Commissioner of Police, NSW Police Force v Stephinson

Relevant legislations

1. Section 3 of the Firearms Act provides as follows: 3 Principles and objects of Act (1) The underlying principles of this Act are-- (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety-- (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows-- (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.
2. Section 11 of the Firearms Act states: 11 General restrictions on issue of licences (cf 1989 Act s 25, APMC 4, 5, 6) (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. (2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made. (2A) Subsection (2) does not apply if the application is for the renewal of a licence (including the renewal of a category A or B licence that involves the addition of either of those licence categories to the previous licence). (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 (b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State. (3A) Despite subsection (3) (b), the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned. (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of-- (a) the applicant's way of living or domestic circumstances, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind. (5) A licence must not be issued to a person who-- (a) is under the age of 18, or (b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or (c) is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked), or (d) is subject to one of the following in relation to an offence prescribed by the regulations-- (i) a good behaviour bond, whether entered into in New South Wales or elsewhere, (ii) a community correction order imposed in New South Wales, (iii) a conditional release order imposed in New South Wales, or (e) is subject to a firearms prohibition order, or (f) is a registrable person or corresponding registrable person under the Child Protection (Offenders Registration) Act 2000 . (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. (5B) The Commissioner is not, under this or any other Act or law, required to give any reasons for not issuing a licence on the grounds referred to in subsection (5A). (6) Except in the case of a firearms dealer licence or where the applicant's genuine reason is business or employment, a licence must not be issued to a person who is not a natural person. (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.
3. The Appellant had refused the Respondent's firearms licence application on the basis of ss 11(4) and 11(7) of the Firearms Act.

Notice of Appeal

1. The appeal is an internal appeal brought under the s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Pursuant to s 80(2)(b) of the NCAT Act, an Appellant can appeal as of right and a question of law or with the leave of the Appeal Panel on any other grounds.
2. In so far as the appeal before us is based on grounds that require leave to appeal, the Tribunal has summarised the relevant principles in Collins v Urban [2014] NSWCATAP 17 at [84]: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
3. Nextly, in the Notice of Appeal, the Appellant provided the following three grounds of appeal: 1. The Senior Member failed to consider relevant material; 2. The Senior Member failed to correctly apply the law in determining that there was no real and appreciable risk to the public in the Respondent being issued with a firearms licence; and 3. The Senior Member failed to provide adequate reasons.
4. The Appellant also seeks to extend the appeal to the merits of the appeal on the basis that the Senior Member incorrectly applied the facts when determining there was no real and appreciable risk to the public in the Respondent being issued with a firearms licence.

Ground 3 - failure to provide adequate reasons

1. These two grounds are closely related and hence it is appropriate to deal with them together.
2. Further, we note that the Appellant's submissions under these grounds also raised the question of whether or not the Tribunal wrongly attributed weight to certain pieces of evidence or failed to give appropriate weight to other pieces of evidence, being grounds upon which leave to appeal would be required.
3. We accept that the failure to give adequate reasons is an error of law: see, for example, Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110.
4. We also accept that the failure to take into account a relevant consideration may amount to an error of law where on appeal it appears that the Tribunal or Court below did not give a 'proper, genuine and realistic consideration of the relevant consideration' or the purported taking into account of relevant considerations was 'merely formulaic': see Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] and Bruce v Cole [1998] 45 NSWLR 163 at [185] - [186].
5. The Appellant's submission in summary was that in respect of: firstly, the Respondent's mental health; and secondly, the evidence as to the Respondent's threats of self-harm or threats to others, the Tribunal erred in: 1. Not giving proper considerations to these relevant matters; 2. Failed to provide adequate reasons for concluding that despite these two areas of concern raised by the Appellant, the Tribunal was satisfied there was not such a significant risk to the public to make it contrary to the public interest to issue a firearms licence to the Respondent; and 3. The Tribunal erred in the weight it gave to the evidence it referred to and in its discounting of the evidence relied on by the Commissioner.

