Cole v Commissioner of Police, NSW Police Force

The application for review

1. The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act). Section 75 of the Firearms Act confers jurisdiction on the Tribunal to review certain decisions including a decision to refuse a licence.
2. In determining an application for administrative review, s 63 of the ADR Act provides that this Tribunal is to decide what "the correct and preferable decision" is having regard to "any relevant factual material, and any applicable written or unwritten law". It is well established that the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before it at the time of the review: see, e.g., Tannous v Commissioner of Police [2011] NSWADT 116 at [25]. In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution, or remit the matter for reconsideration by the administrator: ADR Act, s 63(3).
3. Under s 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 is to properly consider all relevant materials and ignore all irrelevant matters: Meacham v Commissioner of Police [2020] NSWCATAP 107 at [82]. However, the Tribunal is required to base its findings of fact on "logically probative material": Meacham at [83] referring to Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62, 68 and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93] at [5]-[8], [15]-[17]. There is no onus proof: Meacham at [75].

Evidence before the Tribunal

1. The Commissioner relied on the documents lodged pursuant to s 58 of the ADR Act and her written submissions.
2. Mr Cole relied upon various documents provided over time: 1. a report dated 14 April 2022 from Michelle-Marie Townsend, Occupational Therapist; 2. a bundle of documents received by the Tribunal on 7 November 2022 and supplemented on 19 December 2022; and 3. submissions received 23 November 2022 and 17 July 2023.
3. Mr Cole gave evidence at the hearing as did Ms Townsend.

The relevant law

1. Section 3 of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual": Rial v Commissioner of Police, NSW Police Force [2023] NSWCATAP 162 at [30]; Lee v Commissioner of Police [2020] NSWCATAD 144 at [94]. Section 3 also provides that 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.
2. A licence must be refused if the Commissioner is not 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: s 11(3)(a) Firearms Act. The Commissioner is also given a broad power to refuse licences, including if it is not in the public interest for the person to hold the licence: s11(7) Firearms Act. The Tribunal, in determining applications such as this matter is required to exercise its discretion in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2011] NSWADT 50 at [23].
3. In her written submissions the Commissioner submitted that the licence should be refused as it is not in the public interest for Mr Cole to hold a licence. At the hearing it was also submitted that Mr Cole is not a fit and proper person to hold a licence.

Fit and proper

1. It is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake: AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82].
2. The determination of whether an applicant is a fit and proper person is not merely an assessment of an applicant's character but also an assessment of their conduct, likely future conduct, community confidence that improper conduct will not occur, and knowledge of the duties and responsibilities of the licence holder: Metleg v Commissioner of Police, NSW Police Force [2023] NSWCATAD 17 at [25]. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184 at [40].
3. Furthermore, in the context of firearms licensing, the Tribunal is required to form a positive state of satisfaction that an 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": Commissioner of Police v EMB [2021] NSWCATAP 63 at [45].

The public interest

1. What is meant by the term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681: "The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration."
2. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel considered that the "public interest" is an inherently broad concept providing the decision maker with the ability to have regard to a wide range of factors in exercising the discretion to refuse or revoke a firearms licence. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
3. The expression is to be considered in context, informed by the underlying principles and objectives of the Firearms Act, and having regard to the interests of the whole community: Commissioner of Police v EMB [2021] NSWCATAP 63 at [60].
4. As noted above, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety: "27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
5. That case dealt with whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130] - [134].
6. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] - [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

Consideration

1. The Commissioner's case is advanced on three bases: Mr Cole's criminal convictions, false and misleading statements provided by him and his health. The primary issue advanced is in relation to Mr Cole's physical and mental health.

Criminal convictions

1. Mr Cole has two criminal convictions as an adult, one in 1976 relating to a charge in 1974 for which he served a period of imprisonment and another in 1989 for an offence committed in 1988. Both offences, particularly the 1974 offence, were serious. At the hearing Mr Cole said he was not guilty of both offences and gave an explanation for why he was convicted. Other than the fact of the charges and the convictions there is no information before Tribunal about either offence or the circumstances leading to the charges or convictions.
2. Mr Cole has not been charged with or convicted of any offence since the 1988 offence. As noted above, his firearms licence history is unblemished. While I do not discount the seriousness of the offences, given their age and the fact that Mr Cole has not come to the attention of police for some 36 years, I do not consider that those convictions demonstrate that Mr Cole is not a fit and proper person to hold a firearms licence or that there is a risk to public safety in him holding the licence.

