Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254
Briginshaw v Briginshaw (1938) 60 CLR 316
Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Source
Original judgment source is linked above.
Catchwords
Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Force [2001] NSWADT 50Director-General, Transport New South Wales
v AIC (GD) [2011] NSWADTAP 65
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Ex parte Tziniolis (1966) SR (NSW) Emerald 448
Health Care Complaints Commission v Litchfield [1997] NSWSC 297
Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Huckel v Commissioner of Police, New South Wales Police Force [2008] NSWADT 347
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117
Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
Monjed v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 27
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184
Statamelatos v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 156
Sterjovski v Director-General, Department of Transport [2002] NSWAdt 10
Judgment (8 paragraphs)
[1]
reasons for decision
The applicant Mr Samuel John Archibald Crough applied to this tribunal on 23 June 2022 for review of a decision by the respondent Commissioner to revoke his category AB firearms licence on 30 May 2022.
The applicant had been issued with a category AB licence on 12 May 2017, to expire on 25 May 2022, which was suspended on 18 August 2020 and revoked on 8 June 2021. The revocation letter pointed out that the applicant had been the defendant in an interim apprehended violence order (IAVO) which resulted in the suspension. The IAVO was withdrawn and dismissed on 8 April 2021.
Information held by police had indicated that on 18 April 2011 police were called to an address in Tamworth as the applicant was threatening self-harm. On 29 December 2016 the Firearms Registry asked him to provide a medical assessment in order to assess his ability to hold a licence. A report dated 10 February 2017 from a psychologist, Ms Amanda Jeffery was received and deemed favourable. As was noted above, his licence was issued on 12 May 2017.
On 8 October 2017 he was taken into custody in connexion with a charge of behaving in an offensive manner in or near a public place. While in custody he had admitted to frequent instances of suicidal ideation, as well as depression and ADHD.
The applicant applied for an internal review of the revocation on 4 July 2021, which on 30 May 2022 affirmed the revocation decision on public interest grounds. The review noted that concerns had been raised over his ability to maintain continuous and responsible control over firearms by reason of his psychological welfare, taking into account a psychologist's report from Mr Jon Dormand, who had recommended restoration of his licence but only subject to certain conditions which the respondent considered to be unenforceable.
[2]
Applicable legislation
Section 11(3)(a) of the Firearms Act prescribes that a firearms 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 24(2)(c) states that a licence may be revoked if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence.
Section 24(2)(d) provides that a licence may be revoked for any other reason prescribed by the regulations. Clause 20 of the Regulation states that a licence may be revoked if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
The issues in this application are therefore whether the applicant is a fit and proper person to hold a firearms licence and whether it would be contrary to the public interest for him to do so.
[3]
The evidence
The respondent called no oral evidence but instead relied on documentary material, including the s 58 documents (exhibit R1), and on cross-examination of the applicant.
The applicant tendered a written undated statement (part exhibit A1) in which he averred that he is grateful for all the time and effort the tribunal and lawyers have spent on the case and is aware that they are doing this for the safety of the public and for his own safety.
The events documented in the review were mistakes made by a younger, foolish and completely different version of himself. He has now been in a happy, steady relationship for over two years. He has set up a social meet up Instagram page with his partner for people to meet for sunrises, hikes, picnics and barbecues and to chat about what is going on in their lives and to create a community for people to feel comfortable in.
His mental health has never been better, he looks after himself and others and is focusing on the future and saving for a home. Since getting into the relationship with his partner, he has transformed into a different person. She has been an extremely good influence on him and as a nurse she helped him focus on his physical and mental health. He has taken up skiing, travelled to six different countries this year, started yoga and meditation and his values and goals have completely changed.
He is not the same person as he was when he was younger, in fact the comments and notes on the documents received by the lawyers are now unrecognizable to him. In meditation they discuss self-acceptance, and he has learned that he needs to accept the things he has done in the past to move on with his future and become the person he wants to be.
