26 One of the principles of the Act, as set out in s 3(1)(a), is to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety. 27 The term "unsound mind" must be interpreted in the context of this principle. To be of "unsound mind" a person's mental condition must at least have the potential to put public safety at risk if that person has the possession or use of a firearm. ...

Material before the Tribunal

The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act. This material includes a number of records held in the Respondent's electronic database ("COPs"). The Respondent's solicitors provided a chronology of events which involved the Applicant. The chronology is supported by material contained within the material filed pursuant to section 58 of the ADR Act. The Respondent's solicitors also provided written and oral submissions.
The Applicant relies on his own evidence and submission, references from long term acquaintances and a number of medical certificates. The Applicant attended the hearing, gave evidence and was cross-examined.

The Respondent's Case

As noted, the Respondent submits that the correct and preferable decision is to refuse to grant the licence that the Applicant is seeking. The Respondent bases her position on the grounds that the Applicant is a not a fit and proper person to have a firearms licence, and that it is contrary to the public interest for him to do so. The Respondent points to several issues in support of her position.

The Respondent's chronology of events

The Respondent has provided the following chronology of events that are reflect in the records that have been filed in this matter. Date Event 29 July 1993 Shooter license issued to the Applicant 15 October 1998 Category AB firearms licence first issued (5-year term), and Shooter licence cancelled. 12 April 2002 Applicant issued caution for disobeying traffic lights - camera detected (9980065157). 18 December 2003 Category AB firearms licence re-issued (5-year term). 4 August 2008 Applicant issued $81 fine for exceeding speed limit by not more than 15km/h whilst driving a motor vehicle (camera detected) (6023694692252). 6 November 2008 Category AB firearms licence re-issued (2-year term). 26 October 2010 Category AB firearms licence re-issued (5-year term). April 2014 Applicant being treated for depression including through a prescription for fluoxetine. 24 September 2015 Category AB firearms licence re-issued (5-year term). 6 April 2017 Applicant involved in physical altercation with his son at workshop owned by the son. Provisional Apprehended Violence Order (PAVO) obtained next day for the protection of the Applicant. Varied on 12 April 2017 to a full AVO (see COPS Event Ref No. E 64445461). 22 July 2019 Applicant involved in civil disturbance with neighbour regarding placement of wheelie bin. Parties advised by police to avoid speaking to each other and leave garbage bins outside own premises. 30 July 2019 Applicant attended Riverstone Police Station to discuss incident on 22 July 2019. Applicant makes allegations about his neighbour. 20 September 2019 Police visit Applicant. Applicant says he was assaulted by neighbours Roseanna Sultana and intimidated by Frank Sultana. 28 August 2019 Interim AVO (lAVO) issued against the Applicant's neighbour, Frank Sultana, in relation to incident involving neighbour. Applicant and his neighbour subsequently participate in mediation. lAVO withdrawn on 8 September 2020. 2 December 2019 Applicant's neighbour contacts police regarding placement of Applicant's wheelie bin (in front of the neighbour's vehicle, parked outside his premises). Applicant refuses to move wheelie bin. Police attend but take no further action. Roads and Traffic Authority records note that the Applicant suffers from: Neurological - Blackouts; 15 October 2020 Neurological - Parkinson's Disease; Mental Health - Anxiety; and Mental Health - Chronic Depression. Note: As at 22 July 2022, there were no conditions on the Applicant's driver licence 27 October 2020 Applicant involved in verbal altercation with neighbour (Kelly) regarding discharge of chemicals (liquid fertiliser) into neighbour's backyard. Neighbour hosed Applicant with garden hose in response. Police attended. Applicant advised to not let liquid fertiliser overflow. Neighbour advised about possible Provisional AVO against the Applicant. 2 November 2020 Category AB firearms licence re-application submitted. Applicant involved in verbal altercation with wife outside his residence in relation to transfer of manure/dynamic lifter mixture into neighbour's yard. Escalated into physical altercation, where he splashed a large amount of the mixture over wife. 27 November 2020 While in custody. Applicant had a medical episode and was transported to hospital by ambulance staff. Applicant charged with (1) assault occasioning actual bodily harm (DV)-T2 and (2) common assault (DV)-T2 (H 76675922). 27 November 2020 Category AB firearms licence suspended. 27 November 2020 PAVO issued against the Applicant (First PAVO). In force until 24 May 2021. 5 December 2020 PAVO compliance check. The Applicant's wife reported there had been no further assaults or intimidations. 17 January 2021 Applicant issued caution for exceeding speed limit by not more than 10km/h whilst driving a motor vehicle (camera detected) (6096910261049). 