AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5
Briginshaw v Briginshaw (1938) 60 CLR 316
Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Commissioner of Police, New South Wales Police Force v Lee [2016] NSWCATAP 234
Source
Original judgment source is linked above.
Catchwords
AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Commissioner of Police, New South Wales Police Force v Lee [2016] NSWCATAP 234Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Force [2001] NSWADT 50Dattilo v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 349Drake v Minister for Immigration and Ethnic affairs (1979) 2 ALD 60Gear v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 241Gorgeski v Commissioner of Police, New South Wales Police Service [2006] NSWADT 214Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117Keegan-Jaques v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 145Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 388Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 1
Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 274
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Judgment (20 paragraphs)
[1]
Commissioner of Police, New South Wales Police Force (Respondent)
Representation: Solicitors:
Hartmann & Associates (Applicant)
Bartier Perry (Respondent)
File Number(s): 2021/00220961
Publication restriction: See above
[2]
Reasons for decision
The applicant M Giovanni Dattilo applied to this tribunal on 3 August 2021 seeking a review of the respondent Commissioner's decision to refuse his application for a category AB firearms licence.
The decision to refuse the licence on 7 May 2021 was originally based on s 11(4)(c) of the Firearms Act 1996 on the basis of concerns that the applicant might not exercise continuous and responsible control over firearms. That followed an earlier decision to revoke his firearms licence on 1 November 2018 as a result of an incident on 25 February 2018 at Adina Apartments in Coogee.
On 1 November 2021, the respondent informed the applicant that the respondent would also be relying on the public interest ground in s 11(7), on the basis of mental health, the applicant's traffic history, his reported drug use and his reported past dangerous and violent behaviour as detailed in the s 58 documents (and confidential material).
On 19 November 2021 Little SM made certain orders in relation to the respondent's application under s 59 of the Administrative Decisions Review Act 1997 (ADR Act): Dattilo v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 349.
The respondent would thus be proceeding on the basis of two grounds for refusal, first, that there is reasonable cause to believe that the applicant might not exercise continuous and responsible control over firearms because of his intemperate habits or being of unsound mind (s 11(4)(c) and, secondly, that it is not in the public interest that he hold a firearms licence (s 11(7)). The matter came on for hearing on the merits on 4 March 2022 and was adjourned part heard to 27 April 2022.
As no internal review had been requested or determined, an order under s 55(1)(b) of the Administrative Decisions Review Act 1997 (ADR Act) was made.
[3]
Applicable legislation
Section 11(4) of the Firearms Act provides:
(4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of -
(a) the applicant's way of living or domestic circumstances, or
(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or
(c) the applicant's intemperate habits or being of unsound mind.
Section 11(7) of the Firearms Act provides:
(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
The issues in this application are thus whether (1) there is reasonable cause to believe that the applicant may not exercise continuous and responsible control over firearms because of his intemperate habits or being of unsound mind, and (2) whether it is not in the public interest that the applicant hold a firearms licence.
[4]
Mr Giovanni Dattilo
In oral evidence at the hearing the applicant adopted his written statement (part exhibit A1) in which he explained that in 1995 he was first issued with a firearms licence, which was revoked in 2018 on mental health grounds brought forward by his ex-wife. He had thus held a firearms licence for 23 years. In view of the concerns over his mental health, he undertook a full psychological assessment with Mr Michael Kruger-Davis, a registered psychologist.
In relation to event E235098198 dated 27 February 2018, he was served with a notice of suspension of firearms licence because of health problems related to drugs or a mental health disorder or illness. He separated from his ex-wife in 2018. Since then, he had been feeling relaxed and back to normal, and no issues had been present on his personal record. In fact, his record has been tarnished only during the time he was married. He described his marriage as being one of constant verbal and emotional abuse. Nothing he did was good enough for his ex-wife. As well as being in an abusive relationship, he was dealing with a considerable amount of work stress caused by the global financial crisis.
In relation to event E67496243 dated 25 February 2018, police had a conversation with him and he confirmed that he was suffering from anxiety. He had consumed a large amount of alcohol and cigarettes and was perspiring profusely, jittering when speaking, and erratic. He had not slept in days because of the marriage problems with his wife at the time and the stress and concern in losing his business. According to the Prince of Wales Hospital notes, his mental status examination produced a diagnosis of drug-induced psychosis.
A later examination showed a significant improvement, no hypervigilant behaviour, no agitated or vegetative features, appeared tired, eurhythmic (normal mood state), no delusional or paranoid ideas evidence, suicide ideation denied, did not appear to be responding to internal stimulation, orientation of place and partial insight. The registrar listed no new psychotic phenomena. No diagnosis was listed by the registrar. He was discharged with medication and a plan for follow-up.