Unfortunately, this gun licence revocation is holding him back and not allowing him to move on from that phase of his life. He understands and accepts if the respondent or the tribunal do not wish to reinstate his licence, and would appreciate if time would be taken to look away from the person he was to see the person he has become.
In oral evidence at the hearing the applicant adopted exhibit A1 and added that the provisional AVO had not proceeded because he got in before she (the complainant) did. He had got the police involved, explaining to them that he was being harassed and wanted her to be told to back off. At the AVO hearing proceedings he had a lawyer who discussed the matter with her and ascertained that she only wanted a written apology, which he gave. The police withdrew the matter on the ground of a lack of evidence. That was over two years ago.
[4]
Applicant's submissions
Referring to the respondent's argument that he had produced insufficient evidence of his mental health position, the applicant said that Mr Dormand had wanted to see confirmation of the ADHD diagnosis, but after carrying out the assessment he had said that his childhood diagnosis would still stand.
When Mr Dormand had written that the applicant was "unsure of what he needs to do to get his firearms licence reinstated" (part exhibit A1), it had been the result of his lack of maturity. He had obtained the Far West evaluation but had been unaware that he needed to give Mr Dormand the report about him as a child. He was unsure of what else needed to be done because the form had been sent in. Any conditions imposed on his licence could be reviewed if there was no incident. The last incident was the interim AVO.
When he had been questioned about depression, he had given silly answers that were not entirely true. He did say that he had had depression and medication but it was not so at the time. Mr Dormand had said he was not depressed and had a good state of mind.
Referring to the text message dated 10 December 2019 (exhibit R3, p 6) in which he had written, "My depression is on breaking point as it is I took days of work last week because I can't cope anymore this has topped it off", he said his statements about depression were not entirely true. He had seen a doctor about preparing a health care plan but could not obtain a specialist appointment as there was a long waiting list.
[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 revocation of a licence or permit: s 75(1)(c). 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]
The public interest
The first ground relied on by the respondent in support of licence revocation is that it would be contrary to the public interest for the applicant continue to hold the licence. 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] 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].
[7]
Fit and proper person
The second ground on which the respondent's case was based was that the applicant is not a fit and proper person to hold a licence. Section 24(2)(c) provides that a licence may be revoked if "the Commissioner is of the opinion that the applicant is no longer a fit and proper person and can be trusted 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 their 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.
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].
[8]
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: 14 December 2022
Parties
Applicant/Plaintiff:
Crough
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
He acknowledged that when he had been drinking, he would say inappropriate things, as in the incident on 9 November 2014 at Tamworth (event report E59042386, part exhibit R2) which arose out of an argument with his then girlfriend Melissa ***** about trivial matters at the Family Hotel. Back at her apartment, the report states, "The POI [the applicant] has continued to argue with the victim before she has kicked him out of the unit locking the door behind him. The POI has then climbed over the back fence and was yelling at the victim to let him back in. The victim has told the POI that she was on the phone to police which made the POI jump back over the fence and leave the location" (at p 5). Melissa informed police that she held no fears for her safety and was planning to end the relationship.
The applicant said that he had not climbed the fence as alleged and had not been in a relationship with Melissa.
Cross-examined at the hearing by Mr Regener on behalf of the Commissioner, the applicant said he had been living and working in Sydney for about seven years. He returns to Tamworth every three weeks or so for a couple of days when work permits, as he is required to work for seven days or more at a time.
He said the apology he had given was not in respect of the two incidents described in report E75606433 (R2, p 9) and in fact he did not know what it related to. The lawyer had told him what to write, and it was only one paragraph in general terms. He acknowledged that the psychological report from Mr Dormand had been obtained for the purposes of the present proceedings. He had not been receiving any psychological or psychiatric treatment before that time.