The evidence of the Respondent's mental health

1. The Appellant, firstly, noted that the Respondent relied upon the report of Dr Altman dated 18 February 2021 which relevantly stated the following: I consider Mr Stephinson a fit and proper person to hold a firearms licence. He uses his firearms licence for hunting and for sport (such as trap shooting). These aforementioned reasons for holding a firearms licence are therapeutic for him and help his mental well being. Mr Stephinson does not have any suicidal ideation and he has no thoughts of harming anyone with a firearm. He has not in the past posed a risk to himself of suicide or of harming anyone with a firearm, He has had no untoward incidents with a firearm since the introduction of his firearms licence over ten years ago. His having a firearms licence does not put his life or the life of anyone in the public at risk.
2. The Respondent submits that this report is 'absent of reasoning and should not have been accepted by' the Tribunal. The Respondent also contends that the Tribunal was duty bound to reject the opinion in this report because it was deficient as to the reasoning, let alone when it was in divergence to the other reports of Dr Altman.
3. The submission of the Appellant was that the Tribunal failed to take into account the following reports and also failed to provide adequate reasons for not giving appropriate weight or taking into account the following reports.
4. In the report from Dr Altman dated 1 August 2018, he relevantly records the following: 1. "[the Respondent] suffers from severe chronic post-traumatic stress disorder with associated major depression. In addition, he has used alcohol and marijuana excessively for periods since Afghanistan. 2. at present [the Respondent] is taking 600mg of Aurorix per day. 3. it is likely that [the Respondent] will require long-term psychiatric medication and treatment.
5. In Dr Altman's Department of Veterans' Affairs Impairment Assessment of 5 November 2019, he records the following: 1. How often does the veteran experience symptoms? Answer: Symptoms are persistent - occurring every day. 2. Severity of the distress / impairment: Answer: Major/Considerable - release from the distress is difficult, even with support and reassurance. 3. Noticeable to others? Distress or pre-occupation is obvious to casual observers unfamiliar with the veteran. 4. Most accurate description of veteran's behaviour: Answer: Obvious, definite disturbance in behaviour. 5. Therapy recommended: Answer: Intensive Specialist Psychiatric out-patient treatment and/or short periods of inpatient care.
6. Dr Altman in his report of 9 November 2019 also records the following: A summary of how the experiences during the Respondent's army service is impacting on the Respondent: ● "1....nightmares... ● "2 recurrent instructive distressing thoughts about his Afghanistan experience on a virtual daily basis... ● "3....flashbacks... ● "11. He is irritable. ● "12. He has an exaggerated startle reaction. ● [h]as been feeling depressed since Afghanistan. He presented with low mood, sleep disturbance and diurnal variation in mood, poor appetite, diminished energy, impaired concentration, low, confidence, and motivation, he stopped, enjoying most activities... ● He smokes two joints of marijuana a day- "it makes me go to sleep for a few hours". ● "there is frequent discord in his marriage, and in this regard, he stated ·1 am depressed, irritable, unreasonable". ● "he stopped working approximately three months ago, as he was not coping and to this regard he stated, "I wasn't coping - panic, attacks, and unproductive. I was short and cranky" ● "in summary, in my opinion, as a result of his Afghanistan war experience.... [psychiatric disorders] In my opinion due to these disorders, he is currently unfit to work, and in my opinion, his ability to do work should be reviewed in one year."
