Cook v Commissioner of Police, New South Wales Police Force

Cook v Commissioner of Police, New South Wales Police Force - [2023] NSWCATAD 244 - NSWCATAD 2023 case summary — Zoe

[3]

The evidence

The respondent did not adduce oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1) and on cross- examination of the applicant.
The applicant in his oral evidence adopted two unsigned written statements dated 16 July 2023 and 23 July 2023 respectively, which began by stating that he had been completely open and honest about his past mental health issues and felt he was being penalized for it. The report written by his psychiatrist Dr Matt McDornan had characterized his depression as episodic, which is a fairly accurate description. But the episodes that had been the causes were very major episodes in a person's life. The first was the death of his mother early in 2017. He and his mother had a very close relationship and her death at a relatively early age from cancer affected him greatly, as he believed it would any normal person.
The second episode was following an accident at work that left him unable to work for about 14 months. As a person with a high work ethic, that was a huge factor in his mental health state. On both of those occasions, he turned to mental health professionals immediately to seek the correct treatment and follow their recommendations to the letter. He had never been a danger to himself or anyone else, even at his lowest levels.
Having followed the advice of the professionals, he had used the tools provided to him and had turned his mental state around. During the treatments given by his doctors, he had learned a variety of techniques with which to handle further possible episodes that had shown themselves to be effective, as in the past year he had several circumstances thrown into his life which without the skills given to him by his doctors, could easily have led to another episode of depression.
He had faced job loss and a move interstate to his family property earlier than anticipated, which had left him living alone for a period of time until he could be joined by his partner. Those events, if they had happened in the past, could easily have caused another period of depression. But because of the skills he had learned from his doctors and his own experiences, he had dealt with those issues without any adverse effects.
A firearms licence was not something to be taken for granted or even to be applied for without a genuine reason. He had recently moved back to his family property and seeks the licence as part of the tools and skill set required to run a property. He is not a hunter or target shooter, but an empathetic person who on occasion may have the need to euthanize stock and control vermin.
Dr McDornan had written on 22 October 2022 that he would support Mr Cook's application for a firearms licence. In his opinion that single sentence served to put Dr McDornan's opinion into a very clear light. He had no other evidence or explanation to support his case other than that very simple, clear statement from a medical professional.
In oral evidence at the hearing the applicant explained that his application in June 2022 was his first application for a firearms licence, as he had never held one, apart from a learner's permit [presumably a minor's firearms training permit under s 32(4)] when he was 16. Dr McDornan had treated him for depression and anxiety in about 2019, and for PTSD in 2019 - 2020 following a serious workplace accident in July 2019.
Cross-examined by Mr Roberts on behalf of the Commissioner, he acknowledged that his treatment for depression and anxiety had extended over 10 years, since about 2008 and consequently it antedated the accident. He was no longer taking medications since January 2023. He had deviated from his treatment program in July 2021 when he stopped taking one of his medications. He had not told Dr McDornan at the time, but had told his wife, who is a senior mental health nurse. He had informed Dr McDornan when he had been able to obtain an appointment. This was a period of depression and suicidal thoughts, and was a cry for help.
In about July 2021, after he had ceased his medications, he obtained an appointment with Dr McDornan, who noted on 22 July 2021 (exhibit R2, pp 39 - 40) that he had "descended into a nasty depression and had become suicidal, and had had an experience of writing a will, but also of going to Byron several weeks ago, at about 7:00 pm at night, and standing at the lighthouse patio, contemplating jumping off".
Since 2019, he had good and bad mental health periods. In January 2020 he had been an in-patient for treatment of depression at Currumbin clinic in Queensland. His admission had lasted 5 weeks, because the transcranial magnetic stimulation [TMS] therapy took place over a 30-day period, from January 2020. By May he was not suicidal and his mental health had improved. In July 2021 he had undergone a period of decline, with thoughts of suicide, but by August 2021 his doctor had reported that he was "no longer acutely suicidal" (id., 44) and on 13 September 2021 had reported that he was "no longer suicidal" (id., 43).
He denied experiencing another period of acute suicidal thoughts in January 2022. Dr McDornan's note of 17 January 2022 (id., 50) recorded him saying he had a period before the end of 2021 when there was a family altercation with his stepdaughter (his wife Genai's daughter) over her relationship with a man that led to his slapping her at the dinner table one evening, whereupon his wife ejected him from the home and he had "an acute suicidal period". The note said he had been able to divert to a voluntary stay at Robina Public for six days. He had become less reactive and irritable, though there were residual depressive moods and that was coloured by his "quite concrete moral views of others and their conduct". The applicant stressed that it was voluntary and said he had spoken to his doctor about it. He had wanted a mood stabilizer for 12 months and had obtained it on that occasion. He had last seen Dr McDornan in October 2022, in connexion with the risk assessment.
In his evidence in the nature of re-examination the applicant pointed out that every one of his suicidal episodes had been a cry for help. He had sought help every time that he had felt his mood was dropping. As he is a diabetic, he keeps supplies of insulin at home, and if he had wanted to commit suicide, the easiest way to do it would have been to take an insulin overdose.