He was then referred to the statement in Mr Dormand's letter of 16 June 2022 (exhibit R2, p 34) that "Mr Crough stated that he is unsure of what he needs to do to get his firearms licence reinstated". He said that he was unsure of what the next step would be, as he had just received an updated evaluation. He had first seen Mr Dormand in July 2021, which led to the report dated 15 July 2021 (id., 31 - 33) in which Mr Dormand had written "What is difficult to ascertain is the relevance of Mr Crough's mental health history". The witness agreed that he did not at that time have an ADHD diagnosis to hand, but his then girlfriend had obtained his earlier report and diagnosis from the Far West scheme.
He was not aware whether his girlfriend had given the report to Mr Dormand but he himself did not have it at the time of the evaluation. Mr Dormand had wanted to confirm the ADHD diagnosis, and had said that his Far West diagnosis would be sufficient. He had spoken to Mr Dormand again on 16 June 2022. The applicant had subsequently tried to get the ADHD diagnosis confirmed but he could not obtain an appointment with a specialist in order to obtain a report in time for the tribunal timetable. There could be waiting lists of 6 to 12 months.
The applicant agreed that he had been arrested in October 2017 for offensive behaviour in or near a public place and had been charged and placed on a s 10 bond for six months. He had been conveyed to Surry Hills police station. He agreed that he had been asked by police whether he had ever tried to kill himself and had replied, "Yes. I try to kill myself all the time". He was also asked whether he had a history of, or currently had, a mental illness, to which he replied, "Yes, depression and ADHD but have had no treatment/incidents in relation to depression in four years".
He explained that when he was at the Surry Hills cells he had been very drunk and had not known that his immature answers would have long-term effects for him. As regards the breakup, he had said it was the best thing that ever happened to him. He was not in a relationship at the time.
He added, however, that his depression had only been mild but he had honestly mentioned his depression to Mr Dormand. He denied that he had been depressed at the time of an acrimonious breakup in December 2019.
The applicant also wrote a letter to the Firearms Registry on 4 July 2021 (exhibit R1, annexure 6). Although the applicant did not refer to it, it should reasonably form part of his evidence. In it he states that after receiving the revocation notice on 8 June 2021, he had been away from home on holidays, preoccupied with work duties. By reason of the COVID - 19 outbreak in Sydney he had been unable to attend a mental health professional in order to get a full mental health risk assessment. He would endeavour to undergo that assessment as soon as possible as he was keen to submit his request for an internal review before the 28-day timeframe expired.
He noted the events that were mentioned in the police reports, but since then had prided himself on straightening himself out and turning his life around. The AVO was withdrawn as the accusations were false. In regard to his mental health, he had not had any mental health issues in the past few years and had been in a happy stable relationship for the past year with the regional clinical coordinator of the COVID vaccine rollout. She was happy to provide a character statement if necessary.
He wished to obtain a licence purely for recreational purposes as he had always enjoyed going hunting in the country [Tamworth] with his family. He did not wish to buy a gun at present but would like the option of holding a gun in the future to join in these family events. He understands that this statement holds little weight without the assessment from a mental health professional, but if he could be given some extra time due to the current circumstances in Sydney, he would send through the assessment as soon as possible.
The applicant also provided a reference from his current partner, Ms Rachel *****, the contents of which are outlined below.
In submitting that it would be contrary to the public interest for the applicant to continue to hold a licence, the respondent submitted that concerns have been raised on multiple occasions about his ability to maintain continuous and responsible control over firearms because of his psychological problems. Concerns were expressed in that regard when he initially applied for a licence and the respondent reviewed the record of an incident at Tamworth on 18 April 2011 (report E 45994987, exhibit R2, p 2). Police had been called in relation to the applicant's threatening self-harm following a breakup with his girlfriend of six months, Lauren *****. His mother said he had not taken the split well and had threatened to end his life. She also quoted him as saying "I want to put myself under a truck", and "I want to go to Uncle John's as he has a gun". He was conveyed to Tamworth hospital with ambulance staff for assessment pursuant to s 21 of the Mental Health Act.