7. In the report of Dr Altman of 8 June 2020, he records the following: 1. "[the Respondent] suffers from a severe chronic post-traumatic stress disorder with associated major depression, alcohol, use disorder, drug abuse (marijuana abuse) and [unrelated medical condition]." 2. "[the Respondent] suffers from symptoms, indicative of a severe chronic post-traumatic stress disorder ... Nightmares on most nights, he experiences recurrent intrusive, distressing, thoughts about his Afghanistan experiences. On a daily basis, he experiences flashbacks on a virtually daily basis, he continues to avoid many of the thoughts and reminders associated with his Afghanistan war experiences, he becomes distressed on exposure to some reminders of his war experiences, he continues to be a loner, and to field attached from others, he has difficulty showing affection towards his loved ones. he suffers from sleep, disturbance and concentration impairment. he is irritable, he has an exaggerated startle reaction and his hyper vigilant." 3. "he stopped working as he was experiencing panic attacks, he was irritable, and he was feeling aggressive towards incompetent people. He was not coping at work when he stopped working in August last year." 4. "he is currently drinking approximately four drinks of alcohol approximately three times per week. He smokes two joints of marijuana on a daily basis." 5. "from November last year [2019] until February (2020] this year, he attended the veterans treatment centre at Concord for approximately four months where he received treatment for his physical conditions and for his psychiatric conditions."
8. Finally, the Appellant refers to Dr Altman's report dated 8 February 2022 which relevantly records the following: 1. "Mr Stephinson continues to suffer from symptoms indicative of severe chronic Post­ Traumatic Stress Disorder. He experiences nightmares on most nights, he experiences intrusive and distressing thoughts about his Afghanistan war experiences on a daily basis, he experiences flashbacks twice a week ... he suffers from sleep disturbance and concentration impairment." 2. "[the Respondent] lakes aurorix 600mg in the morning." 3. The Respondent advised that he had stopped work in August 2019 as "[he] wasn't doing well ... I wasn't able to meet the clients. I was having public panic attacks. I wasn't able to focus." 4. "In summary in my opinion as a result of his Afghanistan war experience Mr Stephinson continues to suffer from a severe chronic Post-Traumatic Stress Disorder, with an associated Major Depression, Alcohol Use Disorder, Substance Use Disorder and [unrelated medical disorder]. In my opinion as a result of these psychiatric disorders alone he is totally and permanently unfit to work and in my opinion he should be place[d] on the 'T & Pl' Disability Pension."
9. The submissions of the Appellant then proceeded in the Appellant's written submissions at paragraph 24 - 26 as follows: 24. The level of detail and reasoning in the report of 8 February 2022 to support the Respondent's claim for a disability pension, is in stark contrast to the report of 18 February 2021 to support his licence application. The report of 8 February 2022 entirely contradicts the findings of the previous report and is directly relevant to the Senior Member's consideration of the Respondent's psychiatric history and his current mental state. Despite this, the Senior Member did not reference the report at all in his decision. 25. The decision is absent of any reasoning which exposes what weight, if any, was placed on the various reports, let alone what weight was given to the substantial difference in the contents of and ultimate opinion reached in each report. While it may be, to some degree accepted that they were authored for different purposes (employment pension compared with firearms licensing), the earlier reports paint a grave position of the Respondent's psychiatric health. However, the firearms licensing report simply asserts a positive and supportive position with no consideration at all of the psychiatric history, let alone whether the disorders are being treated and/or stable. 26. As such, it was not open to the Tribunal to be satisfied that there was virtually no risk, let alone to form such a state of satisfaction, without engaging in the material and exposing the reasoning.