Medical conditions

1. At the heart of the Commissioner's concerns is Mr Cole's medical conditions, in particular his mental health. Issues concerning Mr Cole's health had not previously been raised by the Commissioner when considering his firearms licence applications. When, however, with his 2021 licence application he presented his DVA health card which referred to him as being totally and permanently incapacitated (although I note this was known to the Commissioner as far back as 2011) the Commissioner sought further information from Mr Cole about his medical conditions.
2. Mr Cole provided an undated report from Ms Townsend (received by the Commissioner in February 2022) in which she stated that she had been treating him for the past five years under the DVA Rehabilitation Appliance Program for functional concerns related directly to his medical diagnoses of spinal spondylitis/laminectomies/back pain and PTSD. She noted that Mr Cole's PTSD was registered with DVA as being directly related to a parachuting accident that occurred during training drills on active service and which resulted in his back injuries. Ms Townsend carried out several tests and concluded that Mr Cole does not present with any cognitive impairment and is not suffering from early dementia. She also stated that his depression and stress scores were of an extremely severe nature which is common in individuals with PTSD. In her opinion he was suffering from a reactive depression and high levels of stress which she identified as being primarily related to not being able to attend his regular hobbies of rifle range shooting, gun club, shooting competitions and maintaining his firearms.
3. Ms Townsend provided a supplementary report dated 14 April 2022 in which she assessed Mr Cole as being functionally and cognitively competent to carry out his previous hobbies which involved collecting guns, target shooting, participating in shooting competitions and maintaining his firearms. Ms Townsend stated that Mr Cole has no history of aberrant or dangerous behaviour. She noted, however, that he was experiencing a high degree of stress and frustration because his firearms had been removed from him. His quality of life was significantly lowered and he was experiencing reactive depression. Ms Townsend stated that from a clinical perspective it would be beneficial to his wellbeing and quality of life to return to his previous hobbies and interests relating to his guns and gun club.
4. The Commissioner summonsed Ms Townsend's clinical notes and records in respect of Mr Cole and she was questioned by the Commissioner's representative about some matters arising from the notes etc.
5. At the hearing Ms Townsend said that she has been seeing Mr Cole since 2018 when he was referred by his GP to assess any functional issues around his activities of daily living. He was not referred for PTSD but she had no reason to go behind Mr Cole's statement that he had PTSD. In a letter to Mr Cole's GP in August 2021 Ms Townsend referred to Mr Cole having PTSD. When asked whether she would have expected the GP to respond if that diagnosis was incorrect, Ms Townsend said some doctors read the report, some don't.
6. In relation to the statement in her first report provided to the Commissioner in February 2022 that Mr Cole's depression and stress scores were of an "extremely severe" nature, Ms Townsend said that this was not a diagnosis of depression (which she is not qualified to make) but an indication of Mr Cole's depressive symptomology.
7. In September 2019 Ms Townsend made a request that Mr Cole be supplied with a double size bed with a pressure care mattress and stated that he "presents with PTSD vivid nightmares and night terrors/thrashing in bed and falls out of bed". At the hearing Ms Townsend said it is not uncommon for veterans to experience nightmares etc.
8. Mr Cole has provided a letter from DVA dated 19 September 2022 which states that he has been in receipt of a Disability Compensation Payment at the Special (TPI) rate since 22 March 1989. The following have been accepted as related to his military service:

• lumbar spondylosis
• degenerative changes right knee
• deflected nasal septum
• cervical intervertebral disc lesion
• endogenous eczema
• personality disorder (A)
• sensori-neural hearing loss.

1. At the hearing, Mr Cole said that he does not have PTSD but acknowledged he told Ms Townsend that he did as at the time he understood that to be correct. It was not until he got the letter from DVA that he realised he does not have that condition. When asked why he thought he had PTSD, Mr Cole said that he had belonged to a veterans' motorcycle club and they talked among themselves and were generally on the same medications. He said the majority of the veterans had PTSD and he took it for granted that he also had PTSD after his war service.
2. Mr Cole said, however, that he has never believed that he had a mental illness. He said the last time he saw a psychiatrist was at Concord Repatriation Hospital about 40-45 years ago and then on one occasion about 20 years ago when he was enrolled in a lifestyle program through DVA. He said he has never received any treatment for a mental disorder. Mr Cole said he does not accept that he has a personality disorder and has never been treated for any such disorder. He states that it is 50 years since his war service and he is not a danger to the public.
3. Mr Cole was also questioned about the anti-depressnt medication he takes. He said that he has been taking the medication for 25 years. He said that he asked his doctor about ceasing the medication but was told to keep taking it as it was nothing to worry about. Mr Cole said that the medication helps with flashbacks and to assist with controlling his temper and impatience. He insisted he is not suicidal.
4. The Commissioner is critical of Mr Cole for failing to provide medical reports from his GP and a psychiatrist about his suitability to hold a firearms licence and capacity to handle firearms safely. The Commissioner accuses Mr Cole of lacking transparency which goes to his fitness and propriety to hold a licence. Mr Cole has provided a letter from a GP in the practice he goes to who declined to provide a report as she had no prior knowledge of Mr Cole. The GP referred Mr Cole to a mental health service in a larger centre for an assessment but the centre declined to undertake the assessment. Mr Cole states that there is a constant rotation of GPs at the medical practice he attends and it is very difficult to get an appointment with a regular doctor. He said he tried to obtain a psychiatric report from three or four psychiatrists but it is virtually impossible to obtain an appointment.
5. Based on the material before me I am satisfied that Mr Cole has never been diagnosed with PTSD. Nor has he been treated for PTSD. It does appear he has some symptomology, such as nightmares and night terrors, which might be thought to be indicative of PTSD, but in the absence of any diagnosis by an expert, it cannot be said that he has any such condition. The only reference to Mr Cole having a personality disorder is in the list of accepted conditions provided by DVA in September 2022. The diagnosis seems to have been made sometime before or around 1989. I accept Mr Cole's evidence that he was never on any treatment for this condition. I also accept his evidence, and draw no adverse inference from the fact, that he was unable to obtain a report from a psychiatrist for these proceedings. I note from the Tribunal file that the matter was adjourned several times to accommodate Mr Cole seeking such a report but he was unable to provide one.

