Armstrong v Commissioner of Police, NSW Police Force

The issue for determination

1. The issue for determination is whether the decision to refuse the Applicant's application for renewal of his firearms licence and his application for a permit to acquire a longarm is the correct and preferable one. This will require the Tribunal to consider whether or not: 1. the Applicant is a fit and proper person to hold a licence and permit; and 2. it is contrary to the public interest for the Applicant to hold a licence and permit.

Applicable legislation

1. Section 11 of the Act provides: 11 General Restrictions on Issue of Licences (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. ... (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 ... (5) A licence must not be issued to a person who: … (d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations, or ... (5A) A licence must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that: (a) the person is a risk to public safety, and (b) the issuing of the licence would be contrary to the public interest.
2. Section 24 of the Act provides: 24 Revocation of licence ... (2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or … (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or … (d) for any other reason prescribed by the regulations.
3. Section 29 of the Act provides: 29 GENERAL RESTRICTIONS ON ISSUE OF PERMITS (1) A permit 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. ... (3A) A permit must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that: (a) the person is a risk to public safety, and (b) the issuing of the permit would be contrary to the public interest.
4. Section 70 of the Act provides: A person must not, in or in connection with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular.
5. Section 75 of the Act provides: 75 ADMINISTRATIVE REVIEWS BY CIVIL AND ADMINISTRATIVE TRIBUNAL OF CERTAIN DECISIONS (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions: (a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person, … (5) In determining an application for an administrative review of any such decision, the Civil and Administrative Tribunal (and any Appeal Panel of the Tribunal in determining any internal appeal against such a review under the Civil and Administrative Tribunal Act 2013): (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other information referred to in section 11 (5A) or 29 (3A), and (b) in order to prevent the disclosure of any such report or other information, is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review and the applicant's representative.
6. Clause 5 of the Firearms Regulation 2017 ("the Regulation") provides 5 Offences that disqualify applicants (1) For the purposes of sections 11(5)(b) and 29(3)(b) of the Act, the following offences are prescribed: …. (b) Offences relating to prohibited drugs etc An offence in respect of a prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 or a prescribed restricted substance within the meaning of the Poisons and Therapeutic Goods Regulation 2008, being an offence in respect of which the penalty imposed included any term of imprisonment (whether or not suspended), a community service order, a good behaviour bond or a penalty of $2,200 or more, and committed under: (i) the law of any Australian jurisdiction, or (ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction). … (2) Persons subject to good behaviour bonds For the purposes of sections 11(5)(d) and 29(3)(d) of the Act, the following offences are prescribed: (a) … (b) an offence in respect of a prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or a prescribed restricted substance within the meaning of the Poisons and Therapeutic Goods Regulation 2008, committed under: (i) the law of any Australian jurisdiction, or (ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction),
7. Clause 20 of the Regulation provides: 20 Revocation of licence - licence not in the public interest The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
8. Section 32 of the Mental Health (Forensic Provisions) Act 1990 provides: 32 Persons suffering from mental illness or condition or cognitive impairment (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate: (a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate): (i) cognitively impaired, or (ii) suffering from mental illness, or (iii) suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, and (b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3). (2) The Magistrate may do any one or more of the following: (a) adjourn the proceedings, (b) grant the defendant bail in accordance with the Bail Act 2013, (c) make any other order that the Magistrate considers appropriate. (3) The Magistrate may make an order dismissing the charge and discharge the defendant: (a) into the care of a responsible person, unconditionally or subject to conditions, or (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate: (i) for assessment or treatment (or both) of the defendant's mental condition or cognitive impairment, or (ii) to enable the provision of support in relation to the defendant's cognitive impairment, or (c) unconditionally. (3A) If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate. (3B) If the defendant fails to appear, the Magistrate may: (a) issue a warrant for the defendant's arrest, or (b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant's arrest. (3C) If, however, at the time the Magistrate proposes to call on a defendant referred to in subsection (3A) to appear before the Magistrate, the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately: (a) issue a warrant for the defendant's arrest, or (b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant's arrest. (3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged. (4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise. (4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with under subsection (2) or (3). (4B) A failure to comply with subsection (4A) does not invalidate any decision of a Magistrate under this section. (5) The regulations may prescribe the form of an order under this section. (6) In this section: cognitive impairment means ongoing impairment of a person's comprehension, reasoning, adaptive functioning, judgment, learning or memory that materially affects the person's ability to function in daily life and is the result of damage to, or dysfunction, developmental delay or deterioration of, the person's brain or mind, and includes (without limitation) any of the following: (a) intellectual disability, (b) borderline intellectual functioning, (c) dementia, (d) acquired brain injury, (e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder, (f) autism spectrum disorder.