The Tribunal's reasons

1. The relevant paragraphs of the Tribunal's reasons include the following: 4 … During the review process Mr Stephinson had provided a report from a Consultant Psychiatrist that Mr Stephinson had been treated for chronic Post Traumatic Stress Disorder (PTSD) since 2013 and that at no time had Mr Stephinson posed a risk to himself or suicide or harming anyone else with a firearm … 14 … Reference was also made to the Department of Veterans Affairs forms completed by Dr Altman where at page 86 of the s-58 documents a diagnosis of PTSD Major Depression (and other associated diagnosis) are listed as Mr Stephinson's listed 'disabilities' at the time of the assessment. … 25 Mr Stephinson agreed that his wife was called and she took him to Royal North Shore Hospital (RNS) from the scene as Police had broken his right ACL while he was in handcuffs. Mr Stephinson confirmed that when the 'Anzac Day' incident occurred in 2013 he was still in the Army. He said that he left the ADF (Reserves) in 2015/2016. He said that he was first diagnosed with Post Traumatic Stress Disorder (PTSD) by Dr Altman. The background to the PTSD diagnosis arose from his ADF employment. He said that he had done a 6 month tour of Afghanistan in 2007. He said that he saw Dr Altman after being referred by Dr Henson. He had seen Dr Henson in order to address matters relating to seeking the reinstatement of his firearms licence in 2013/2014 following its suspension arising from the 'Anzac Day' incident. … 45 Mr Stephinson did not see these matters as involving treatment or related matters. He said that he saw the matters as being administrative in nature such as for example the prescribing of medication. His recollection was that the 6 June 2020 consultation was a telephone consultation and therefore it could not have involved treatment. His evidence was that he only saw Dr Altman sporadically once or twice a year and then not for a long period. … 50 In respect of a 2019 report by Dr Altman at pages 145-147 of 'R-3' the Psychiatrist makes reference to: 'the above features are indicative of a severe chronic Post Traumatic Stress Disorder'. The features reported to Dr Altman being: more of a loner, feeing detached from others, difficulty showing affection towards loved ones, suffering from sleep disturbance, poor concentration, irritability, and being hyper-vigilant. These matters were reported on 9 November 2019. At page 233 of 'R-3' is a reference to the MLC claim form that was completed with Dr Rees on 10 September 2020 whereby Mr Stephinson is deemed unfit for work predominantly due to PTSD. At item 11 of the form Dr Rees notes that: Needs PTSD managed well before he will be fit to work. … 66 The Commissioner submitted that the following matters counted against the Tribunal granting Mr Stephinson a firearms licence. • The mental health of Mr Stephinson including his PTSD. … • The report of Dr Altman confirming chronic PTSD. … 106 Turning to the final matter concerning Mr Stephinson's current psychological suitability to be issued a firearms licence, I note that Mr Stephinson relies on the report of Dr Altman dated 18 February 2021. Reliance is also placed in exhibits 'A1'-'A4' inclusive. 107 Dr Altman was not required for cross examination. He had approximately eight years treatment history with Mr Stephinson at the time of the report. Crucially the Psychiatrist makes the following findings notwithstanding Mr Stephinson's earlier diagnosis. I consider Mr Stephinson a fit and proper person to hold a firearms licence. He uses his firearms licence for hunting and for sport (such as trap shooting). These aforementioned reasons for holding a firearms licence are therapeutic for him and help his mental well being. Mr Stephinson does not have any suicidal ideation and he has no thoughts of harming anyone with a firearm. He has not in the past posed a risk to himself of suicide or of harming anyone with a firearm, He has had no untoward incidents with a firearm since the introduction of his firearms licence over ten years ago. His having a firearms licence does not put his life or the life of anyone in the public at risk. 108 Dr Altman goes on to suggest that if the licence was suspended for psychiatric reasons (which appears to again have been the case) then it should be restored. 109 I note that Mr Stephinson has no breaches of the firearms regime established. Nor does he have any criminal history. Further there is no evidence of any behavioural incidents which might constitute domestic violence type concerns in the evidence before the Tribunal. I also note Dr Altman's opinion that Mr Stephinson is currently psychologically and psychiatrically suitable to hold such a licence.