[4]

Respondent's submissions

Mr Roberts adopted his submissions filed on 28 July 2023 (exhibit R3) which, after setting out the background to the application and the applicable law noted the main points made by Dr McDornan in his mental health risk assessment (exhibit R1, pp 40 - 44), including:

the applicant's GP, Dr McLaren, had referred him to Dr McDornan on 5 December 2019; his clinical depression and trauma related anxiety largely stemmed from an accident in July 2018 in which he was struck by a car and "rolled along [the side of] his own truck resulting in psychological damage as well as significant trauma to his left side resulting in neuropathic pain syndrome";
Dr McDornan had treated him both as an inpatient at Currumbin Clinic and as an outpatient and had seen him regularly through 2021, having treated him since 5 December 2019; at their last clinical contact before Christmas 2022, his MADRS score was 6, which is well below any meaningful clinical depressive phenomena;
the nature of his clinical depression was probably episodic. When clinically depressed he would be subjected not just to a lowered mood and anhedonia (loss of the ability to feel pleasure), but an array of depressive cognitions including a sense of futility. The episodic nature of depression could not be predicted although a recent period of euthymia for 12 months was a very good prognostic sign. If he were to become clinically depressed in the future, his risk profile regarding firearms licensing might change.
he did not hold suicidal thinking at all, although he had in the past when he had been clinically depressed, though he was able to communicate it and undertakes an open dialogue around risk with the doctor and his wife. A deal of his thinking had been about themes of non-existence rather than active suicidal planning.
"There is an inherent risk in being diagnosed with clinical depression that Mr Cook may become depressed in the future [which] would interrupt the continuous responsible control over firearms. That was inherent in his diagnosis. This position is balanced with the notion that he has responded clearly to treatment and is not just treated with response but to remission at present. It is possible, as in the case of anyone with clinical depression, that he will relapse. I have been through this with his wife and himself around the early signs of clinical depression and the need to not utilise firearms in these settings"; and -
Dr McDornan did not believe the applicant's conditional impairment would put the public at risk if he were to have possession of a firearm. He had never talked about hurting other people in terms of retribution. He had spoken of a strict moral code he holds around family behaviours and interventions, although those were expectations of conduct rather than anything else.