29 January 2021 Applicant involved in verbal altercation with neighbour. Parties told to stay away from each other and contact council to resolve ongoing differences. Applicant involved in verbal altercation with wife about his actions towards the neighbours, which involved playing music loudly from inside his vehicle (battery became flat as a result), beeping his vehicle horn, flashing his vehicle lights, and hitting the fence with a metal object. Wife called police to report that the Applicant was standing over her and intimidating her. 31 January 2021 Police attended, but the Applicant's wife would not supply a statement due to the health conditions of the Applicant. Note, mental health and other health issues recorded in COPS Event Report, which states (at p71): "Police are at the belief the P/N [the Applicant] needs a mental health assessment or to see his doctor to seek advice on Ms Issues with his erratic behaviour." 3 February 2021 Applicant used a tablet to film his neighbour, Mr Kelly, getting into his car and leaving for work with tablet. No charges pressed. 10 April 2021 Applicant called police in the belief that his ex-partner had broken in and stolen property from his home. No break-in or offences detected. Police reported that the Applicant "appears to be trying to find and make a claim against the victim for whatever means he can find'. COPS Event Report states: "The PN is suffering from on setting dementia, heart issues, pulmonary fibrosis and on set Parkinson's disease. Over the past year the PN has become argumentative and will not listen to any one or take any advice. Due to these reasons, the victim and the PN have separated as the PN has found it unbearable to live with the victim and his erratic behaviour." Applicant involved in dispute at his residence, where Applicant hit neighbour with his vehicle, became aggressive and irate towards the neighbour and made threats (H 81256578). 11 April 2021 Applicant charged on 14 April 2021 with the following in relation to 11 April 2021 incident: drive recklessly/furiously or speed/manner dangerous - 1st off; and stalk/intimidate intend fear physical etc. harm (Personal)-T2. Charges dismissed, not guilty after hearing on 30 August 2022. 12 April 2021 PAVO issued against the Applicant, for the protection of Mr Kelly (Second PAVO). In place until 30 August 2022. 17 April 2021 Mr Kelly observed the Applicant measuring Mr Kelly's lawn. Mr Kelly believed that the Applicant subsequently began filming him on an iPad. Police were called and arrested the Applicant. No further action taken. 24 May 2021 Charges arising from 27 November 2020 incidents ((H 76675922) are withdrawn or dismissed before the Blacktown Local Court. Applicant and Mr Kelly involved in a dispute after the Applicant placed a tarpaulin on their shared fence, and Mr Kelly placed it back on the Applicant's property. 28 May 2021 Applicant verbally abused Mr Kelly. Applicant attempted to punch face of neighbour and swipe neighbour with open hand. Applicant arrested and cautioned in relation to breaching the personal violence order. After being arrested, the applicant mentioned to police that he was not in good health and was not feeling well. Told police he was experiencing left sided chest pain and explained that he suffered multiple medical conditions (including heart condition and chronic lung condition). Applicant charged with offence of contravene prohibition/ restriction in AVO (personal) (H 473911292). 24 July 2021 Applicant erected CCTV camera on own cloth awning, near boundary of property adjoining neighbour. Ms Kelly reported to police. Police arrived and requested the applicant to move his camera. 30 July 2021 Applicant issued with infringement notice for not adhering to COVID lock down restrictions. TIN number 493624757. Notice of Revocation of Category AB Firearms Licence based on Applicant being: (a) charged with the following offences (H473911292 and H81256578): 7 September 2021 a. contravene prohibition/restriction in AVO (Personal); b. drive recklessly/furiously or speed/manner dangerous-1st off; and c. stalk/ intimidate intend fear physical etc harm (personal) - T2; (b) subject to a Provisional Apprehended Violence Order; and involved in numerous occasions in domestic violence related incidents 18 September 2021 Applicant stared at neighbour, Rhys Kelly, for two minutes, but did not say anything. Police attended. The Applicant said he was just "curious". No further action taken. 20 September 2021 Applicant placed tarpaulins on shared fence. Applicant believed that Mr Kelly had cut them down and called police. No offence detected and no damage caused. 30 September 2021 Applicant reported to police that he had received threatening telephone call from someone saying "I'm coming to get you. I'm going to fix you up!'. Police investigated the phone number and identified as a scam number. 1 October 2021 Police visited the Applicant in relation the threatening telephone calls he received. Police raise questions in relation to a garage sale after spotting a sign and compliance with COVID public health orders. Applicant said to police "Are you gonna take my complaint or keep going with your bullshit. 6 October 2021 Applicant's legal representative submits an Internal Review Request in relation to the refusal of a Category AB firearms licence. Applicant reversed his car into another car while attempting to reverse park outside his residence. Ms Kelly witnessed the incident went to speak to the owner of the damaged vehicle. The Applicant said to Ms Kelly "can you piss off' and subsequently: the Applicant walked towards Ms Kelly, pushing her backwards, using his chest to apply physical force, causing her to step back. Ms Kelly then called "000"; the Applicant returned to his residence and then, while Ms Kelly and Mr Kelly were waiting for police, yelled out "Hey, hey', pulled down his pants and exposed his buttocks; the Applicant then picked up his garden hose, said "ready, set, go' and hosed his Ms Kelly in the face, and also hosed Mr Kelly and Rhys Kelly. When police arrived, they cautioned and arrested the Applicant and entered escorted to the Applicant into his residence to retrieve essential belongings. Inside: police found (and seized) a prohibited article (being a home-made baton) which the Applicant said was for his 'protection'. 