Consideration

1. The principles relevant to adequacy of reasons has been explained by the New South Wales Court of Appeal in NSW Land and Housing Corporation v Orr [2019] NSWCA 231 at [66] - [77]; also see Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 at [58].
2. In particular, it is not necessary for a judge or Tribunal Member to detail each factor which he or she has found to be relevant or irrelevant. Nor is a judge or Tribunal Member required to make an explicit finding on each of the disputed pieces of evidence. It would be sufficient if the inference as to what is found is appropriately clear.
3. In Gautam v Health Care Complaints Commission [2021] NSWCA 85 Leeming JA with whom Payne JA and Simpson AJA agree, stated at [18]: It will, generally speaking, be necessary for the Tribunal to apprehend the gravamen of each side's case, to attend to the central aspects of those cases, and the evidence bearing upon them, and to give reasons for the critical findings of fact and the evidence upon which they turn.
4. For the reasons which follow, we are of the view that: 1. the Tribunal's reasons were adequate in the context of the case and evidence before it; 2. the Tribunal did not fail to take into account any relevant consideration; and 3. to the extent that the Appellant seeks leave to appeal the relevant findings of the Tribunal, we are not satisfied that leave to appeal should be granted because the conclusion relevantly of the Tribunal was open on the material before it.
5. First, reading the Decision as a whole, we are satisfied that the Tribunal did take into account all of the relevant reports referred to by the Appellant and, in particular, was conscious of the fact that the Respondent was recently diagnosed with and could be regarded as continuing to suffer from severe PTSD.
6. Nextly, we note that the report of Dr Altman of 18 February 2021 was admitted into evidence and there was no cross-examination upon it. Further, we note that Counsel before us at the oral hearing accepted that Dr Altman was in a position, given Dr Altman's expertise, to opine on whether or not the Respondent was a fit and proper person to hold a firearms licence.
7. The Tribunal is not bound by the rules of evidence and may enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the NCAT Act. In any event, it is incorrect to state that the report of Dr Altman dated 18 February 2021 is wholly devoid of reasoning in support of the opinion that the Respondent is a fit and proper person to hold a firearms licence: see [22] above of our reasons. In particular, the second paragraph of the report which we have quoted above sets out several reasons that Dr Altman has relied upon in support of his conclusion. Accordingly, it cannot be said that the report represents mere ipse dixit.
8. In these circumstances, we are satisfied that the Tribunal was entitled to place weight upon the report of 18 February 2021.
9. Nextly, in our view, the central proposition of the Respondent that Dr Altman's report of 18 February 2021 is inconsistent or 'in stark contrast' to the report of 8 February 2022, cannot in fact be made out.
10. The proposition that Dr Altman's opinion that the Respondent is suffering from severe PTSD is inconsistent with an opinion that the Respondent is a fit and proper person to hold a licence is not made out on the bare face of the reports. Not every mental illness necessarily means a person is not a fit and proper person to hold a licence. Essentially, such a conclusion would require an opinion to that effect by a suitably qualified expert. We note that not only did the Appellant not cross-examine Dr Altman to put that proposition to the doctor, but the Appellant also chose not to lead any psychiatric evidence of her own.
11. The two reports can be read consistently - namely, that in the opinion of Dr Altman and bearing in mind his many years' experience of treating and dealing with the Respondent, was that the diagnosis of having PTSD on 8 February 2022 was not to be regarded as an opinion by him in any way inconsistent with the report of 18 February 2021.
12. Turning then to the conclusion of the Tribunal and the reasoning of the Tribunal, in light of all of the matters we have stated above, we are satisfied that it sufficiently emerges from the Tribunal's Decision as a whole that the Tribunal also came to the view that all of the reports could be read consistently and Dr Altman's diagnosis of the Respondent having PTSD should not be regarded as being inconsistent with his opinion that the Respondent was a fit and proper person to hold a licence.
13. For these reasons, we are of the opinion that the Tribunal's reasons were adequate and sufficiently exposed the basis for the Tribunal's ultimate conclusions.
14. Accordingly, we reject those grounds of appeal.

Threats of self-harm and harm to others

1. The Appellant also refers to evidence of the Respondent making threats of self-harm and of harming others. First, the Appellant refers to ANZAC Day 2013 during which, the Appellant submits, there was evidence that the Respondent made threats of suicide to police demanding his gun 'so that I can put it in my mouth and pull the trigger'.
2. Next, the Appellant refers to evidence of a telephone conversation of 9 November 2020 in which the Respondent admitted that the stress allegedly caused by the alleged noise and vibration from the ferry was causing him to hit his children harder.
3. In this regard, the Appellant submits the statement of the Tribunal at [109] that 'there is no evidence of any behavioural incidents which might constitute domestic violence type concerns in the evidence before the Tribunal', suggests the Tribunal failed to consider the material before it in respect of the statement about hitting his children harder.
4. In respect of the above pieces of evidence, the Appellant again submits that the Tribunal failed to take into account a relevant consideration, the Tribunal provided inadequate reasons in respect of what view it came to about these pieces of evidence and, finally, in the alternative, the Tribunal failed to give proper weight to this evidence.