In response to those concerns, the applicant was invited to provide a risk assessment report from a psychiatrist or psychologist (letter 29 December 2016), pursuant to which a report from Ms Amanda Jeffreys dated 10 February 2017 was provided. The report noted that the applicant was not at the time in treatment in relation to the 2011 incident, nor did he have any treatment requirement evident. Following the relationship breakdown in 2011 he was impacted with an adjustment disorder with depressed mood, which was also impacted by his consumption of alcohol. He was placed on antidepressant treatment for a month and attended a local psychologist twice. However, Ms Jeffreys considered that "This impairment no longer has any relevance to Mr Crough and his current functionality and therefore has no relevance on his ability to possess or use firearms" (part exhibit R1). The respondent accepted that report and a licence was issued to the applicant.
That assessment proved to be unduly optimistic, however, as only eight months later came the disorderly episode at a hotel in Sydney on 8 October 2017 (event E65754718, charge H65608917, part exhibit R1). The police fact sheet describes how at about 1:30 a.m. an altercation broke out in a bar in which the co-accused, the applicant's friend Zac *****, became involved, struggling with security guards the whole time. The applicant then began to argue with security staff who were separating him from Zac.
While the applicant was observing what was happening to Zac, the applicant dropped his drink when another patron bumped into him. He pushed the man with his right hand and a staff member approached him and pointed to the door, steering him towards it by placing a hand on his back. The applicant then addressed a security guard who was leading him away from the dance floor, whereupon the applicant pushed him away and another security guard led him towards the exit. After a further argument with a staff member, the applicant grabbed the staff member in what appeared to be an effort to push him back with force. A scuffle ensued that attracted the attention of the other security guards nearby and they rushed to assist. The applicant was taken to the ground on the footpath of King Street outside the venue. When police arrived, they observed security staff using force to restrain both Zac and the applicant on the ground outside the venue. The two were then escorted away in handcuffs.
That mêlée led to the applicant's being charged with behaving in an offensive manner in/near a public place and being placed on a s 10 bond for six months. While in custody at Surry Hills police station, he revealed a history of depression and ADHD and is quoted as saying "I try and kill myself all the time".
As Ms Jeffreys's February 2021 report stated that he had "no history" of mental health problems that would be relevant to his maintaining responsible use of firearms, it would appear that when seeking an evaluation to support his application he failed to disclose to her his full mental health history, which began when he was in kindergarten, as is noted below.
A recurring factor in his life has been his tendency to behave erratically following the breakdowns of his numerous personal relationships. His expression of suicidal intention following the 2011 breakup is one instance. Another is the domestic altercation between the applicant when intoxicated and an ex-partner in 2014 (exhibit R2, p 5) that led to his becoming argumentative, refusing to leave his ex-partner's residence even when informed that she would call the police, and after being ejected from the apartment climbing over the back fence (which he denied at the hearing) and yelling at her to let him back in. In 2020 he was the defendant in an AVO proceeding involving another ex-partner, Shauna (exhibit R2, pp 17 - 28), which he attributed to the ex-partner's seeking revenge. Those proceedings are the ones that were dismissed after his submitting a written apology, referred to above.
The applicant relies on the psychological report from Mr Jon Dormand dated 15 July 2021. Given its rather cautious and qualified tone, it is appropriate to set out the paragraphs under the heading "Assessment and Recommendations" in full:
On consideration of Mr Crough's DASS-21 results, his reported current mental health, and his presentation at assessment, it seems reasonable to conclude that Mr Crough's mental health is not currently an impairment to his decision-making capacity.
What is difficult to ascertain is the relevance of Mr Crough's reported mental health history.
While it is true, an individual can mature considerably from the age of 18 or even 24, to his current age of 28, it seems prudent, given his history, to put in place some safeguards if Mr Crough's firearms licence is to be reinstated. I believe the following conditions should be considered:
Mr Crough's ADHD diagnosis needs to be confirmed and any possible medication evaluated by a medical practitioner. Some forms of ADHD can lead to impulsive behaviours that can be managed well with appropriate medication.