The respondent contended that the assessment was based largely on the applicant's self-reporting. It referred to his taking medication but provided no details about the nature of that medication and dosage. Further, it had stated that the applicant had never deviated from a prescribed course of action or medication and remained compliant and actively invested in his own health, which was contrary to Dr McDornan's statement in his report dated 22 July 2021 (exhibit R2, p 39) that he had stopped taking hs Dothep of his own volition some weeks previously and had not told his wife. The report did not refer to the applicant's diagnosis, or past diagnosis of PTSD and whether or not that had an impact on the risk profile. He did, however, mention the possibility of relapse, of future depression that could impair the continuous responsible control over firearms and that the applicant had previously had suicidal ideation.
Dr McDornan's report dated 25 November 2019 recorded that the applicant had experienced a clear PTSD and descent into clinical depression, and had a history of depression stretching back over his life, interspersed with generalized anxiety (id., 18 - 20), while his report dated 20 January 2020 stated that the applicant was an inpatient at Currumbin Clinic for a period of one week (noting that his stay subsequently went for over a month) in order to "facilitate a change in his medication, manipulation of hypnotics to better his sleep and consideration of magnetic stimulation therapy used to treat depression" (id., 21). He noted that the applicant had been admitted to Currumbin Clinic for "suicide watch after [his] marriage ended" (id., 23)
While Dr McDornan wrote on 5 May 2020 that the applicant was not suicidal, on 22 July 2021 he stated that the applicant had "descended into a nasty depression, becoming suicidal, writing a will and contemplating jumping off a cliff at Byron. He had declined to stay at the Currumbin Clinic, saying he would "never go back there". By August-September he was no longer suicidal, but Dr Denise McLaren, his GP, stated that he had "had a lot of suicidal thoughts recently" but did not have a plan (id., 86). The respondent also pointed to a number of other entries in exhibit R2 about suicidal moods and recovery from them. The respondent submitted that the evidence showed the applicant to have had a history of serious mental health problems, including suicidal ideation and continued to take psychotropic medication. The assessment did not adequately deal with the respondent's concerns for his mental health and did not speak about his diagnosis or past diagnosis of PTSD and whether or not that had an impact on the risk profile.
The statement that the applicant had never deviated from a prescribed course of action or medication was contradicted by his note that the applicant had stopped taking his medication of his own volition without telling his wife. That period had coincided with an incident on 22 July 2021 when the applicant had suicidal ideation (id., 39) and also stated that there was a possibility of relapse which could also affect his responsible control over firearms.

[5]

Consideration

Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's refusal of a licence or permit: s 75(1)(a). An internal review was applied for and duly determined (ADR Act s 55(3)). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that 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 the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.

[6]