6 October 2021 the Applicant said words to police to the effect of "you know what, see those pens there, I could kill you with those'. When asked if that was a threat, the Applicant responded "did I make a threat? I said that I could kill you with them) stated that, in response to being frightened by threatening phone calls, he would be "arming himself to the teeth'. The Applicant was charged with, among other things: two counts of contravene prohibition or restriction in an apprehended violence order contrary to section 14(1) of the Crimes (Domestic and Persona! Violence) Act 2007(seq 1 and 7); stalk or intimidate intending to cause fear of physical or mental harm (personal violence offence) contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 {HS^) (seq 2); three counts of common assault contrary to section 61 of the Crimes Act 1900 (seq 4, 5 and 6); behave in offensive manner in/near/within view from/within hearing from a public place/school under section 4(1) of the Summary Offences Act 1988 (NSW) (seq 8) 9 October 2021 Mr Kelly called police after observing the Applicant to be standing on the road outside his house measuring Mr Kelly's grass. 17 October 2021 The Applicant's wife called police to report that the Applicant sole and antique cast iron clock, including key. Applicant returned both after police interference. Mr Kelly called police to report that the Applicant is yelling and manic from 7am until about midday, and leaning over the neighbour's fence with blow torch and attempting to burn fence down. A PAVO was in place at the time. Police attended and sighted fence. They noted no visible damage. COPS Event states: 23 October 2021 "Police made immediate observations of the POI's unwell state, noting scarring on his forehead, a pale appearance, sweating and confused state. Furthermore, the POI was rambling incoherently and was argumentative with police over his right to repair the perimeter fence despite not having permission from the VIC to alter it. Police advised applicant that if he wished to alter the perimeter fence, he must seek permission. At this point the applicant's health had deteriorated dramatically, he stated he was experiencing chest pains and indicated a desire to die." The applicant was rambling incoherently and seemed confused. The Applicant indicated a desire to die. Applicant was conveyed by ambulance to Blacktown hospital for treatment 24 October 2021 The Applicant was watering lawn with a mixture with a strong smell while his neighbours were having a BBQ. Mr Kelly swore at the Applicant, and the Applicant hosed Mr Kelly with water. 22 November 2021 One of the Applicant's treating practitioners contacted police requesting they conduct a welfare check after the Applicant referred to wanting to "end everything". 12 December 2021 Applicant issued $124 fine for exceeding speed limit by not more than 10km/h whilst driving a motor vehicle (camera detected) (9007191023110). 14 December 2021 The Applicant scooped up a mixture of wet grass clippings, paper, small sticks and debris from the gutter and placed on the edge of his neighbour's lawn. Mr Kelly returned the debris to the Applicant's front lawn. The Applicant then began filming Mr Kelly. Police attended and the Applicant was charged with contravening an AVO (H 85634962). 5 January 2022 The Applicant's wife called police to report that the Applicant and taken her mobile phone and refused to return. After police involvement, the Applicant returned it Police noted that: "Due to a combination of: Lack of victim statement, it is not in the public interest to take formal legal action against Allan ALLSOP considering his continued contact with police where he has exhibited deteriorating mental health and diminished intellectual capacity, he appears to have held a genuine legal claim of right to the property at the time of the incident before regaining lucidity, the POI and the Victim do not live together and the victim has moved out." 18 January 2022 The Applicant contacted police to report that his estranged wife was not leaving his premises. On police arrival, Ms Allsop was not present. 21 February 2022 Blacktown Local Court dismisses the Applicant's charge for contravention of an AVO from 28 May 2021. 14 July 2022 Charges 3 (manufacturer prohibited weapon) and 9 (possess or use prohibited weapon) from 6 October 2021 are withdrawn (H 82752820). 8 August 2022 Internal Review completed affirming decision to refuse Category AB firearms licence re-application. 12 August 2022 NCAT Application Blacktown Local Court determines the following: Applicant convicted and fined of charges 4 and 5 (both common assault) relating to 6 October 2021; Applicant convicted of charges 6 (common assault), 30 August 2022 7 (contravene AVO) and 8 (behave in offensive manner) relating to 6 October 2021; Charge 2 (stalk/intimidate) from 6 October 2021 dismissed, not guilty after hearing (H 82752820); Charges 1 (drive recklessly/furiously in manner dangerous) and 2 (stalk / intimidate) from 14 April 2021 dismissed, (H 81256578); Charge 1 (contravene AVO) relating to incident on 15 December 2021 is dismissed (H 85634962).