The reasons of the Tribunal

1. The relevant passages of the Tribunal's reasons include the following: 3 … On Internal Review the senior delegate set out material findings of fact deemed relevant to the decision under review. These included: … • 29 April 2013 firearms licence suspended on public interest grounds due to a threat to attempt suicide whilst under influence of alcohol. The context following an altercation with Police on Anzac Day evening whereby Police issued a move on direction and Mr Stephinson was collected by his wife and treated at Royal North Shore Hospital. Mr Stephinson was not armed during this incident. • Police required a psychological / psychiatry report as a result of the April 2013 matter whereby Mr Stephinson was cleared of any psychological or psychiatric disorder and his licence was reinstated. … • In August 2020 a verbal exchange / argument with ferry masters / staff at the Berowra Waters Ferry concerning incessant noise since the completion of modifications to the entry and exit ramps on shore, where Mr Stephinson was reported to have threatened to do something that he would later regret if the noise did not stop. … • In November 2020 Mr Stephinson was contacted by Transport staff concerning his complaints about the Berowra Waters Ferry. It was alleged during that contact that Mr Stephinson stated that he would kill a number of people and then himself if the ferry berthing noise was not stopped. When Police attended Mr Stephinson's Berowra address they were advised by a neighbour that he had moved address to Coffs Harbour. Mr Stephinson and Police dispute whether he had advised of a change of safe storage address. • Mr Stephinson attended Coffs Harbour Police Station and was served with a firearms licence Refusal Notice in respect of his October 2020 renewal application. 4 Mr Stephinson lodged an Internal Review on 30 December 2020 and the matter was determined 14 months later. During the review process Mr Stephinson had provided a report from a Consultant Psychiatrist that Mr Stephinson had been treated for chronic Post Traumatic Stress Disorder (PTSD) since 2013 and that at no time had Mr Stephinson posed a risk to himself or suicide or harming anyone else with a firearm. … 6 The reviewer also held concerns about the threatening behaviour directed at others concerning the Berowra Waters Ferry ramp noise, noting the earlier suspension in 2013 over mental health concerns. … … 18 … The Commissioner also sought to tender late evidence (a series of photographs depicting locations claimed as safe storage location for firearms), and a compendium of material complied from material produced under summons concerning the vehicle ferry matters including records of telephone conversation file notes by witnesses and communications to and from Transport for NSW. This material was accepted on a limited tender having given Mr Stephinson's legal representatives time to consider the material, noting that it was late, but also noting that submissions could be made as to weight. … 23 Mr Stephinson agreed that he was calling the guard and Police 'every name under the sun' and that he made a reference to 'five dead mates in Afghanistan'. He said that this was a call out to Police as to how many mates they had lost doing their duty. Mr Stephinson admitted these things but denied saying 'give me your f-ing gun now so that I can put it in my mouth and pull the trigger'. 24 Mr Stephinson said that the only reference to a gun was the younger male officer tapping his gun in its holster on his hip after he had been handcuffed. He said that as the officer did this he threatened to Taser Mr Stephinson. Reference was made to saying 'give me the Taser…. your gutless I'll do it myself'. … 26 Mr Stephinson was asked about the background and context of the issue with the vehicle ferry noise at Berowra Waters. Mr Stephinson said that he had lived there for about 9 or 10 years and the issue arose from renovations or modification or repairs to the approach ramps for the ferry where the vehicles drive on and off the ferry. He said that the changes created undulations in the ramps that caused large vibrations in their home. … 66 The Commissioner submitted that the following matters counted against the Tribunal granting Mr Stephinson a firearms licence. … • The issues around the Vehicle Ferry and anger and distress. … … 87 … Whilst he did appear taciturn at times I found no breach of his duty to disclose relevant matters to the Tribunal. Nor did I find his answers to be evasive. He was a careful and somewhat guarded witness possibly due to his training and professional experience. Such an approach as long as truthful and relevantly complete is permissible. … 100 On the matter of Mr Stephinson's behaviour and action concerning the vehicle Ferry at Berowra Waters, it appears that the parties concede that Mr Stephinson had genuine concerns about the impact that the change in noise level and vibration was having on his family. The very fact that the relevant authorities installed noise and vibration monitoring equipment in his home goes some way to establishing that they had good reason to take this concerns seriously. 101 I note that the TfNSW witness first had direct contact with Mr Stephinson on 9 November 2020. The conversation on 20 November 2020 is the significant contact whereby the witness gives evidence that Mr Stephinson said words to the effect: 'if we (TfNSW) don't fix the ramp and the rails (as he claims the rails are not straight which is causing the vibration) then he will take his own life and name us all in the letter as the cause'. This conversation includes references to involving the media and having prominent 'shock jocks' taking on his cause about the engineering design problems and lack of response by the relevant authorities. 102 This conversation which was witnessed by Mr Stephinson's wife (who was not required for cross examination) did not mention firearms. Other records from Ferry masters indicate that Mr Stephinson would take matters into his own hands. The Commissioner's further bundle was tendered late, but was allowed because it would be just to allow it with the applicant having had time to consider it. 103 When one examines the entirety of the communications in that bundle they appeared balanced and measured but for the small number of instances where Mr Stephinson's reported comments 'tip over the edge'. In the main they are an engagement on the critical issues concerning design, engineering, monitoring and posing suggested approaches to verify and hopefully rectify the perceived problems. 104 In Exhibit 'A-1' there is no mention of threats of self harm. There is reference to threats to name and shame and conduct peaceful protests. Mr Stephinson's wife states that Mr Stephinson 'lost control in containing his emotions' during the call. I note that the evidence indicates that the problem was so significant that the family relocated from Berowra Waters. 105 Having considered all of the evidence I believe that whilst it indicates a type of reaction to stress there is no evidence that anything adverse arose from that stress which would cause me to have concerns about Mr Stephnson's ability to maintain safe and continuous control of firearms. No protest, cable cutting or self harming, or naming and shaming actually occurred. In addition the crucial comments are denied by the applicant and his witness. However in the overall context and noting that Ms Princi's evidence was tested by cross examination, I consider it likely that the said comments were made by Mr Stephinson. However for the reasons outlined above that does not change the position.