It is unclear as to the degree to which alcohol affects Mr Crough's decision-making. It seems prudent that Mr Crough abstain from drinking alcohol when in the vicinity of any firearm.
It seems prudent to restrict Mr Crough's firearm use to his family property at Tamworth, and under the supervision of a nominated person, possibly a family member.
Perhaps such conditions can be reviewed and removed after a period without incident, to be determined by law, at a later date.
A year after writing his report, Mr Dormand wrote a letter dated 16 June 2022 (part exhibit A1) which included the following paragraphs:
I am writing in regard to my client, Mr Samuel Crough, whom I first assessed in July 2021 in regard to his capacity to hold a firearms licence.
I wrote in my report that with a few supports in place, there is no reason to believe that Samuel cannot responsibly use a firearm.
After a session with him today (16/06/2022), my opinion has not changed. Mr Crough stated that he is unsure of what he needs to do to get his firearms licence reinstated.
In the documents before the tribunal, there is no psychological report from the Far West scheme, although there is a report dated 30 November 2001 from the Royal Far West School (apparently at Tamworth), but it relates to special treatment he had been receiving for reading difficulties (part exhibit A1). There is a review assessment report from the Dalwood Assessment Centre at Seaforth dated 6 March 2003 which states that he was assessed on his third visit, having first been seen in July 2000 when he was in year 2, following a referral by his parents who indicated concerns with his demanding and oppositional behaviour at home and with his difficulties in acquiring basic reading and spelling skills.
The report notes that he was diagnosed with ADHD midway through his kindergarten year and was placed on Ritalin. It notes that "Following paediatric review at Royal Far West, Sam's medication had been changed to Dexamphetamine, with reported good improvements in his behaviour at home and general observed level of alertness….. Sam continues to take medication for his diagnosed ADHD and is now taking Ritalin twice daily mostly only on weekdays…. He was medicated during the assessment…." The remainder of the report is concerned with the progress he had been making with literacy skills.
The applicant tendered an undated but recent signed reference (part exhibit A1) from his current partner, Rachel *****, who writes that she is a qualified nurse working as a manager in the COVID vaccination program and has been in a relationship with the applicant for two years. They now live together at Pyrmont. She states that the applicant has always been completely honest with her and told her about his past relationships and the AVO. From her observation, she knows those allegations to be definitely false.
As a nurse who has worked with patients with mental health issues, she has no concerns that the applicant would have hurt himself or anyone around him. He unfortunately had said things in the past, but those were just words, there were no real intentions or plans to follow through.
Since being with Sam she had seen a massive change in him for the better. He had picked up great habits, had completely cut back on his drinking and now comes with her travelling, skiing, hiking and swimming. Her friends and family have welcomed him and he now surrounds himself with ambitious, accomplished, self-disciplined individuals. He is an honest, loyal and considerate man who has had a tough upbringing and has been through a lot in his relationships in the past, but he has come out the other side.
From the above evidence a number of relevant points emerge:
The applicant has a history of psychological problems dating back to his kindergarten years when he had been diagnosed with ADHD because of reading and behavioural problems. He was periodically placed on psychotropic medication for that condition.
In 2011 following a relationship breakup he threatened self-harm, was diagnosed with adjustment disorder with depressed mood and was prescribed anti-depressant medication for a month, together with psychological counselling and hospital assessment under the Mental Health Act.
After applying for a firearms licence in 2016, he was asked to obtain a risk assessment from a psychologist or psychiatrist. He received a supportive report from Ms Amanda Jeffreys dated 10 February 2017. Her report noted that "There is no history of any other issues or conditions that would be relevant to Mr Crough maintaining responsible use of firearms", which suggests that the applicant had not informed her about his earlier psychological and medication history.
Later the same year, he was charged with offensive behaviour in or near a public place and was later placed on a 6-months s 10 bond for that offence. While in custody he told police that he had a history of depression, ADHD and threatened self-harm. His explanation in this case was that he had been immature and gave silly answers, but the admissions he made at the time are consistent with the other evidence.