The Respondent submits that in light of these events, the Tribunal cannot be satisfied that the Applicant is a fit and proper person to hold a licence and be trusted to have possession of firearms without danger to public safety to hold a licence. It is submitted that there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms having regard to the significant number of incidents that have brought the Applicant to the attention of police.
The Respondent submits that the long history of disputes with his neighbours raises questions in regard to whether the Applicant is of unsound mind.
The Respondent also points to the Applicant's criminal history which relates to domestic disputes with his former wife and his neighbours.
In addition, the Applicant's was caught speeding twice in 2021. Although his driving record is otherwise unremarkable, his Licence Details disclose that he has a number of recently identified health conditions including musculoskeletal disorder; cardiovascular issue; neurological issues, specifically, blackouts; Parkinson's Disease; and anxiety.

Applicant's Mental Health

The Respondent points to the Applicant's history of psychological and physical health issues including a history of depression going back at least 8 years. The Applicant did not disclose his treatment in his applications for a firearms licence in 2015 and 2020.
The Respondent notes that the Applicant's material suggests that he may have been being treated for depression since at least 2014. In his August 2015 application he answered "No" to the question "Have you in NSW or elsewhere... in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness''. In November 2020 he again answered "No" to the same question.
The Respondent submits that if the Applicant knowingly provided false or misleading information in a firearms licence application, that may amount to an offence against section 70 of the Act and be another ground to refuse the Applicant's application.
In early May 2021, the Applicant was assessed by Dr Urvasi Doolabh, who prepared a report which stated: 1. in April 2021, he was brought to hospital under section 22 of the Mental Health Act 2007 (NSW), where he was diagnosed with possible adjustment disorder, with depressed mood, in the context of ongoing conflicts with neighbours and family; 2. Electronic medical records indicated that he was on psychotropic medications in April 2014, with a history of Depression; 3. in December 2020, he underwent neuropsychiatric testing that showed the presence of subtle changes involving largely fronto-subcortical brain regions and were consistent with the present of vascular related brain changes on recent CT Brain. His cognitive profile was consistent with Mild Cognitive Impairment due to Executive Dysfunction. The presence of depressive symptoms appeared to be impacting on his current level of cognitive functioning; 4. in December 2020, he was admitted to Blacktown Hospital and his daughter requested psychiatric review as the family were concerned about his mental health and cognition with a reported decline in mental state over the last 12-18 months. They stated that he was physically aggressive towards his wife at home and punching walls They did not want him to return home as his wife was fearful of her safety; 5. in December 2020, the Applicant was assessed by the "Psychogeriatric CL Service" for "possible depression" where he was irritable and argumentative and did not engage in the assessment. Collateral history from his wife indicated a progressive decline in his mental state with personality, mood, and behaviour changes. His wife reported that he was more argumentative, and verbally and physically aggressive towards her. He had punched the walls when she didn't do what he said, and drove erratically in the car when they argued; 6. Diagnostically there was no evidence of a major mental illness with no pervasive mood, psychotic or cognitive symptoms. He had possible Adjustment Disorder with depressed mood in the context of Covid-19 pandemic lockdown, ongoing conflicts with neighbour and wife, and recent significant financial loss. He had mild cognitive impairment but no neurocognitive disorder; 7. On mental state examination, he looked depressed with a restricted range of affect; and 8. he likely has a Major Depression in the context of a number of psychosocial stressors. He also has Mild Cognitive Impairment with Executive Dysfunction.