Role of the Tribunal

1. Section 9 of the Administrative Decisions Review Act 1997 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. In this matter, the Tribunal's jurisdiction is conferred under section 75(1)(c) of the Act.
2. The Tribunal's role is to decide whether, having regard to the underlying facts in the matter and the applicable law, the decision is the correct and preferable one: section 63 of the Administrative Decisions Review Act 1997.
3. Neither party bears an onus of proof. The hearing is a hearing "de novo" - meaning that the Tribunal may consider the matter from the start including taking into account fresh evidence brought before it. The Tribunal is not restricted to the consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
4. The Tribunal must make its own decision. There is no presumption that the decision under review is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354.
5. Section 38 of the Civil and Administrative Tribunal Act 2013 provides: 38 PROCEDURE OF TRIBUNAL GENERALLY (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) 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. (3) Despite subsection (2): (a) the Tribunal must observe the rules of evidence in: (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. ...
6. A certificate under section 128 of the Evidence Act 1995 has been granted to the Applicant in respect of his answers to questions posed in cross-examination or arising in re-examination. Section 128 of the Evidence Act provides: 128 Privilege in respect of self-incrimination in other proceedings (1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country, or (b) is liable to a civil penalty. (2) The court must determine whether or not there are reasonable grounds for the objection. (3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness: (a) that the witness need not give the evidence unless required by the court to do so under subsection (4), and (b) that the court will give a certificate under this section if: (i) the witness willingly gives the evidence without being required to do so under subsection (4), or (ii) the witness gives the evidence after being required to do so under subsection (4), and (c) of the effect of such a certificate. (4) The court may require the witness to give the evidence if the court is satisfied that: (a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and (b) the interests of justice require that the witness give the evidence. (5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence. (6) The court is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled, and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. (7) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence: (a) evidence given by a person in respect of which a certificate under this section has been given, and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. ….

Good Behaviour Bond

1. The Commissioner notes that the Court Order specifically required the Applicant "To be of good behaviour." If he failed to comply with the treatment plan he could be called to appear before the court and the charge dealt with as if he had not been discharged. No time limit is placed on the Court Order.
2. Mr Grey, solicitor for the Commissioner, submits that the term "good behaviour bond" as used in section 11(5)(d) of the Act, is not defined by the Act. He contends that the Court Order is in the nature of a good behaviour bond. He submits the Applicant was placed on a good behaviour bond that has not expired and accordingly, pursuant to section 11(5)(d) of the Act, a licence must not be issued to him.
3. The Applicant does not accept that he is subject to a good behaviour bond.
4. I agree that the Applicant cannot hold a firearms licence if he is subject to a good behaviour bond. However, in my view the Court Order that Magistrate Railton made is not a good behaviour bond.
5. I agree that the Court Order is in the nature of a good behaviour bond. However, it is common ground that the Applicant was dealt with pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990. He was not dealt with according to law. Further, the Court Order is not expressed to be for a specified period of time. If Magistrate Railton had intended the Court Order to be a "good behaviour bond" he could have dealt with the Applicant according to law, expressed the Court Order to be a bond and he could have set the bond for a specified period of time. He did not do any of these things. In my view it is unlikely that he would have intended that the Applicant be subject to an indefinite good behaviour bond. In any event, section 32(3A) of the Mental Health (Forensic Provisions) Act limits the period in which action could be taken for non-compliance with the conditions of the order to "within 6 months of the order being made". If I am wrong in my view that the Court Order is not a good behaviour bond, the length of the bond period is limited to six months. That period has now passed and therefore it is no longer open to the Court to call on the Applicant to appear before it. In my view the Applicant is not subject to a good behaviour bond that would prevent him from obtaining a firearms licence.
6. In my view there is no basis on which the application must be refused mandatorily. However, it could be refused on the basis that the Applicant is not a fit and proper person to hold a licence or permit under the Act or that it is not in the public interest for the licence or permit to be granted.