Consideration

1. Firstly, we deal with the evidence of the Respondent allegedly threatening self-harm in 2013. In light of the fact that the Tribunal specifically refers to this evidence in the reasons - in particular, at [23] where the Tribunal records the Respondent's denial of the allegation - we are not satisfied that the Tribunal failed to consider this piece of evidence.
2. Further, we are not satisfied that the reasons in respect of this Decision were inadequate. We note the Tribunal made findings of acceptance of Dr Altman's report of 18 February 2021 and its conclusion that the Respondent does not have 'any suicide ideation'.
3. We also note that at [89] the Tribunal specifically noted that 'the 2015 application was renewed without incident'. Also, the Tribunal made favourable remarks as to the Respondent's credibility and as to in the way in which he gave evidence.
4. In our view, reading the Decision as a whole, the Tribunal's attitude towards the relevant evidence concerning the incident of 2013 is sufficiently clear. We are satisfied that the Decision read as a whole reveals that the Tribunal had the view that the 2013 evidence in question, which was put in issue by the Respondent's evidence under cross-examination, did not have to be determined given that it was such a long time ago; the Appellant had renewed the licence since then without incident and the expert evidence that the Respondent had no suicidal ideation.
5. We now turn to the evidence of the telephone conversation of 9 November 2020. In our view, the Tribunal's reference to the Respondent's purported comments which 'tip over the edge' (at [103]) and the reference to evidence which 'indicates a type of reaction to stress' (at [105]), includes the evidence in question as to the Respondent's treatment of his children. We also note the reference at [105] to the Tribunal having considered 'all of the evidence". Accordingly, we are not satisfied that the Tribunal failed to take into account this piece of evidence.
6. Further, we are satisfied that it sufficiently emerges from the reasons and the careful and lengthy analysis of the Berowra Waters allegation that the Tribunal's ultimate finding at [105] that 'for the reasons outlined above that does not change the position' (our emphasis) was intended also to encompass the telephone conversation of 9 November 2020. In other words, despite the stress causing the Respondent to react towards his children as alleged, the Tribunal remained satisfied that in light of all of the evidence the Respondent was still a fit and proper person to hold a licence.
7. Accordingly, in our view, the reasons were adequate.
8. Lastly, there is the submission of the Appellant concerning the statement of the Tribunal at [109] that 'there is no evidence of any behaviour incidents which might constitute domestic violence type concerns'. In our view, this single statement does not indicate the Tribunal failed to consider material before it. The statement that the noise and vibration from the ferry was causing him to hit his children 'harder' is particularly vague. There are no specifics as to the nature of the treatment of his children at this time.
9. Reading the Decision overall, in our view, the Tribunal clearly had the view that this evidence could not be seen to be encompassed within its statement of what might constitute domestic violence type concerns.
10. Further, for the reasons we have outlined above, we are satisfied that the relevant conclusions of the Tribunal dealing with the ANZAC day and Berowra Ferry allegations were open to it on the evidence before the Tribunal. As a result we decline to grant leave to appeal in respect the submission that a conclusion reached was against the weight of the evidence before the Tribunal.
11. Accordingly, we reject these grounds of appeal.

