Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013
Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 94 ALR 11
Barlow v Commissioner of Police, New South Wales Police Service (CoP) [2003] NSWADT 254
Briginshaw v Briginshaw (1938) 60 CLR 316
Source
Original judgment source is linked above.
Catchwords
Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 94 ALR 11Barlow v Commissioner of Police, New South Wales Police Service (CoP) [2003] NSWADT 254Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Constantin v CoP [2013] NSWADTAP 16Cusumano v CoP [2001] NSWADT 50Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Hoffman v CoP [2003] NSWADT 89Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127Kavalieratos v CoP [2014] NSWCATAD 117Laing v CoP [2017] NSWCATAD 315Martin v CoP [2017] NSWCATAD 97Masterson v CoP [2017] NSWCATAP 206McDonald v Director-General, Social Security [1984] FCA 57, (1984) 1 FCR 354Nakad v CoP [2014] NSWCATAP 10Smith v CoP and New South Wales Fair Trading [2014] NSWCATAD 184Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Sweet v CoP [2000] NSWADT 185
Judgment (10 paragraphs)
[1]
reasons for decision
The applicant Mr Anthony M Cross on 20 September 2017 applied to this tribunal for review of a decision by the respondent dated 6 September 2017 to refuse the applicant's application for a firearms licence.
The applicant had lodged the application on 8 March 2017 for a category ABH firearms licence for the reason of sport and target shooting for category ABH, and recreational hunting and vermin control for category AB. Between July 1996 and October 1999, he had held a New South Wales shooter licence issued under the previous legislation. In the personal history section of his licence application the applicant answered "No" to the question "Have you in New South Wales or elsewhere ever attempted suicide or self-harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?"
On 24 April 2017, the respondent served the applicant with a notice of refusal in respect of his licence application. The applicant applied to the respondent for an internal review of the refusal decision on 5 May 2017, signing the review request as "General Joe Wilson xxxx". The respondent undertook an internal review and affirmed the decision on 6 September 2017. The applicant's application to this tribunal for review of that decision was dated 14 September 2017 and was lodged on 20 September. The respondent's reasons for decision include descriptions of numerous incidents involving the applicant, as well as statements such as his claim to be on friendly terms with the late Queen Victoria. Further details of these matters are given below
The respondent's initial decision to refuse the application, and the decision on review to affirm it, were both based on public interest grounds under s 11(7) of the Firearms Act 1996. For the purposes of this review, however, the respondent has added further grounds, as he is entitled to do. They are s 11(3)(a) (not a fit and proper person) and s 11(4)(c) (unsound mind).
[2]
Applicable legislation
Among the objects of the Firearms Act is the provision that strict requirements must be satisfied in relation to the licensing of firearms and the acquisition and supply of firearms: s 3(2)(d). It is an offence under s 7A of the Act to possess or use a firearm unless the person is authorized to do so by a licence or permit. A category A or B licence authorizes the licensee to possess or use the firearm to which the licence applies, but only for the purposes established by the licensee as being the genuine reason for possessing or using it: s 8(1).
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 the firearm without danger to public safety or to the peace: s 11(3)(a). Further, 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: s 11(4)(c). Under s 11(7), the Commissioner has a discretion to refuse to issue a licence if the Commissioner considers that issuing it would be contrary to the public interest.
The issue in this application is thus threefold:
whether the applicant is a fit and proper person to hold a firearms licence;
whether or not there is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of being of unsound mind; or
whether or not the issuing of a licence to him would be contrary to the public interest; or any two or more of the above sub-issues.
[3]
The evidence
The parties called no oral evidence but relied on the s 58 documents (exhibit R1) and other documentary material, as well as submissions, which in the applicant's case were made by telephone.
[4]
Applicant's submissions
The applicant conceded that he had suffered mental health issues and had differences with the police. His said his hands had been cut off by police when he was five years old but were sewn back on and he has hands today. His story about his hands was true, and was not part of his illness, indeed he still feels pain today. He had been through a great deal as a serviceman, suffering battle fatigue. He had served in Romania in 1989 at the age of 13 as well as in Serbia, China and Java. In China and Java he had served with the SAS, and had been aged 10 when he had gone to China. The police disputed his rank as a general but he had a service record at that rank. He had also flown F/A-18s as a navigator.