• He has displayed repeated episodes of extreme or irrational behaviour following relationship break-ups, including in 2011 and 2014. The pattern continued until at least 2019 when he texted Shauna saying "Shauna you've f****g destroyed me I feel like killing myself now cause of you f**k this…. My depression is on breaking point as it is I took days off work last week cause I can't cope anymore this has topped it off" (part exhibit R3). In cross-examination he said those statements were not true and he had not been depressed at the time.
He says that he has turned his life around and is a different person now from the one he used to be, and his partner of two years, Rachel, emphatically supports him in that assessment. In her February 2017 report, however, Ms Jeffreys had expressed a similar conclusion, stating inter alia that his "current function shows emotional and social maturity such that he is capable [of] managing his emotions and is happy and stable in his relationship". Later events have shown that view to be excessively optimistic.
The applicant appears not to have been fully open with Mr Dormand about his earlier psychological history, as the report states that "he reported that no treatment was ever recommended or engaged in" which, as the above evidence shows, was not true. He was periodically prescribed psychotropic medications from an early age and received multiple sessions of psychological counselling.
Noting that some forms of ADHD can lead to impulsive behaviours, Mr Dormand thought that one of the necessary safeguards if a licence were to be granted would be that his ADHD diagnosis should be confirmed and any possible medication evaluated by a medical practitioner. Mr Dormand restated those conclusions in his letter a year later. That has not been done, the applicant blaming the long waiting lists for an appointment with a specialist.
In his letter of 4 July 2021 (Exhibit R1, annexure 6) the applicant promised to obtain such an evaluation as soon as possible: "I understand that this statement holds little weight without the assessment from a mental health professional but if you can give me some extra time due to the current circumstances in Sydney I will send through the assessment as soon as possible". He explained that he needed an extension of time because of his holidays, work commitments and COVID restrictions, not because of long specialists' waiting lists.
Almost 18 months have now elapsed but the assessment has not been obtained. It seems improbable that no appropriately qualified person could have been available to assess him in that time. He applied for an adjournment on 6 September 2022 because he was overseas. He did not, however, seek an extension of time because he was unable to arrange a specialist appointment for his ADHD diagnosis to be confirmed. He opposed an extension of time request by the respondent on 30 August 2022.
By his own admission, the applicant does not always tell the truth, or the whole truth.
Past conduct of an applicant is a significant guide in assessing likely future conduct: Statamelatos v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 156, [141]. The applicant emphatically claims that he is a different person from the one who displayed conduct and attitudes of concern in the past, and Rachel supports that assessment. As a nurse holding a supervisory position and with psychiatric experience, her opinions carry weight. But although people, especially young people, can change, his mental health problems are of long standing, dating back to his kindergarten days. Insufficient time has elapsed to enable a tribunal to conclude that he would present no real risk to public safety if he had firearms. Public safety, as Kavalieratos pointed out, includes the safety of the applicant himself and Mr Crough has made repeated threats of self-harm.
In Monjed v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 27, [37] - [39], the tribunal noted that it was necessary to form a view in regard to the present state of the applicant's health. "Only the Applicant is in a position to provide evidence of his health and to show that his mental health is no longer a cause for concern to the extent that it should prevent him from obtaining the licence…." The tribunal could not assume that the applicant's condition had improved: "I cannot assume that a change has occurred merely because some years have gone by and it is not proven that anything of a discreditable kind has occurred. It has to be proven that a change has occurred: Ex parteTziniolis (1966) 67 SR (NSW) 448, 461".
The respondent in that case had submitted that "The Applicant has not provided the necessary evidence to satisfy either the Respondent or the Tribunal his conditions have improved to the extent that they would not continue to affect his conduct and decision-making". In the present case, the applicant has not adduced the expert evidence indicated by Mr Dormand as necessary, or other of other evidence to a similar effect.