Fit and proper person

1. One of the issues for determination is whether the Applicant is a fit and proper person to hold a licence or permit under the Act. A person's fitness and propriety are 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 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.
2. 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.
3. 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.
4. 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' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. 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 ... 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."

The Public Interest

1. 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."
2. '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) 1 VR 63. The purpose of a reference in legislation to 'the 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.
3. In Kocic v Commissioner of Police NSW Police Force [2014] NSWCA 368, where the issue was whether the Tribunal was entitled to take into account spent convictions in circumstances where the primary decision maker was expressly prohibited from doing so, Basten JA held at paragraph [41] that no "bright line" can be drawn between the factors relevant to the public interest consideration in section 11(7) of the Act and those addressed under other subsections, including the "fit and proper" criterion in section 11(3)(a). There may be characteristics of the applicant which might not lead to refusal under those other provisions, but which would nevertheless permit refusal under section 11(7), an example being where some weight might be given to spent firearm convictions including with respect to the credibility of the applicant. Leeming JA held (at paragraph [92]) that forming a view that the issue of a licence is "contrary to the public interest" is a very different concept to character or fitness under section 11(7). White J held: 106. …The matters that can be taken into account in making an assessment of the public interest pursuant to s 11(7) are not limited to matters not otherwise dealt with by s 11(3). Such considerations may include an applicant's fitness or character if that is relevant to an assessment of the public interest (as it would usually be), notwithstanding that an applicant's fitness or character is a separate matter to be considered under s 11(3)(a) and notwithstanding that in applying s 11(3)(a) the Commissioner cannot have regard to the spent convictions or the conduct underlying them.
4. 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. The underlying principles of the Act include confirmation that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety.
5. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph [28], Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk". 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".

The Evidence

1. The Respondent relies on the material that was taken into account in determining to refuse to grant the licence or permit. It also relies on the material that was before the court in the criminal proceedings, including the statement of agreed facts and a bundle of medical records and other material that was produced under summons. Mr Grey provided both written and oral submissions. The Respondent also provided material on a confidential basis.
2. The Applicant relies on his own evidence and that of his partner, Ms Carolynne Parbery. Reports and correspondence from Dr Alexander Murray are in evidence and Dr Murray appeared at the hearing and was cross-examined. The Applicant also relies on character references from Ms Pauline White and Ms Angela Besant. The Applicant's solicitor, Mr Churches, provided written and oral submissions.