He had also been involved, he said, with security work, guarding meetings such as APEC, G20, CHOGM and the visit of Pope Benedict. He was not at liberty to explain how he carried out those duties, but was very good at what he did. His full title was General Joe Wilson, a four-star (i.e. full) general. He held his rank from the United States Navy. He had disarmed 1500 nuclear weapons in Pyongyang for the United Nations, 58 in Tehran and 2500 in Russia. Osama bin Laden had held 500 nuclear weapons, his idea being that he would provoke the western countries into bombing them and thereby cause worldwide contamination. He had located Osama bin Laden and had also found the mastermind of the Bali bombing in Java. He had "cooked" the Serbian dictator Slobodan Milosevic in a tank and had killed Fidel Castro and Colonel Gaddafi. He had a good record as a general and had accounted for nine dictators.
He was indeed Adolf Hitler's son, as he had claimed, and Hitler was not dead. One of his best friends was Robert Gates, who had not been happy about his mission to disarm Bin Laden's weapons on behalf of the United Nations.
Acknowledging that his mental illness had been documented, he stated that Winston Churchill had been schizophrenic. He had wanted his licence application to be fast-tracked and to include a permit to carry a pistol, as he was engaged in covert operations. He could not accept that a security guard could give evidence to the police about his conduct. He was covert and held a high rank, having looked after the most important people in the world. The security guard who had described the events at the Dymock's bookstore was not a professional. If he did not succeed in obtaining a licence, he still wanted justice for the wrong he had suffered with his hands.
[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 to issue a licence or permit: s 75(1)(a). 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 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].
[6]
Fit and proper person
One of the grounds on which the application is opposed is that the applicant is not a fit and proper person to hold a licence. The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But there purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion [my emphasis].
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30]. In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22].
[7]
Reasonable cause to believe: unsound mind
The second ground relied on by the respondent applies if the Commissioner "has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms" because of any previous suicide attempt (s 11(4)(b) or because of the applicant's "being of unsound mind" (s 11(4)(c)).
Emmett J considered the meaning of "reasonable cause to believe" in Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013. His Honour said that the words "are not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant [in that case, an applicant for preliminary discovery] to show objectively that there is reasonable cause for the relevant belief. It is not necessary to demonstrate whether or not the applicant has the belief" (at [10]).
While the term "unsound mind" is not defined in the Act, the tribunal explained the meaning of the phrase in the context of applying s 11(4)(c) of the Act in Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 185:
22 In interpreting the phrase "unsound mind" the ordinary grammatical meaning of the phrase must be applied. "Unsound" is defined in the Macquarie Dictionary, 3rd edition, The Macquarie Library, as "not sound; diseased, as the body or mind."
23 In Herbohn v NZI Life Ltd [1998] QSC 122 (12 June 1998) WC Lee J gives a useful exposition of the meaning of "unsound mind." His Honour said that:
Mayo J. in Pointon v. Walkley [1951] S.A.S.R. 121 at 125, when concerned with the meaning of "unsound mind" for the purposes of a limitation statute . . . said:-
"Unsound' is the antithesis of Sound'. `Sound', when used in connection with body or mind, denotes the presence of perfect health or, putting it another way, the absence of all defects other than those that are trivial. A sound person is one without the sign of disease, malady or unhealthy abnormality.
When seeking to ascertain the meaning of the words "unsound mind" in a statute, they must be construed in relation to the subject matter with which the statute is dealing and their place within it: Kirby v. Leather [1965] 2 Q.B. 367 per Lord Denning M.R. at 383 where the Master of the Rolls said that for the purposes of that statute, a person is of unsound mind if he is incapable of managing his affairs as a reasonable man would do; King v. Coupland. So also with the expression "mental condition" which, according to Slattery J. in Kotulski v. Attard (1981) 1 N.S.W.L.R. 115 at 118 was "meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise will power to control physical acts in accordance with rational judgment".
[8]
Public interest
Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of a licence would be contrary to the public interest. The "public interest" 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. In an often-quoted passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, [130].
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML in 2013 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because Her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" (at [7]).
[9]
Orders
1. Decision under review affirmed.
2. Pursuant to ss 64(1)(c) and (d) of the CAT Act, the transcript and recording of the confidential hearing, confidential exhibit CR2 and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant.
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.Registrar
[10]
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: 30 January 2018
Parties
Applicant/Plaintiff:
Cross
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
The applicant in this case has three convictions for firearms offences. On 7 October 2003, he was convicted at Moss Vale Local Court of possession of an unauthorized firearm, possession of an unregistered firearm and failure to keep a firearm safely. He was required to enter into a good behaviour bond for 12 months under s 9 of the Crimes (Sentencing Procedures) Act 1999 for each offence.