Mental health

The respondent's case on the mental health issue essentially rests, not on evidence of overt acts or incidents as such, but on excerpts from medical records from 2019 onwards. The respondent expressed concern about ten of the documents produced on summons (exhibit R2), nine of them prepared by Dr Matt McDornan, consulting psychiatrist, who has been treating the applicant over that period, and one from Dr Denise McLaren, his general practitioner. There is also Dr McDornan's risk assessment prepared for the Firearms Registry and dated 14 January 2023, which is discussed separately below. The ten reports identified by the respondent may now be outlined: 1. Dr McDornan's report of 25 November 2019 states that the applicant "has experienced a clear PTSD and descent into clinical depression", "has a sense of futility" and "has a history of depression stretching back over his life interspersed with generalized anxiety" (exhibit R2, pp 18 - 20). The report goes on to explain that the PTSD resulted from an accident on 23 July 2018 when he was standing behind the back of a trailer removing an excavator when a car came over a rise with the sun in the driver's face, clipping the trailer and crushing him in a roll-like manner along the side of the trailer. While mentioning a "sense of futility", the report adds that "He has never had an active suicidal plan nor intent", and "He was not suicidal. He was not psychotic". He had a major depressive condition and PTSD resulting from the accident. 2. Dr McDornan's report of 20 January 2020 states that the applicant was an inpatient at Currumbin Clinic for a period of a week (extending for over a month) to "facilitate a change in his medication, manipulation of hypnotics, to better his sleep and consideration of TMS [transcranial magnetic stimulation for treating depression] trial (id., 21). In cross-examination the applicant explained that his stay had been extended because the TMS therapy took 30 days. 3. An undated Currumbin Clinic report (but apparently post 2019) states that he was previously admitted to that clinic in 2009 (id., 23) for "suicide watch after [his] marriage ended". His first marriage appears to have ended in 2008. He was also suffering from anxiety as a result of the accident in 2019. 4. Dr McDornan reported on 6 May 2020 that the applicant was not suicidal (id., 29 - 30), though he had experienced trauma related anxiety from the accident and the emergence of "a major depressive event following this". The entry also recorded that "Adam tolerated TMS well" and that "Several issues on the ward tested him and he responded without his usual angry impulse". 5. Then on 22 July 2021, Dr McDornan reported that he had "descended into a nasty depression", was "highly sensitive and focused in a ruminative way on the conduct of their 20 year-old daughter [his step-daughter]" and her personal life , being "'old testament' when it comes to codes of introduction and conduct, and he is easily offended and disrespected. Worryingly, he has become suicidal and had an experience of writing a will but also of going to Byron several weeks ago, at about 7:00 pm at night, and standing at the Lighthouse patio, contemplating jumping off". "He had stopped taking Dothep at his own direction some weeks previously and did not tell [his wife] Genai. He has declined a stay in Currumbin Clinic, saying he will never go back there…." In his oral evidence he said he had in fact told Genai, a senior mental health nurse, but had not told Dr McDornan at the time, although he did so when he was able to obtain an appointment. He explained his unwillingness to stay at Currumbin Clinic on the ground that his wife was working there at the time and he thought there would be a conflict of duty and interest. 6. Dr McDornan's report of 30 August 2021 stated that "He is no longer acutely suicidal, although talks in terms of a disinterest in continuing life". That feeling, however, was "balanced with plans to move with his wife Genai down south to the family property in the next years". He continued to be in pain from his workplace accident (id., 44). 7. Again, on 13 September 2021 Dr McDornan stated that "He is no longer suicidal". His condition was improving in other respects as well. He was sleeping well and his mood "[did] not go down as far". He was future oriented and was planning to go to a B&B near Stanthorpe with his wife, Genai" for her birthday (id., 43). 8. His general practitioner Dr McLaren's mental health assessment and care plan dated 22 November 2021 said that he had "had a lot of suicidal thoughts recently" arising out of issues with his step-daughter, but "No active plan" and the only thing stopping him from walking away was his partner. He did have some plans for the future (id., 86). 9. Dr McDornan's report of 23 November 2021 states that "In the past, this anger has turned onto himself and he has become suicidal". The report deals, however, mainly with his relationship with his step-daughter, aged 20. "Adam and his wife, Genai, are quite concrete in their expectations and have set ultimatums. Adam can become very angry if the family code is transgressed". But. "last week, he was able to diffuse this by going to the beach without risk in his thinking. He is going to reengage with Philippa Kelly, clinical psychologist, who can hopefully explain some of these developmental issues with his daughter" (id., 48). 10. On 17 January 2022, Dr McDornan related how the applicant and Genai had an altercation with her daughter (his step-daughter) over her personal life and her decisions around living arrangements. "The tension led to Adam slapping this young woman at the dinner table one evening, leading to Genai kicking him out of home and an acute suicidal period. He was able to divert to a voluntary stay at Robina Public for six days where Epilim was begun". His mood had repaired on Epilim: "He is less reactive and irritable although there are residual depressive moods and this is coloured by his quite concrete moral views of others and their conduct" (id., 50).

[7]

The Mental Health Risk Assessment 14 January 2023

Besides the reports from medical records listed above, the respondent relies on the applicant's mental health risk assessment prepared by Dr McDornan (exhibit R1, pp 40 - 44), drawing attention to a number of passages, including the following, in response to a question about how his impairment would affect his fitness to possess firearms: "The nature of his clinical depression is likely episodic. He when clinically depressed would be subjected to not just a lowered mood and anhedonia [inability to feel pleasure] but an array of depressive cognitions including a sense of futility. The episodic nature of depression cannot be predicted although a recent period of euthymia for twelve months is a very good prognostic sign. If he were to become clinically depressed in the future his risk profile regarding firearms licensing may change. I have discussed this with both him and his wife".
In relation to the testing he had used, Dr McDornan wrote that "At our last clinical contact prior to Christmas 2022 his MADRS score revealed a score of 6 which is well below any meaningful clinical depressive phenomena".
Again, in relation to suicidal ideation, he wrote "Mr Cook does not hold suicidal thinking at all. He has in the past when he has been clinically depressed although he is able to communicate this and undertakes an open dialogue around risk with myself and his wife. A deal of this thinking has been about themes of nonexistence rather than active suicidal planning".
On the possibility of relapse, Dr McDornan wrote: "There is an inherent risk in being diagnosed with clinical depression that Mr Cook may become depressed in the future [which] would interrupt the continuous responsible control over firearms. This [is] inherent in his diagnosis. This position is balanced with the notion that he has responded clearly to treatment and is not just treated with response but to remission at present. It is possible, as is the case with anyone with clinical depression, that Mr Cook will relapse. I have been through this with his wife and himself around the early signs of clinical depression and the need to not use firearms in these settings".
The assessment concluded, "I do not believe Mr Cook's conditional impairment puts the public at risk if he were to have possession of a firearm. He has never talked about hurting other people in terms of retribution. He has spoken of a strict moral code he holds around family behaviours and interventions although these are expectations of conduct rather than anything else".
The respondent also had some criticisms of the report itself, including that it was based largely on self-reporting and provided no details about the nature of medication and dosage. It stated that the applicant had never deviated from a course of medication, which was not consistent with his statement on 22 July 2021 that the applicant had stopped taking Dothep without telling his wife. It did not discuss the applicant's diagnosis, or past diagnosis, of PTSD and whether or not that had an impact on the risk profile. There were some positive points in the assessment, including that there had been no problems for 12 months, but the applicant's condition was episodic and there remained the possibility of relapse.