The Applicant's evidence

1. The Applicant resides on a rural property of 25 acres. The property has been used for various rural activities and he has used a firearm for the purpose of controlling vermin such as foxes, rabbits and rats.
2. He believes he is a fit and proper person to hold a licence to possess and use firearms.
3. The Applicant's evidence is that he commencing shooting at the Stockton Rifle Range in about 1962 and he has been using firearms since then. From 1967 to 1969 he used firearms as a member of the Australian Armed Force. He has been licensed to possess and use firearms since 2007. In that time he never had any adverse assessment under the Act until this current matter.
4. He joined a rifle club in 1983 for the purpose of target shooting and continued with that sport until his licence was suspended in 2018. Until his licence was suspended he attended the Cessnock Range on most weekends to continue target shooting. He has successfully participated in State Championships for target shooting in NSW, Victoria, ACT and Queensland. He wants to be able to return to this sport.
5. The Applicant says that he has suffered from PTSD for many years. He was prescribed escitalopram for the condition and stated that it does not and has never affected his ability to possess and use a firearm. He relies on Dr Murray's report of 4 February 2018 to support the assertion that this medication does not adversely affect his capacity to possess and use a firearm. In any event the Applicant said that he ceased using that medication at least 10 years ago with no adverse effects upon him. He is not taking any medication for this PTSD. He also noted Dr Murray's opinion that his PTSD does not impair his capacity to use a firearm.
6. He stated that he sought treatment for his medical conditions and for his use of cannabis and that he has not used cannabis since March 2016. He relies on Dr Murray's report dated 24 December 2018 as providing adequate proof that he has remained abstinent from Cannabis and that he has made a genuine and enduring resolution to abstain permanently.
7. He denies that there is any risk to public safety if he is granted a firearms licence or permit or that there is any other public interest basis to refuse the application.
8. In regard to the answers that he provided in his licence applications, the Applicant stated that he believed that his answers were correct. In regard to the licence application dated 28 December 2007, section H of the Application form contains the following question: Have you in NSW or elsewhere: … (d) attempted suicide or self harm or been referred or treated for alcoholism, drug dependence or a mental or nervous disorder or illness.
9. The Applicant marked the "NO" box.
10. In regard to the licence application dated 3 November 2012, section F of the Application form contains the following question: Have you in NSW or elsewhere: (d) Have you ever attempted suicide or self harm, or in the past 12 months been referred or treated for alcoholism, drug dependence or a mental or nervous disorder or illness.
11. The Applicant marked the "NO" box.
12. In regard to the licence application dated 4 January 2018, section F of the Application form contains the following question: Have you in NSW or elsewhere: (d) Have you ever attempted suicide or self harm, or in the past 12 months been referred or treated for alcoholism, drug dependence or a mental or nervous disorder or illness.
13. The Applicant marked the "NO" box.
14. In each application he declared that he understood that it is a serious offence to make a statement or provide information that he knew to be false or misleading.
15. The Applicant does not dispute that he had been receiving treatment since 1993. In June 1993, Dr Lambeth described the Applicant as suffering from a severe degree of anxiety and depression. Since September 2007 he has been treated by Dr Murray who confirmed he was suffering from PTSD.
16. He stated that on some occasions he consulted Dr Murray for issues that were unrelated to his mental health for example to obtain advice in dealing with his elderly parents. He stated that he saw Dr Murray whenever he was told to do so. He understood that it was just for a chat. He did not think that there was anything wrong with him and he did not regard it as being "treated".
17. Under cross-examination the Applicant stated that his PTSD first appeared in about 1969 but it has varied. He still experiences it now and then and goes into a reclusive state when he does. He has consulted a number of doctors over the years. These included doctors who assisted him in obtaining a disability pension.
18. He conceded that he had ceased using medication which had been prescribed for him. His evidence is that he ceased taking that medication because it had side effects that affected him badly.
19. He used cannabis as a form of self-medication. He started using it after Vietnam but didn't start cultivating it until about 1976. He didn't have the money to buy it. In 1986 he pleaded guilty to a charge of cultivating a single plant. After that incident he did not cultivate cannabis again until about 2000. The cannabis that he grew was mostly for his personal use. However, he said that on at least two occasions he had smoked together with friends and on those occasions he gave the friends some of the cannabis that he had cultivated.
20. He agreed that when he first saw Dr Murray he told him that he used cannabis occasionally. He said that he used cannabis when he could not sleep. Whenever he felt under pressure and he found cannabis effective in dealing with his problems. He agreed to the treatment plan that Dr Murray proposed to the court in 2017. After his court appearance he consulted with Dr Murray. He does not like taking the medication that he had been prescribed in the past but indicated that if he thought he needed other medication he would consult Dr Murray about it.
21. He agreed that he had not followed the treatment plan because of an overseas trip. The trip had been booked before the Local Court appearance. He also undertook drug testing and there was a gap between consultations with Dr Murray that was necessary to facilitate that testing regime.
22. The Applicant accepted that the use of the expression 'treatment' in the licence application forms was not limited to consultations for the purpose of prescribing medication. He also accepted that some of the consultations that he had with Dr Murray and other doctors would fall within the scope of the questions on the licence application forms. He said that when completing the licence application forms he had focused on the word "suicide' in the question and had overlooked the remainder of the questions. He therefore accepted that he had not completed the forms accurately. However, he said that at the time he felt that he had answered truthfully and that he had not been trying to hide anything. He did not knowingly give false answers.
23. The Applicant agreed to the issue of the licence or permit on the conditions that he continues regular consultation with his psychiatrist and that he undertake regular drug testing.