Two or three days later, he was visited by hospital staff who conducted a mental status examination and suicide risk assessment. There was no further follow-up. He was not referred to a psychiatrist or psychologist, was not prescribed any further medication or asked to undergo any cognitive behavioural therapy. He strongly believes that his condition was a result of the behaviours and treatment and abusive relationship he was in.
[5]
Ms Isil Heves Kavas
In oral evidence by telephone at the hearing, Ms Kavas adopted her written reference dated 2 February 2022 (part exhibit A1). Asked in cross-examination about her statement that the incident resulting in his licence revocation was "highly out of character", the witness said she could not now recall what it was, except that it was an incident with his ex-wife. She did not know about any incident at the Coogee apartments, but he had told her that he had been assessed at hospital. She had a brief chat with him about the incident with his ex-wife but was not aware of his use of cocaine or about other incidents, except that she knew there was something at a McDonald's that resulted in his going to hospital for assessment. When it was put to her that her opinion was based on a small factual basis, she replied that it was also founded on an acquaintance extending over two years. She saw him and his partner regularly at least once a week or once a fortnight.
[6]
Mr Steve Malesev
In oral evidence by telephone Mr Malesev adopted his reference dated 4 February 2022 (part exhibit A1). In cross-examination Mr Mattson drew attention to his statement that the applicant had never displayed any sign of "intemperate habits", and agreed that he had not asked him about concerns over drugs, and the applicant had not mentioned any, or the incident at Coogee. Nor had he said that he had been using cocaine once or twice a week and that it had made him paranoid.
When it was put to him that he had not had a full discussion with the applicant about his background, he explained that his reference related only to their business dealings. In that context they had occasionally had lunch together and his behaviour on those occasions was normal and relaxed.
[7]
Mr Vincent Gatt
Having adopted his reference dated 2 February 2022, Mr Gatt said he had read the respondent's refusal letter and the applicant had told him he had mental problems, but Mr Gatt could not understand it, and believed it had been caused by his marriage. They had vaguely discussed the incident at Coogee in 2018 involving the police, and he knew about the applicant's cocaine usage, but did not go into detail about it as he does not like to interfere in these matters. However, he had never given any appearance of being under the influence of cocaine and Mr Gatt can tell from a person's appearance if he has a problem. He also knew there had been a problem at a McDonald's, but could not recall the details.
There had never been any problem when they engaged in clay target shooting. Mr Gatt knew him and found him to be very reputable. His opinion was based on his experience with him and what he had told him. He did not go into people's personal lives, but he knew the applicant had suffered from anxiety in connexion with his wife. Mr Gatt had often seen him at the clay target club from 2005 onwards. He had never felt any concern about the applicant's behaviour, including with firearms.
[8]
Mr Michael Kruger-Davis
The applicant tendered an 18-page psychological report by Mr Michael Kruger-Davis, a registered psychologist, dated 25 November 2012 (part exhibit A1). The report stated that Mr Kruger-Davis had been asked to assess the applicant's current mental health status and report on a detailed personal history, an assessment of his mental state including details of any mental or physical health condition and his level of insight into that condition, recurrent suicidal risk assessment and opinion as to the applicant's fitness and propriety to possess and use firearms, and the reason for reaching that conclusion.
The report noted that the applicant is a psychologist and had seven consultations between June and November 2021, by way of video conference calls or telephone discussions. A number of anxiety, stress and depression questionnaires, as well as a current suicidal risk assessment were administered.
The report concluded that the applicant presents as being of "sound mind" and does not currently present with depression, anxiety or overwhelming psychological distress. He does not have a mental disorder, personality disorder, mood disorder, thought disorder or substance abuse disorder as listed in the Diagnostic and Statistical Manual of Mental Disorders - 5th edition (DSM-5). He did not drink alcohol excessively or take illicit or prescribed drugs that would impact on his ability to possess and use firearms. He had a very high global assessment of functioning. He owns, manages and operates a large concreting business employing over 60 people. He has not been charged with driving under the influence or prescribed concentration of alcohol. He has no criminal convictions nor does he hold criminal associations.
The applicant does not pose a suicidal risk and there are no predisposing, precipitating or perpetuating factors that would elevate his suicide risk profile. He has a number of sound protective factors that indicated he is looking forward to his future and currently holds no fears for the future. There are currently no factors that would indicate he would not be able to exercise willpower and continuous control if he were to possess and use firearms.
Mr Kruger-Davis found that his narrative was truthful and honest and he could not detect any indications of any intent to deceive or otherwise influence the substantive effect of the report. The clinical interview, mental status examination and suicide risk assessments are standard psychological practices for conducting mental health assessments. They are coupled with empirical assessments that have inbuilt reliability and validity measures. His 35 years as a psychologist allow him to identify most attempts to deceive when interviewing clients.