[8]

Mental health - evaluation

The respondent's position is that the applicant has a lengthy history of depression, suicidal ideation and anxiety and if he were to suffer a further episode of depression, there was a material risk that he would not be able to exercise continuous and responsible control over his firearms. His mental health condition was largely contingent on episodes in his life that could not be predicted with any level of certainty. He had in the past relapsed and experienced suicidal ideation as recently as January 2022.
The medical health records show that the applicant has broadly experienced four significant bouts of depression requiring professional help, three of which included suicidal thoughts: 1. In 2009, following the breakup of his first marriage; admitted on suicide watch; 2. In 2019 - 2020 for PTSD following an accident at work; not suicidal or psychotic; 3. In mid-2021 following stresses over the behaviour of his step-daughter; suicidal thoughts, ideation at Cape Byron, but becoming able to "diffuse" such thoughts and has plans for the future; 4. In January 2022, acute suicidal thoughts arising from conduct of his step-daughter, but he "diverted" to Robina Public Hospital and his mood improved.
None of these episodes involved any attempt at suicide or any planning or intention or any thoughts of harming others. None of his admissions for hospital mental care was involuntary. In each case it was the applicant himself who saw the signs and sought help. He responded well to treatment and has not taken psychotropic medication since January 2023.
In his risk assessment dated 14 January 2023, Dr McDornan stated that the applicant's depression was "episodic" but that the previous 12 months of euthymia (positive mood) was a good prognostic sign. In his evaluation before Christmas 2022 his score was well below that for clinical depression and he was not suicidal at all. He was able to discuss his psychological stresses with his wife and with his doctor.
While relapse was always a possibility with depression, he responded well to treatment to the extent of not merely alleviating acute symptoms but going into remission. Most importantly, Dr McDornan's conclusion is that "I do not believe that Mr Cook's conditional impairment puts the public at risk if he were to have possession of a firearm. He has never talked about hurting other people in terms of retribution….He has been able to negotiate not just the period of being unwell historically but also stressors in the workplace and interpersonally with a good level of judgment and self-regulation"(exhibit R1,p 57).
The respondent challenged Dr McDornan's generally favourable conclusions on the ground that they stem largely from self-reporting by the applicant. The doctor has, however, been treating the applicant for upwards of four years and has thus had ample opportunity to test the applicant's self-reports against observed behaviour and attitudes. Dr McDornan was not required for cross-examination.
The respondent also pointed out that the assessment said little about the earlier diagnosis of PTSD or the effect it might have on the applicant's safe control of firearms. Viewing the medical records and the assessment as a whole, it would appear that Dr McDornan considered the bout of PTSD caused by the workplace accident to be no longer relevant to the applicant's safety profile. In addition, it may be noted that the period of PTSD resulting from the workplace accident did not involve any suicidal thoughts or ideation. It was also submitted that no account was taken of the applicant's ceasing one of his medications without discussing it with his wife or doctor. The applicant's unchallenged evidence at the hearing, however, was that he had discussed it with his wife (who is a senior psychiatric nurse) and did mention it to Dr McDornan as soon as he was able to make an appointment.
In AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [22], Hennessy DP pointed out that "Not every suicide attempt will justify the revocation of the person's firearms licence. The Tribunal must assess the likelihood that AML will attempt suicide or self-harm again and, if that happens, the likelihood that a firearm will be used". In that case there had been an actual suicide attempt and a long history of clinical depression. The decision revoking AML's firearms licence was, however, set aside. As the present case involves no suicide attempt or self-harm, and no suggestion of a firearm in that context, the authority of AML weighs in favour of the applicant's case.
One branch of the respondent's case was that licence refusal was mandatory under s 11(4)(c), the "unsound mind" ground. To rise to that standard an applicant's mental condition must at least have the potential to put public safety at risk if the person has possession or use of firearms. Suicide attempts are relevant in that assessment but not conclusive. A finding of unsoundness of mind would require recent expert evidence to that effect (Cross v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 26, [46] - [47], [54] - a decision of mine but as far as I know it has not been criticized).
Section 11(4)(c) was formally raised in the written submissions (as was s 11(3)(a)), but the point was not developed in argument and the respondent's case rested chiefly on the public interest.