Dr Alexander Murray

1. As noted above, reports and correspondence from Dr Murray are in evidence and Dr Murray appeared at the hearing and was cross-examined.
2. Dr Murray stated that he first prescribed medication for the Applicant in September 2007. He has not prescribed it since then. He was aware that the Applicant's treatment plan required that the Applicant consult with him and "arranging an alternative prescription medication In place of his marijuana use". However, he said that he did not prescribe any such medication.
3. Dr Murray agreed that he was also aware that the treatment plan required that the Applicant consult with him monthly or more regularly. He accepted that this part of the plan was not met. However, he noted that the Applicant had subsequently recommenced consultations.
4. Dr Murray said that he had arranged for the Applicant to undergo a series of drug tests. The Applicant has undergone 3 urine tests. These were conducted on 14 September 2018, 26 October 2018 and 7 December 2018. The results were nil for cannabis. He agreed that the results of those tests were not conclusive in showing that the Applicant had continued to abstain from cannabis use. However, he also said that the results were not meaningless.
5. Under cross-examination Dr Murray was taken to a report that he had written in November 2011 in which he indicated that the Applicant was taking prescribed drugs including 'escitalopram'. Dr Murray said that he thought that the Applicant's GP had prescribed the drug.
6. Dr Murray said that the Applicant had indicated at their first meeting that he was using cannabis. He didn't know that the Applicant was growing it but he realised that the Applicant's use was greater than expected. He accepted that daily use would have been likely if he was growing it.
7. Dr Murray was referred to a report that he had written in May of 2016. This report was prepared for the court. In the report he indicated that the situation had provided an opportunity to discuss the issue of the Applicant's cannabis use more openly and directly than had been the case.
8. Mr Grey took Dr Murray to his notes of meetings with the Applicant. These notes report fluctuations in his physical and mental state. He was unable to say when the Applicant had last used cannabis but in his view the Applicant would need to completely abstain from use to address his problem. He contemplated an ongoing plan.
9. He agreed that some of his notations could have suggested that the Applicant had not completely abstained from using cannabis but he also agreed that the notation was ambiguous and that there could have been an alternative explanation. For example Mr Grey took Dr Murray to his notes of a meeting with the Applicant held on 26 August 2016. A notation refers to "couple puffs x 1". Under cross-examination Dr Murray agreed that it could refer to the Applicant using cannabis. However, in re-examination he accepted that it could be a reference to the Applicant's use of a Nitroglycerin spray for treatment of angina. Dr Murray's notes of a meeting with the Applicant held on 7 September 2018 record that the Applicant's use of cannabis "has been reduced dramatically." Under cross-examination Dr Murray agreed that he did not know when the Applicant had used cannabis last. He agreed that more frequent tests would be needed to show that the Applicant had completely abstained from using cannabis.
10. In February 2018 Dr Murray prepared a report for the Firearms Registry. In his report he noted that the Applicant's PTSD does not impair his capacity to use firearms. He stated that marijuana use would impair his capacity to use firearms but noted that he had been assured that the use had stopped.

Carolynne Parbery

1. Ms Parbery is the Applicant's partner. She has known him since 1995. She stated that she believes he has always behaved responsibly and properly with firearms.
2. Ms Parbery is aware of the the Applicant's charges for cultivating cannabis and that prior to his arrest he had used cannabis for relaxation. She said that it had a calming effect and assisted him in sleeping.
3. In a letter to the Toronto Local Court dated 11 May 2016 she described the Applicant's PTSD symptoms in the following way: "Robert has a multitude of health problems, but life mental health issues are most relevant to this matter. Of primary concern is his PTSD which results in challenging behaviours/symptoms these being low self-esteem, acute insomnia and recurring nightmares, frequent outbursts of anger, withdrawal and reluctance to socialise, a tendency to be overbearing in attempts to promote his opinion - usually expressed using an irrational line of argument, emotional insecurity and anxiety."
4. She said that she has not seen him use cannabis at all since his arrest and believes that he has not used it since that time. She said that his PTSD symptoms have partly returned. He has not been as calm and has had difficulty sleeping.

Character references

1. The Applicant also relies on character references from Ms Angela Besant and Ms Pauline White. Each speaks highly of the Applicant. However, neither reference indicates that the author is aware of the Applicant's background or the issue that have brought the matter before the Tribunal.