In late May 2021, the Applicant was assessed by Dr Ahlam Yehia, who prepared a report which noted: 1. There were reports that the Applicant suffered from PTSD after working for many years in the Sheriff's Office and being exposed to information/images of crime. There was no formal diagnosis of Major Depression in the past; 2. The Applicant reported low mood and his affect was flat; 3. The Applicant agreed that he needed to recommence Mirtazapine to stabilize his mood; 4. the Applicant presented with frustration and difficulty coping with his social, financial, and household responsibilities. His mood continued to be low.
In August 2021, the Applicant was again assessed by Dr Doolabh, who prepared a report which noted: 1. since the review in May 2021 the Applicant had started on Mirtazapine 15mg nocte. He took it for a few days but then became non-compliant as he felt it was too sedating and he was unable to complete his daily tasks; 2. the Applicant subsequently agreed to be compliant but did not adhere to this. He remained difficult to engage in initiating antidepressant treatment; 3. the Applicant reported that he was doing better but his mood was up and down.
In the Respondent's submission, the Applicant's conduct illustrates that he has: 1. a propensity to engage in intemperate, violent, aggressive and antisocial behaviour in public; 2. an irresponsible attitude towards and disregard for laws that are designed to protect public safety; and 3. a tendency to act with irrationality, volatility and aggression in public, and with disregard for public safety.
Further, the Applicant's repeated legal transgressions in the community mean that the Tribunal cannot be confident that the Applicant's possession of firearms will not create a danger to public safety, or that the Applicant will comply with the legislative responsibilities and conditions of a firearms licence. This is particularly the case given that the Applicant is suffering from deteriorating physical and mental health.
The Respondent accepts that the Applicant has relocated and no longer has contact with his former neighbour. However, it is submitted that the Applicant's intemperate habits are not resolved, and that there is evidence of behaviour that suggests that the Applicant could demonstrate poor judgment. There is cause for concern that his past behaviour indicates that he poses a risk to public safety. Prior behaviour is indicative of future conduct, and it cannot be guaranteed that the Applicant will not engage in similar conduct in the future.
The Respondent notes that the Applicant's medical evidence discloses a number of psychological health issues and a tendency to be non- compliant with prescriptions to address those issues.
The Respondent accepts that not all of the charges against the Applicant were proven beyond reasonable doubt. However, the Respondent submits that the Tribunal ought to be satisfied that the relevant conduct occurred.
If the Tribunal is satisfied that the underlying conduct occurred, the Tribunal cannot be satisfied that there is virtually no risk to public safety if the Applicant is to be granted a firearms licence, and that his conduct is inconsistent with the grant of the privilege to possess and use firearms.
In the Respondent's submission, the correct and preferable decision is that the Applicant's application for a firearms licence be refused. Therefore, the decision should be affirmed.