He has a record of acts or threats of violence that have led to his being "scheduled" under the Mental Health Act 2007 rather than convicted on criminal charges. (The term "scheduled" derives from the earlier mental health legislation in which the powers of involuntary evaluation and detention were contained in a schedule; under the present legislation those powers are in chapter 3, part 2, division 2 rather than in a schedule, but the term "scheduled" remains in use). A number of the incidents described in his record in exhibit R1 arose under the previous legislation.
Thus, on 6 August 2004 he attended a meeting with the Mobile Treatment Team as part of ongoing monitoring of his mental state and treatment by way of injections. At that meeting he became agitated at the prospect that the assessment might be extended and told the staff that if the period were extended, he would shoot them or shoot himself. He was then taken by police to the psychiatric ward at Shellharbour Hospital, in the process telling police that if he were taken there he would shoot himself in the head. He was nevertheless taken there and admitted without incident (event E 21792440).
On 25 January 2007, he made a threatening telephone call to a sales assistant in Dymock's bookstore, Wollongong. He had told the assistant he had written numerous books and wished to know how he could claim his royalties. When staff could not assist he became angry, stating that he would return when the store closed and kill them. When police were called he told them he was General Joe Jackson and was part of numerous covert operations in the army, having been to Iraq at least 27 times. Following evaluation by a psychiatric nurse at Wollongong Hospital emergency department, he was escorted to Shellharbour Hospital and scheduled (event E 29491504).
An incident involving perhaps a potential, but not explicit, threat occurred on 29 September 2008 when police were summoned to his house where he was found to be in possession of two knives, which he placed on the ground when he saw police. Police found him to be highly irrational, stating that he was protecting Australia from an insurgency. He said his name was King Arthur V, that his father was Saddam Hussein and that his mother was Queen Elizabeth. He was taken to Wollongong Hospital and later scheduled. Later in the history of the case he denied saying that his father was Saddam Hussein; at the tribunal hearing he said in his submissions that his father was actually Adolf Hitler (event E 35448029).
A number of other incidents set out in exhibit R1 bear on the applicant's fitness and propriety. On 9 March 1999 he stole a motor vehicle, a new white Lexus, from his father's business following an altercation with his father who had refused to lend him a car because of his mental illness and his having been observed driving in a dangerous manner. Apparently because of communications difficulties, no further police action was taken (event E 6653918). Ten days later, on 19 March 1999, police were called to the business at his father's request. He was said to be suffering from schizopheriform disorder, an illness similar to schizophrenia. Police said the applicant appeared disoriented and delusional. He stated he was going to take his father's Jaguar and was speaking in a disjointed manner. He was taken to Shellharbour Hospital and scheduled (event E 6453333).
On 31 August 1999 he became involved in a heated argument with his father while driving home in the family car. As a result of the argument, when the two persons got out of the vehicle, the applicant began to kick and punch his father, who then physically restrained him and called police. His father said that he had been diagnosed with disruptive ADD and he was inclined to think he might also be taking some type of illicit drug. The applicant was taken to Shellharbour Hospital and scheduled (event E 7755128).
On 9 September 2000, the applicant's father told Wollongong police that the applicant had just smashed all the glass on his (Mr Cross Snr's) new motor vehicle and had left it on the street. Mr Ron Cross was concerned that his son was off his medication and had become violent. He was taken to Shellharbour psychiatric ward and scheduled (E 10217119). Another incident of disruptive conduct at his father's business occurred on 22 September 2000 and led to the applicant's again being conveyed to Shellharbour Hospital (event E 10723539). On 6 December 2000 the applicant assaulted a cleaner at the premises where he (Anthony Cross) was working at the time. The cleaner did not wish any further action to be taken on the matter (event E 10161376).
The applicant engaged in threatening behaviour with his sister Renee on 17 January 2001 at her place of work. She had asked him to leave the location, as he became aggressive after falling through the roof and then punching a hole in the wall. He then became further enraged and began abusing Renee, then stormed out of the location taking one of the company cars. She said he had attended at the location many times and was beginning to frighten her and the other staff members. Police applied for an apprehended domestic violence order (ADVO) (event E 11439753).