Submissions

1. Mr Churches submitted that the Applicant has held a firearms licence for a long time and that he has held it without any issues regarding firearms safety or use.
2. He notes Dr Murray's view that the Applicant's PTSD does not affect his capacity to use firearms and that as long as he is not consuming marijuana he is able to exercise continuous and responsible control over firearms. The Applicant's evidence is that he has not used cannabis since he was charged. Mr Churches submitted that where ambiguous notations appear in records obtained from Dr Murray, there is an alternate explanation to that argued by the Respondent i.e. the Respondent's contention that the Applicant has continued using cannabis.
3. The Applicant accepts that he made mistakes in regard to the completion of the firearms licence application forms. However Mr Churches submitted that it was not a deliberate act intended to mislead or that it was for gain.
4. Mr Churches accepts that the Applicant's sharing cannabis with his mates is technically a supply of the cannabis. However, he submitted that it was not supplied for commercial gain. He further submitted that the Applicant was brutally honest and did not attempt to hide the fact that he grew and used cannabis. He did not use firearms whilst under the influence of cannabis and his offences are unrelated to his use of firearms.
5. Mr Churches referred for support to the decision in Gorgieski v Commissioner of Police, NSW Police [2006] NSWADT 214 where the Tribunal set aside a decision to revoke Mr Gorgieski's firearm licence. In that matter Mr Gorgieski was charged and sentenced with possessing and cultivating cannabis. He was convicted and fined $200 for the possession charge and $400 for the cultivation charge. He had no other criminal record. The Tribunal found that while there was no doubt that the drug offences were serious Mr Gorgieski's offence was an isolated incident and there is no evidence before me that it has impacted or is likely to impact on public safety. Mr Gorgieski cooperated with police and made admissions as to his conduct. There is nothing before the Tribunal to suggest that he is likely to offend again. Mr Gorgieski's offence was not related to his firearms licence nor did it involve violence or other threat, damage to property or dishonesty and on this basis it can be contrasted to previous cases.
6. In the matter of Turley v Commissioner of Police NSW Police Force [2012] NSWADT 162 Mr Turley had a long-term alcohol dependence that remained untreated. The Respondent's determination to revoke Mr Turley's firearm licence was based on the view that his alcohol addiction and diagnoses of Alcohol Dependence Disorder raised questions about his ability to exercise continuous and responsible control over firearms. In setting aside that decision I stated: 35. The Taylor Report advised that there was no indication that the Applicant suffers from any psychological or psychiatric condition which may impact on his ability to exercise continuous or responsible control over firearms. At the time Dr Hook gave his evidence he held the view that there was virtually no risk to public safety if the Applicant were given access to a firearm. This view was qualified in that Dr Hook conceded that his view was dependent on the Applicant's continued abstinence from alcohol. 36. I accept that evidence. I also accept that the degree of confidence in the Applicant's ability to continue his abstinence from alcohol would increase as the period of abstinence increased. 37. On the basis of the evidence before me, I am satisfied that there is virtually no risk to public safety if the Applicant were given access to a firearm.
7. Mr Churches submitted that there is virtually no risk to public safety if the Applicant is granted a firearms licence or permit. His abstinence is significant and the longer the abstinence the more confidence there can be that there is virtually no risk to public safety.