False and misleading statements

1. The Commissioner states that in 2011 Mr Cole falsely declared that he was eligible to work with children when this was not the case as a result of his 1974 conviction. There is insufficient information available, including any context within which Mr Cole signed a Working with Children Declaration, to be able to reach any view about this matter.
2. The Commissioner also states that in the applications for a firearms licence made by Mr Cole on 14 May 2011 and 17 December 2021 he answered "no" to whether he had been "referred or treated for a mental or nervous disorder or illness" within the past 12 months. The Commissioner submits this answer was false and misleading. I note that in the 2016 renewal application Mr Cole indicated the same. In relation to the 17 December 2021 application, the Commissioner states that this statement is contrary to the report by Ms Townsend in which she states she has been treating him for the past five years for functional concerns relating to a range of medical conditions, including PTSD. As noted above, however, Ms Townsend's evidence is that she was not treating Mr Cole for PTSD. Indeed, Ms Townsend is an Occupational Therapist and her role is to assist with Mr Cole's activities of daily living.
3. The Commissioner also submits that Mr Cole's attempts to water down concerns about his mental health go to his credit and indicate he is not a fit and proper person to hold a firearms licence.
4. Mr Cole insists that he has never been treated for any mental disorder and has therefore not made any false statement. He said that he now understands a doctor many years ago said he has such a disorder but this has not affected him for the past 50 years.
5. Mr Cole states he has been prescribed anti-depressants for the past 25 years and these help to control flashbacks and, it appears, to some extent, his mood. Ms Townsend states that in her assessment Mr Cole presented with depressive symptomology. It is possible that Mr Cole's GP has, at some point, diagnosed Mr Cole with depression but there is no evidence of why and when this may have occurred or the nature of any depressive illness.
6. It is well accepted that the proper functioning of the firearms licencing system depends on applicants providing true and correct information: Hunt v Commissioner of Police [2021] NSWCATAD 58 at [56]. The Commissioner's submission is predicated upon Mr Cole in fact having been referred or treated for a mental illness in the previous 12 months in 2011, 2016 and 2021. I accept that Mr Cole has never been diagnosed with PTSD. It is clear that he has not been referred to or treated by a psychiatrist or other professional for any such illness and has never been referred or treated for the condition of personality disorder despite being diagnosed many years ago. He has been prescribed an anti-depressant and was taking this medication at the relevant times. The evidence, however, does not affirmatively establish he was clinically depressed.
7. I am satisfied Mr Cole genuinely believes, despite being prescribed an anti-depressant, that he does not and has never suffered from a mental illness. On the basis of the available evidence this belief is entirely reasonable. It cannot be said that his situation is analogous to a person who was clearly aware that he had a mental illness, was being treated for that illness and concealed that fact. I accept that in answering "no" Mr Cole did not intend to deceive and believed he was answering honestly.
8. The Commissioner raised another matter at the hearing going to Mr Cole's fitness and propriety. Mr Cole indicated at the hearing that when he returned from Vietnam he was affected by his experiences. He was questioned about his attitude to the law and to authority and stated that when in the military he questioned some orders of his superiors and he sometimes disagrees with the law. He said, however, he does not ignore the law and understands what he is allowed and not allowed to do. Mr Cole points to his time as a weapons training instructor in the army and states he is very aware of safety issues and firearms. The submission made at the hearing by the Commissioner that Mr Cole has a tendency to challenge authority and this may have implications for his willingness to comply with firearms regulations appears to be based on speculation and ignores the fact that Mr Cole has abided by firearms safety regulations in the past.

Conclusion

1. The issue that I have to decide is whether there is a risk to the safety of the public if Mr Cole is granted a firearms licence and whether he is a fit and proper person to hold such a licence. There is nothing in Mr Cole's character and conduct which establishes he is not a fit and proper person to hold a firearms licence.
2. I am not satisfied, based on my findings above in relation to his past and current behaviour, his past criminal convictions, concerns about his mental or physical health or his answers in filling out the application forms, either separately or cumulatively, that it is not in the public interest to issue Mr Cole with a firearms licence.
3. It follows that the correct and preferable decision is to set aside the decision of the Commissioner to refuse Mr Cole's firearms licence.

Orders 1. The decision to refuse the applicant's Category AB firearms licence is set aside. 2. The respondent is to grant the applicant a Category AB firearms licence

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: 02 August 2024