An unusually bizarre incident occurred on 28 May 2002 when Wollongong police received a telephone report saying that a man driving a vehicle was chasing cars around the industrial estate. His vehicle had no wheels on it and a large quantity of sparks were coming from it. When police arrived they saw that the car's engine was on fire. After they extricated the applicant from it, the vehicle exploded. The vehicle belonged to the business owned by the applicant's father and had been taken by the applicant. The applicant was taken to Wollongong Hospital for assessment and then then conveyed to Shellharbour, where he was admitted. Psychiatric staff informed police that the applicant was in urgent need of medical attention and became extremely violent when not medicated. No criminal charges were brought as his father was unwilling to make a formal complaint (event E 14934005).
Police stopped the applicant for speeding on the Hume Highway on 14 April 2007. He claimed to be a "General Wilson" on a "covert mission", making further references to being "covert" and working for the United States Navy, adding that he had been to the wars in Iraq and Afghanistan. A police search located two kitchen knives with blades approximately 13cm long, a quantity of medications and a "bong" of the kind used in drug-taking. When they asked him about his use of cannabis, he replied "Being covert I'm allowed to use drugs" and admitted using cannabis the previous evening. He was conveyed to Goulburn police station (event E 29688020).
The Mental Health Team called police on 25 November 2005 for assistance with the applicant who was becoming aggressive with them. When police arrived he began to rage about being in Iraq and killing hundreds and thousands of Iraqis. He was a trained killer and knew a lot of people who could vouch for him. He said he had served in 18 wars and was a personal friend of George Bush and the late Queen Victoria. Police took him to Shellharbour Hospital as instructed by the Mental Health Team (event E 25820777).
A mental health nurse with the Community Mental Health Team called police on 1 July 2005 stating that the applicant suffered from bipolar disorder and had not taken his medication for about a month. He told police that numerous persons had been shot and killed in the street outside his house, and that he had witnessed the incidents. He also claimed he was a member of NATO armed forces, as a fighter pilot, and had his bags packed ready for a call to fight in the Balkans. When searched he was found to have a knife in a leather scabbard hidden in the small of his back. He was later scheduled (event E 24585850).
Between 19 September 2003 and 18 September 2005, he was the subject of apprehended violence orders for the protection of three people, Ronald Cross, Kathryn Cross and Roni Cross (events E 18470733 and E20807433).
On 24 November 2016, the firearms registry received a letter from him asking that his licence application be fast-tracked (although he did not actually apply for a licence until the following year). He signed as "General Joe Wilson xxxx" and identified himself as a "fighter pilot/airborne/navigator", belonging to the US Army, US Navy, NATO, SAS, United Nations and International Nuclear Program. In his internal review application received on 5 May 2017, he again insisted that he was General Joe Wilson and, among other things, Adolf Hitler's son. He appears highly protective of his alleged identity as a general and at the hearing twice said to the tribunal, in a warning tone, "Don't challenge me" in relation to his general rank. In his submissions at the hearing he reiterated, and indeed elaborated upon, his claims of war service and further stated that he had hunted down, and impliedly killed, Slobodan Milosevic, Osama bin Laden, Fidel Castro and Colonel Gaddafi.
In all, the applicant has been admitted to hospital for assessment or scheduling under the Mental Health Act 2007 on 15 occasions since 1998. He told the psychologist Ms Sinclair in October 2017 that he had been seeing a psychiatrist, Dr Heiner, since the age of 19 years and that he had been diagnosed inter alia with ADHD, bipolar disorder and schizophrenia, having been admitted to Shellharbour Hospital many times. He said he was currently taking the antipsychotic medication Clozapine, which was prescribed by Dr Heiner. Yet in his firearms licence application dated 1 February 2017, he answered "No" to the question "Have you ever attempted suicide or self harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?". That was untrue, as he was (and presumably still is) under the care of Dr Heiner, who was prescribing antipsychotic medication for him.
The evidence shows a history of driving offences dating back to 1996, including using an unserviceable vehicle on the road, being an unlicensed driver, driving while disqualified, reckless driving, driving under the influence of alcohol or a drug (2 charges), negligent driving, speeding (several offences), displaying number plates calculated to deceive, crossing double lines and failure to give way at an intersection. His licence was suspended in 1999 and in September 2007 he was sent an habitual offence warning letter.