The Respondent's case

1. The Respondent relies on the material that I have referred to above and also notes the concessions that were made under cross-examination. Mr Grey provided both written and oral submissions.
2. The Respondent also provided material on a confidential basis. That material has not been provided to the Applicant or to his solicitor.
3. [Not for publication]
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5. The Respondent contends that the Applicant is not a fit and proper person to hold a firearms licence or permit and that he cannot be trusted to have a firearm without endangering the public.
6. The Respondent notes that the Applicant has been a drug user for a very long time. In February 1987 he was placed on a 12 months recognisance for the offence of 'cultivate prohibited plant'. In June 2016 he was again before the Local Court for the offences of 'cultivate prohibited plant' and 'possess prohibited drug'. The Applicant does not dispute his long use of cannabis. That use is also confirmed by Dr Murray and Ms Parbery. Ms Parbery gave evidence that the Applicant's use of cannabis has eliminated his dependence on prescription drugs that had adverse side effects. It also decreased his consumption of alcohol.
7. The Respondent contends that the Tribunal could not be confident that the Applicant would not use marijuana in the future. Dr Murray accepted that marijuana use would impair the Applicant's capacity to use a firearm and that when he was under the influence of marijuana he would not have been able to be relied upon to exercise continuous and responsible control over a firearm.
8. Mr Grey submitted that the Applicant has a history of either making false statements to serve his immediate needs, or of being unwilling or unable to fulfil commitments made or obligations imposed upon him. In support of this contention he points to the evidence that shows that the Applicant did not comply with the terms of the Court Order that required monthly consultations with Dr Murray and also required that the Applicant take prescribed medicines.
9. Mr Grey also contends that the Applicant made a series of deliberate and serious false statements in firearms licence applications, acknowledging that to do so is a serious offence under the Act. He submits that if the Applicant is comfortable to make false statements about matters of known fact under risk of severe penalty, any statement he makes about his future intent should be regarded with extreme suspicion.
10. Mr Grey referred to the Tribunal decision in Bladen v NSW Commissioner of Police [2015] NSWCATAD 240 in which the applicant had failed to provide relevant information in a licence application form. The form specifically asked whether the applicant had been known by another name. Mr Bladen had left that section blank and had not advised that he had previously been known as Peter John Roche. The Tribunal found that Mr Bladen left these section blank knowing and understanding the information sought. The Tribunal was not satisfied that Mr Bladen was honest when he told the Tribunal that literacy problems had prevented him from completing the forms appropriately or that he didn't think the name Roche was relevant. The Respondent's decisions to revoke Mr Bladen's category ABH firearms licence and high calibre pistol permit were affirmed.
11. Mr Grey referred to the Tribunal decision in Joseph v Commissioner of Police, NSW Police Force [2019] NSWCATAD 4. In that matter Mr Joseph made sixteen 'permit to acquire a handgun' applications and eight 'permit to acquire high calibre pistols' applications. He had already bought the guns when he applied for the permits. He had bought them because they were cheap. The Tribunal agreed that he had provided information in each application which was false and misleading in a material respect in respect of the reason for the acquisition of each gun. The Respondent's decisions to revoke Mr Joseph's firearms licence and high calibre pistol permit were affirmed.
12. The Respondent also contends that the Applicant failed to comply with the Court ordered treatment plan. The treatment plan required that he continue monthly consultations with Dr Murray, or more regularly as determined by Dr Murray; to take all medication prescribed by Dr Murray and/or any other treating practitioner; and to consult with Dr Murray with a view to eliminating his use of marijuana, and arranging an alternative prescription medication in place of his marijuana use.
13. Mr Grey submitted that, with the exception of the first two months following the making of the Court Order, the Applicant has been in continuous and significant breach of the treatment plan in that he did not continue monthly consultation with Dr Murray. Mr Grey also submitted that there is some lack of candour, openness or truthfulness by the Applicant about his taking of medication.
14. Mr Grey submitted that there is no evidence of the Applicant engaging in any form of consultation with Dr Murray for the purposes of eliminating his use of marijuana and arranging an alternative prescription medication in place of his marijuana use. He further submits that the Applicant has a poor record of attending upon Dr Murray for consultation, does not appear to have been fully open with Dr Murray about his taking of prescribed medications and has ceased taking any medication for PTSD.
15. Mr Grey referred to Dr Murray's notes of meetings with the Applicant held on 26 August 2016 and on 7 September 2018 which suggest that the Applicant had continued to use of cannabis and that he had not completely abstained.
16. Mr Grey submitted that Dr Murray did not offer any professional assurance about the likelihood of the Applicant not using cannabis again and Ms Parbery would not be held accountable for the Applicant's ongoing choices. Ms Parbery noted that several of the Applicant's PTSD symptoms have re-emerged since he ceased using cannabis. Mr Grey noted that the question remains as to whether the Applicant will succumb to the use of cannabis to deal with the re-emergent PTSD symptoms when these proceedings are concluded.
17. In regard to the drug testing, Mr Grey submitted that the decision to undertake urine drug testing and the decision of the terms of reference for the testing were taken without consultation with the Respondent.
18. The Respondent provided a May 2017 Mayo Clinic publication which contains an article Clinical Interpretation of Urine Drug Tests. Under the heading 'Detection Times', the approximate detection time for marijuana in urine is 3 days for single use, and 5-7 days for moderate use (4 times/week). Chronic use (daily) detection times are 10-15 days. Mr Grey submitted that as the testing undertaken by the Applicant was carried out at intervals of seven weeks and then six weeks, the results are almost meaningless. He argued that it would not be possible to conclude that for the period between 14 September 2018 and 7 December 2018 the Applicant had not used cannabis.
19. It is not in dispute that the Applicant is still afflicted by PTSD and he is not taking any medication for this condition. Mr Grey submitted that the Applicant has a deep-seated medical condition that is a driver for his continued use of cannabis and the test results do not show that he has ceased its use.
20. Mr Grey submitted that the Tribunal could not have confidence that the Applicant will not return to the use of cannabis because of: 1. his long history of affliction with PTSD; 2. his total abandonment of prescribed medications to deal with it; 3. his history of non-compliance with the Court Orders; and 4. his pre-disposition to making false statements.
21. Mr Grey submitted that the public interest for a safe community is strong and should prevail.