[9]
Respondent's evidence
The respondent relied on documentary evidence, including the s 58 documents (exhibit R1) and two open statements, one by Senior Constable Corinne Dawes (exhibit R2) the other by Senior Constable Nadia Marin (exhibit R3).
[10]
S/C Corinne Dawes
Senior Constable Dawes's statement dated 25 February 2022 relates how on 25 February 2018 she attended an incident involving the applicant at the Adina Apartments at Coogee in company with S/C Jake Trepani. She confirmed that the outline of the incident in event report E67496243 (exhibit R1, pp 12ff) was true and accurate.
At the scene, she recalled the applicant informing her and S/C Trapani words to the effect that five men had entered his room and stolen his telephone, and that he had chased them through the Adina Apartments. When they reviewed the Adina CCTV footage, she did not see in the CCTV footage any men at all as described by the applicant.
As the applicant's behaviour was erratic and he appeared paranoid, she believed that the men were the applicant's hallucination. An ambulance was requested and the applicant was conveyed by ambulance to Prince of Wales Hospital for a mental health assessment. At the hospital, she completed a s 22 report because she believed the applicant was at risk of harming himself or others or both. In addition to the above matters, he was under the influence of drugs and alcohol and he had informed her that he had suffered from a mental health condition. The officer was not required for cross-examination.
[11]
S/C Nadia Marin
Senior Constable Marin's statement dated 25 February 2022 recalled that on 18 November 2014 she had attended a domestic incident involving the applicant and his then wife, Mrs J**** Dattilo, at their residence at Chiswick. Event report E58221987 (exhibit R1, pp 42ff) to the best of her recollection is a true and accurate account of the events, including what he was told by Mrs Dattilo and the applicant.
On 18 November 2014, police received a computer-aided dispatch from Mrs Dattilo, who had contacted police from her parents' house in Five Dock, saying:
"I've managed to escape. I was hiding in a flowerbed for about half an hour and I have managed to escape and get down to my parents' place. I'm just worried that he's going to turn up here because he's just destroying the entire apartment….
He's just been hitting me and throwing me around and everything like I don't know if I've chipped my elbow bone….
No no he was just grabbing knives anything like that then he said he was gonna ah he was gonna um kill himself and he said he was coming after me then he was throwing me around wouldn't let me out it went on over an hour till I managed to escape….
He was throwing me around and I was trying to escape when I was trying [to] escape he was hitting shoes at me he destroyed an expensive handbag and he um he because he wouldn't let me out [of] the house and then when he started destroying the bedroom that's when I quickly raced out as quickly as I could and I hid in a bush cause I couldn't get down to the car park quick enough so I decided to take the fire stairs and going down and hide outside in a bush".
When the operator asked Mrs Dattilo if there were "any AVOs in place", Mrs Dattilo responded "No no there isn't but I want to get one after what happened today it's happened too often and now". When the operator asked Mrs Dattilo if there were "any drugs or alcohol involved, had your husband been drinking at all?", Mrs Dattilo responded "yes a lot".
Shortly thereafter, at Five Dock Police Station, S/C Marin spoke to Mrs Dattilo about the incident. She recalls that Mrs Dattilo seemed very shaken by the incident as her hands were shaking and she spoke quickly and trembled. She recalled Mrs Dattilo saying words to the effect of "I don't want him to return home", referring to the applicant and "I am scared of him and scared for my son". She believed that Mrs Dattilo's fear was genuine, because she had fled from the applicant to her parents' house and she seemed very shaken.
[12]
Applicant's submissions
On behalf of the applicant, Mr Kable submitted that the psychologist's report had stated that there was no issue with the applicant's mental health. Although one could never be entirely certain in such matters, the applicant had received a positive report, which indicated that he presented a very low risk. The decided cases bore this out: AMJ v Commissioner of Police, New South Wales Police Service [2012] NSWADT 228 and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 both set aside decisions that had been based on a prior suicide attempt and drug offences respectively.
Similarly, Gear v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 241 concerned an applicant who had a significant drug history involving court appearances. The tribunal decided that he presented a low risk to public safety (at [33] - [36]). In Gorgeski v Commissioner of Police, New South Wales Police Service [2006] NSWADT 214, [51], the applicant's drug offence was serious but isolated and there was no evidence that it would impair public safety. Further, I had stated in Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 274, [47] that licence holders were not required to have led exemplary lives.
[13]
Approach
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). 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.
[14]
Mental health
The first ground on which the respondent contends that the licence refusal should be affirmed is the applicant's mental health. Section 11(4) of the Firearms Act 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 … (c) the applicant's intemperate habits or being of unsound mind".