His firearms offences, his record of violence and threats of violence and self-harm (including with firearms), his poor driving record, including driving a car without wheels, causing it to catch fire and explode, and his false statement in his licence application would in themselves justify refusing the applicant a firearms licence. In addition there are his unsupported, outlandish or impossible statements about his parentage and life experience, many of them repeated at the hearing, such as having his hands cut off by police when he was 5 (the hands being sewn back on later), serving in 18 wars, being the son of Adolf Hitler and Queen Elizabeth and being on friendly terms with the late Queen Victoria. Whether subjectively he believes them to be true or not, they reflect, at best, highly disordered judgment that would lead to the conclusion that he cannot be relied upon to abide by the legislation and its requirements as regards safety and safe storage. I therefore find that he is not a fit and proper person to be granted such a licence.
In Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315, [57], I observed that Sweet's adoption of the standard "incapable of managing his affairs as a reasonable man would do" appears to set a rather high bar, suggesting a mental condition causing a far-reaching extent of mental incapacitation.
In Sweet the tribunal went on to say that the term "unsound mind" must be interpreted in light of the Act's overriding principle as set out in s 3(1)(a) of firearms possession and use being conditional on the need to ensure public safety. "To be of 'unsound mind' a person's mental condition must at least have the potential to put public safety at risk if that person has the possession or use of a firearm" (at [26] - [27]).
In this context suicide attempts are relevant, though not conclusive. As Hennessy DP pointed out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [22], "Not every suicide attempt will justify the revocation of the person's firearms licence. The Tribunal must assess the likelihood that [the applicant] will attempt suicide or self-harm again and, if that happens, the likelihood that a firearm will be used. There is no suggestion that [the applicant] would attempt to harm others".
Her Honour concluded that the applicant's previous attempt did not give rise to reasonable cause to believe that the applicant would not personally exercise continuous and responsible control over firearms. The test, in context, was an objective one (State of New South Wales v Taylor [2001] HCA 15, [10]), her Honour said, setting aside the revocation of the applicant's license.
There is no evidence of this applicant's ever having attempted suicide, and in his interview with the psychologist Ms Sinclair he denied any suicidal ideation, stating that he respects his body too much to consider suicide or self-harm. But he has more than once threatened suicide, and murder as well. While not as weighty as an attempt, such evidence must be relevant to the issue, especially given the psychiatric advice mentioned above that he becomes extremely violent when not on his medication.
Further, since 1998 he has appeared to be in need of psychiatric treatment, or admitted to hospital for assessment or scheduling, or both, on 15 occasions. Ms Sinclair's psychological report dated 10 October 2017, prepared at the applicant's request, notes inter alia that he informed her that has been seeing a psychiatrist, Dr Heiner, since he was 19 and has been diagnosed with ADHD, bipolar disorder and schizophrenia, and that he is currently taking an antipsychotic medication, Clozapine, prescribed by Dr Heiner.
[Not for publication]
[Not for publication]
Ms Sinclair's report is descriptive, but does not take the evidence a great deal further on the question of soundness of mind and its relation to public safety in the present case, and contains no particulars of diagnosis. While the applicant has freely admitted that he suffers from a mental disability, and specifically ADHD, bipolar disorder and schizophrenia, his propensity to make unsupported assertions, as noted above, means that it would be imprudent to accept his unconfirmed admissions as factual. As was noted in Sweet, a tribunal finding that a person is of unsound mind must negotiate quite a high bar.
The evidence of the applicant's frequent evaluations and scheduling under the Mental Health Act, as well inter alia as his documented threats of murder and suicide, is strongly suggestive. At the same time, however, the fact that the mental health authorities have repeatedly released him to live in the community unsupervised suggests a professional belief that he is not in general a danger to himself or others.
In my view a finding of unsoundness of mind will normally require recent expert evidence (cf. Laing, [56], [60]). In the absence of evidence of a recent psychiatric or psychological evaluation meeting the requirements of an expert certificate and focusing on the question of public safety, I do not think the evidence as it stands meets the standard required for a finding of unsound mind, and I so find.
Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, 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] 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". 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 a balanced view of the evidence in this case, the tribunal cannot be satisfied that there is no real or appreciable risk in the applicant possessing or using firearms. He has repeatedly been scheduled for mental health issues and in August 2004 threatened to shoot medical staff and himself. In January 2007 he made threats to kill the staff at Dymock's bookstore. He has made numerous far-fetched and unsupported claims about his involvement in various Australian, United States and international armed forces in several war zones, remaining adamant at the hearing itself that he holds the rank of full general.
Looking at the applicant's conduct as a whole, including potential future conduct, the tribunal cannot exclude the possibility of a real or appreciable risk to public safety in his access to firearms. It is therefore not in the public interest that he should be issued with a firearms licence, and I so find. The decision under review must therefore be affirmed.