Ground 2 - failure to correctly apply the law

1. The Appellant's submission in this regard was put in the written submissions as follows (at [37] - [39], [46]): 37 The Appellant submits that the Senior Member failed to properly consider and apply the law, specifically finding that there was no danger to public safety and there was no reasonable cause to believe the Respondent would not personally exercise continuous and responsible control over his firearms. 38 Public safety, including a licence holder's own safety, is the primary focus of the public interest test and of the Act generally.15 Furthermore, where there has been, or is, a possibility of threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. 39 It is well established that when considering any danger to public safety, the Tribunal must be satisfied that there is 'virtually no risk' were an applicant given access to a firearm, as established in Ward v Commissioner of Police, NSW Police Service (Ward). The Appellant contends that the Senior Member has failed to correctly apply the law, by failing to apply the test that there be 'virtually no risk' in granting a firearms licence as per the case of Ward.

Reasoning of the Tribunal

1. The Tribunal set out its understanding of the law at [77] - [84], [110] - [117]. We also note that the Tribunal specifically referred to Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 at [72].

Consideration

1. In our view, there is no error of law or misapplication of the Firearms Act evident in the reasoning of the Tribunal. The Tribunal's statement of the law is not erroneous. The Tribunal's application of the law, in our view, also is not erroneous.
2. For the reasons outlined above, we are satisfied that it was open on a correct application of the law for the Tribunal to reach the conclusions that it did.
3. Accordingly, we reject this ground of appeal.

Reserved costs

1. This appeal was originally set down for hearing on 9 February 2024. It is not in dispute that only two days before the hearing the Respondent's solicitor advised the Respondent that the solicitor would no longer be acting for the Respondent and would not appear for the hearing. Accordingly, the Appeal Panel adjourned the proceedings and reserved the question of costs. The Appellant seeks those reserve costs.
2. It is accepted that pursuant to s 60(2) of the NCAT Act, we have to be satisfied that special circumstances exist which warrant an order for costs.
3. In the circumstances, it is plain that the adjournment was necessary and through no fault of the Respondent himself. We agree with the Respondent that the matters in dispute raised significant legal issues that made it important for the Respondent to have legal representation if he wished. We note that the Respondent did appear before us through Counsel and solicitors.
4. We also note that the general principle is that ordinarily there should be no order as to cost. Finally, we note that there is no suggestion that the Respondent has unreasonably prolonged the pursuit of the appeal and the Respondent's lawyers have conducted the appeal before us diligently and expeditiously.
5. In such circumstances, we are not satisfied there are special circumstances which warrant the award of costs that have been reserved.

Disposition

1. The orders of the Tribunal are: 1. Leave to appeal is refused. 2. Appeal dismissed. 3. The Appellant's application for costs is refused.

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: 16 May 2024