Further, in Health Care Complaints Commission v Litchfield [1997] NSWSC 297 the Supreme Court held that the necessity for imposing a condition on the appellant's registration (that the doctor only saw female patients in the presence of a female nurse) demonstrated that he was unfit to practice medicine and in those circumstances the only appropriate order was one that prevented him from doing so: Huckel v Commissioner of Police, New South Wales Police Force [2008] NSWADT 347, [37]. (There could, of course, be some conditions that do not demonstrate unfitness.) In any event conditions of the kind suggested by Mr Dormand (other than requiring further evaluation to confirm his ADHD diagnosis and the appropriate treatment for it) would be unenforceable (id., [45].
The evidence as it stands is thus insufficient to justify finding that he would present no real or appreciable risk to public safety, as understood in Webb, if his licence were reinstated. Consequently, on the evidence currently before the tribunal, reissuing a firearms licence to the applicant would be contrary to the public interest, and I so find.
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].
The principal basis for the respondent's case on both public interest and fitness and propriety is concerns about his mental health and the effects it has had or might have on his conduct. There is a secondary basis, however, namely the applicant's relationship with alcohol and the resulting behaviour when he is intoxicated. This has sometimes taken the form of threats of self-harm, such as in 2011 and 2017. He does not deny that the statements were made but says that he was intoxicated at the time and his recollection of making those statements was hazy (exhibit R1, p 63).
Other similar occurrences include event E47861683, 28 August 2011, when he was removed from a hotel for intoxication and quarrelsome behaviour. On 9 November 2014, police noted when responding to a call about a domestic altercation that the applicant (and the putative victim) had consumed a number of alcoholic beverages. Police also described the applicant as being intoxicated and aggressive at the time of his arrest for offensive behaviour on 8 October 2017. Again, he was given a move on direction on 5 May 2018 for intoxication (exhibit R1, pp 12 - 14).
Similarly, the reasons for the issuance of the interim IAVO in 2020 state that "When the Defendant has consumed alcohol and drugs, he has in the past physically assaulted the PINOP [person in need of protection]" (exhibit R2, p 23). That was, however, denied and untested and the IAVO was withdrawn. Mr Dormand's 15 July 2021 report, however, states in its recommendations that "It is unclear as to the degree to which alcohol affects Mr Crough's decision-making. It seems prudent that Mr Crough abstain from drinking alcohol when in the vicinity of any firearm".
The applicant is a 29 year-old man, originally from Tamworth, who has been living in Sydney for seven years and is employed as an underground construction worker. He has no criminal history other than the bond for the 2017 incident and apparently no significant traffic history. He has no record of negligent or dangerous handling or storing of firearms. For the past two years he has been in a stable relationship with a woman who is very supportive of him and asserts that she has observed major changes for the better in his lifestyle, attitudes and conduct, including in relation to the consumption of alcohol.
Apart from the mental health concerns, I do not think the applicant's record would necessarily be sufficient ground for licence refusal or revocation. But his history of psychiatric problems, threats of self-harm and psychiatric medication and treatment remain of concern. Mr Dormand in his July 2021 report stated that any grant of a licence to the applicant would need to be conditional on the confirmation of his ADHD diagnosis and any possible medication should be evaluated by a medical practitioner, pointing out that "Some forms of ADHD can lead to impulsive behaviours that can be managed well with appropriate medication". He reaffirmed that report a year later.
In Monjed the tribunal pointed out that it is incumbent on an applicant to provide evidence of his health and to show that his mental health is no longer a cause for concern to the extent that it should prevent him from holding a licence. The tribunal could not assume that a change had occurred merely because some years had gone by and nothing of a discreditable kind had occurred. It had to be proven that a change had occurred. The applicant Mr Crough has not adduced recent evidence from a psychologist or psychiatrist to show the nature and extent of any improvement, including in relation to his use or abuse of alcohol. I therefore find that the applicant is not at present a fit and proper person to hold a firearms licence. I have already found that it would be contrary to the public interest for him to do so. The decision under review should be affirmed.