[9]

Public interest

The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". The Appeal Panel supported that formulation in Elley v Commissioner of Police, New South Wales Police Force [2023] NSWCATAP 237, [48]. Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
On the public interest issue, the respondent relied on the evidence and submissions set out above in relation to mental health, contending that it was apparent that the public interest weighed heavily against the applicant's licence application in view of the evidence of his mental health. It was apparent that the applicant's possession and use of firearms would be entirely at odds with public protection, public safety and public confidence in firearms licensing.
The respondent sought to distinguish Aloschi because the applicant's decision to cease taking one of his medications on his own initiative showed that his condition was not being managed effectively, but on his unchallenged evidence he did inform his wife and informed his doctor as soon as he could obtain an appointment. The respondent also submitted that in Rose, there had been a three-year period free of suicidal ideation. In the present case the equivalent period is approaching two years, but more significantly, in Rose there had been an actual suicide attempt, whereas that is not the case here.
The applicant is a man aged 50 who has no non-traffic criminal convictions (exhibit R1, pp 6 - 9). He has some traffic violations, but the respondent did not submit that they merited significant weight in the resolution of the issues. He has no history of violence or of threatening violence and according to the medical record has never had thoughts of harming others. He has never been the subject of any police event reports for any reason.
The several times he has received in-patient mental health treatment have all been on his own volition and he has never been involuntarily committed. Each incident, he states, was a cry for help and on each occasion he sought professional help. He has ceased taking psychotropic medication without incident since January 2023 and has learned skills that have already enabled him to "diffuse" incipient incidents. He is now willing to discuss and doctor any mental stressors he may be experiencing and understands the early signs of clinical depression and the need not to utilize firearms in those settings.
In a treatment note dated 28 October 2022 Dr McDornan had written that "I will support his reapplication with the Firearms Registry as there has been a protracted period of euthymia for Adam" (exhibit R2, p 52). In the risk assessment dated 14 January 2923 he states categorically that "I do not believe that Mr Cook's conditional impairment puts the public at risk if he were to have possession of a firearm".
If he were to experience a relapse in the future, he now has the tools, and the support of his wife, to help him deal with any adverse signs that may appear. The possibility that a relapse resulting from some future episode would create an increased risk to public safety may now be viewed as theoretical rather than real and appreciable.
The applicant, formerly a plant operator, has taken over the family farm on the North Coast and contends that he needs a firearm as a tool of trade to control ferals and other vermin and to put down sick or injured animals where necessary. It is in the public interest for law-abiding farmers and graziers to have access to long arms for the protection of the environment and of primary industry.
On the preponderance of the evidence, the applicant's mental condition does not present any real or appreciable risk to public safety, as that phrase is understood in Webb and Elley, should he be granted a firearms licence, and I so find. The decision under review should be set aside and a licence issued.

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