The Applicant's Case

There can be no doubt that the Applicant has had a long unblemished career in a number of fields, including that of a Sheriff's officer, and that he has been a Justice of the Peace for many years.
As noted, the Respondent has set out a chronology of incidents in which the Applicant has been involved. The Applicant has provided a significant amount of material in response to the Respondent's records and has answered each of the allegations. He also provided a number of personal references which speak highly of him.
The Applicant's position is essentially that he has been the victim of the behaviour of others. There was ongoing conflicts with his former neighbours which he blamed on the neighbours. Similarly, he accepts that prior to the separation from his former wife there were several incidents of domestic disputes. He does not accept responsibility for the alleged conduct. His evidence was that he was the victim of harassment and victimisation.
The Applicant has correctly identified the fact that most of the charges brought against him were dismissed. He accepts that he was convicted of some charges but stated that he did not bring those to the Respondent's attention because he had forgotten about them.
The Applicant's evidence was that he is divorced from his former wife and that the family home has been sold. He has purchased a caravan and intends to travel around the country and move to Queensland as soon as possible. He proposes to assist farmers in dealing with feral animals and seeks a firearms licence to allow him to do that. He also wishes to have firearms for sport and to follow his hobby.
He accepts that he didn't provide accurate information in his firearms applications but said that he was not trying to hide anything. He had made a mistake.
He provided a number of medical reports and he does not accept that he has mental health issues. The reports identify a number of issues but generally support his position.
The most recent of the reports by Dr Urvasi Doolabh is dated 4 August 2021. Doctor Doolabh concluded: I do not plan to review Mr Allsop again as he is well. He will be discharged from our care once social supports are in place. He can always be re-referred to our service in the future if there are concerns about his mental state.
The Applicant submits that there is no reason why he should not be permitted to have firearms and that the application should be granted.

Discussion

This is a matter in which there is a long history of ongoing conflicts between the Applicant and various other individuals. There has clearly been disputes between him and his former neighbours which appear to have escalated into feuds. There is also a history of domestic disputes between the Applicant and his former wife.
The history is set out in the chronology provided by the Respondent. The Respondent contends that the Applicant is suffering from deteriorating physical and mental health.
As noted, the Applicant has provided psychological reports to address concerns in regard to his mental health. The most recent of those reports is dated August 2021. As is apparent from the chronology, the incidents between the Applicant and his former neighbours, and between the Applicant and his former wife continued long after August 2021.
I note that the August 2021 report from Doctor Doolabh concluded that the Applicant is well. However, Doctor Doolabh also concluded: He will need to remain on antidepressant treatment in the long term. Psycho-education was provided about the medication and its side effects. ... Given that he continues to report possible parkinsonian symptoms such as tremor in his left hand, he should be referred back to his neurologist for further assessment and follow up to confirm his diagnosis of Parkinson's disease.
The medical evidence that I have been given does not indicate whether or not "parkinsonian symptoms such as tremor in his left hand" would affect the Applicant's ability to use firearms safely.
Further, medical evidence does suggest that the Applicant has been non-compliant in regard to antidepressant treatment. There is no evidence to indicate whether or not the Applicant's condition would affect his ability to use firearms safely.
Given the Applicant's long unblemished employment record, it is difficult to explain the events that have occurred in recent years. The Respondent has suggested that the explanation might lie in a deterioration in his mental health. The existing medical evidence does not agree with that suggestion. However, that evidence is not current.
The Respondent is rightly concerned that the Applicant's past behaviour might be indicative of future conduct.
There is a need for evidence to establish whether or not any of the Applicant's conditions have the potential to put public safety at risk if he has the possession or use of a firearm.
In my view, given the long history of altercations in which the Applicant has been involved and the lack of recent medical evidence, there is a need for further medical evidence in relation to the Applicant's mental and physical health before I could be satisfied that there is virtually no risk to the public if the Applicant is given access to firearms.
In the circumstances, on the material that is before me, I agree with the Respondent's submission that the correct and preferable decision is that the Applicant's application for a firearms licence should be refused. Therefore, the decision should be affirmed.
It is a matter for the Applicant whether or not he obtains additional medical evidence. If he does obtain it and reapplies for a licence, and is able to satisfy the Respondent that there is virtually no risk to the public if he is given access to firearms, he may achieve a different outcome.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2023

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Judgment (16 paragraphs)

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Cases Cited (11)