Discussion

1. As noted, the Applicant has received a certificate under section 128 of the Evidence Act 1995. He was candid in giving his evidence regarding cannabis cultivation and use and I am satisfied that he did not withhold information that is crucial to my determination. As I have noted, the facts of the March 2016 incident are not in dispute. The Applicant did not attempt to hide the fact that he grew and used cannabis nor did he attempt to conceal either his PTSD or his use of cannabis in attempts to self-medicate.
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3. I accept the Applicant's evidence in regard to his failure to correctly answer questions on various firearms licence application forms. The authorities to which Mr Grey has referred me can be distinguished on their facts. I am satisfied that he made mistakes in regard to the completion of the application forms. However, this is not a matter in which the Applicant deliberately withheld information. I do not consider that this failure reflects on his fitness and propriety to hold a firearms licence or permit to acquire a firearm to the extent that it would prevent him holding a licence or permit.
4. I also note the Respondent's contention that the Applicant supplied cannabis to his friends. I accept that this supply was not for commercial gain and in my view the issue can be disregarded for the purposes of this matter because of the time that has passed since it occurred. I hold the same view in regard to any allegation that the Applicant may have driven a motor vehicle while under the influence of cannabis.
5. There is no evidence on which I could conclude that the Applicant has ever used firearms whilst under the influence of cannabis. I accept that his use of cannabis is unrelated to his use of firearms.
6. On the basis of Dr Murray's evidence, I am satisfied that the Applicant's PTSD does not affect his capacity to use firearms and that as long as he is not consuming marijuana he is able to exercise continuous and responsible control over firearms. However, I accept Dr Murray's evidence that marijuana use would impair his capacity to use firearms.
7. Dr Murray's notes indicate that the Applicant's use of cannabis "has been reduced dramatically." In my view it is probable that he has ceased using cannabis. In the circumstances I am satisfied that the Applicant is a fit and proper person to hold a firearms licence and I do not consider that it would be contrary to the public interest for him to do so.
8. However, I agree with Mr Grey that there is reason to be cautious in regard to the question of whether he may return to the use of cannabis. As Mr Grey noted, the Applicant is still afflicted by PTSD, he is not taking medication for that condition and some of his symptoms have returned. That condition was previously a driver for his use of cannabis.
9. In my view, these concerns would be addressed if the licence and permit to acquire a firearm were issued subject to conditions. The Applicant has agreed to this approach. The appropriate conditions would be that the Applicant has monthly consultation with his psychiatrist and that he undertakes regular drug testing. The frequency of the drug testing should be as agreed between the parties. However, if the parties are unable to reach agreement on the frequency of the drug testing within 30 days of this decision, the matter may be relisted to address the issue. The Mayo Clinic publication that is in evidence could provide a useful guide in regard to that issue.
10. These conditions should remain in place for a period of twelve months and the Applicant should provide evidence of compliance with the conditions to the firearms registry on a monthly basis.
11. Subject to these conditions, it is my view that the correct and preferable decision is to set aside the Respondent's decision to refuse to grant a Category AB firearms licence and a permit to acquire a firearm.

Orders 1. The decision of the Commissioner of Police, NSW Police Force to refuse to grant Robert John Armstrong a Category AB firearms licence and a permit to acquire a firearm is set aside. 2. The decision is made that Robert John Armstrong is granted a Category AB firearms licence and a permit to acquire a firearm subject to the conditions that, for a period of 12 months from the date of these orders, the Applicant is to: 1. attend monthly consultation sessions with his psychiatrist; and 2. undertake regular drug testing. 1. The Applicant is to provide evidence of compliance with these conditions to the firearms registry on a monthly basis or as otherwise agreed between the parties. 2. If the parties are unable to reach agreement on the frequency of the drug testing that is need to comply with Order 2 within 30 days of this decision, the matter may be relisted to address that issue.

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: 19 August 2019