The applicant's mental health became a matter of concern following an episode at the Adina Apartments at Coogee on 25 February 2018, during which the applicant barricaded himself in a room and said that people were trying to "bash" him. He armed himself with a metal pole and was heard screaming within the room. When police arrived, he informed them that he suffered from anxiety and takes Valium and that he had consumed a large amount of alcohol, cigarettes and lines of cocaine in the last few days. He had not slept in days and was having marriage problems with his wife.
Police observed that he was perspiring profusely, jittery, had dilated pupils and was generally erratic. He further informed police that up to five men had entered his room at the apartments and stolen his telephone. He said he had then chased them through the hotel. A review of the CCTV footage showed no males at the building as described by the applicant. He was then conveyed to Prince of Wales Hospital, where the mental health assessment notes record that he was diagnosed with "drug-induced psychosis" and had "acute paranoid delusions". He had consumed approximately 6 - 9 g of cocaine in the past 48 hours.
He informed hospital staff that he took Valium a few times a week, and used cannabis sporadically. He used cocaine weekly, up to 2 bags (grams) with a friend. Staff noted that he sincerely believed he had been robbed by men, which was not the case.
In response to that evidence, the applicant tendered an 18-page evaluation report by a consulting psychologist, Mr Michael Kruger-Davis, who had been asked to assess the applicant's current mental health status and report on a detailed personal history, an assessment of his mental state including details of any mental or physical health condition, suicidal risk assessment and opinion as to the applicant's fitness and propriety to possess and use firearms (part exhibit A1). Mr Kruger-Davis currently works part-time as a consulting psychologist with the New South Wales Department of Education, having retired from full-time employment with the department in 2016. He has 35 years' experience in various capacities as a psychologist and counsellor and is currently an accredited supervisor with the Australian Health Professional Regulation Agency.
[15]
Public interest
The other ground on which the respondent opposes the issuance of a licence to the applicant is that it would be contrary to the public interest within the meaning of s 11(7) of the Firearms Act.
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.
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.
[16]
The references
The applicant relied on the evidence of 11 character referees who have known the applicant in various capacities (part exhibit A1). The evidence of Ms Isil Kavas, Mr Steve Malesev and Mr Vincent Gatt, and their cross-examination by the respondent, has been summarized above and need not be repeated here. There are also eight other recent written references.
Father M A De Battista wrote that he had known the applicant since 2009 and had many meals with him and his former wife P*** over the years. They even visited him during his six-year stay in Rome, together with their son. John had always struck him as a very genuine man whose word is his bond. He is kind and a supportive friend. When Fr De Battista returned from Rome in December 2016, he began to see serious difficulties within the applicant's marriage that ultimately led to separation and divorce. As was noted above, he attempted to negotiate some kind of friendly settlement between the spouses, but was unsuccessful.
As a result of the breakdown, John had reached his limits and it was in that low moment that he acted out of character. Fr De Battista had read the refusal notice and the description and it seemed inconsistent with John's character. He was also aware of the incident at McDonald's. He believed that all that occurred when he was at a low point in his life which had long since passed. Since then John had become healthier emotionally and psychologically more stable. He has a healthy relationship in his life in which he feels supported and understood. It was clear that the toxic element of the previous relationship was no longer impacting on him. He had modified some of his personal habits to ensure that he continued in that pattern.
Mr Luigi Greco, president of The Australian Man Cave, who has known Giovanni (John) Dattilo for over 10 years and has read the revocation notice, declared that his mental health and interaction, along with the respect of people around him, was of high integrity. The recorded behaviour at the incident at McDonald's was very much out of character and demeanour for him he believes that they were a result of provocation, stress, anxiety and a failed marriage.
Giovanni, Mr Greco said, is a man who takes pride in his work, family and friendships. He is hard-working, running a successful business with a large team of employees and subcontractors. He provides endless love and support to his family and friends, and also supports local charitable organizations. Mr Greco had not witnessed any situations whereby Giovanni had shown or proven to be mentally unstable or of unsound mind. He feels it would be very unlikely that Giovanni would reoffend. To the best of his knowledge, Giovanni does not have any mental health issues that would prevent him from behaving accordingly under the Firearms Act. He is a great man who is highly respected, loved and trustworthy. He is responsible and reliable and is now in a much healthier, loving and respectful relationship.
[17]
Evaluation
The applicant is a man aged 45 who now lives in a stable de facto relationship. He has no criminal convictions, although he has (by my reckoning) three s 10 discharges or bonds. Having grown up on a farm, he has been aware of firearms safety procedures from an early age. He has had no firearms offences or breaches of safety or storage requirements in the 23 years during which he has held a firearms licence.
He developed a pattern of violent behaviour beginning in the June 2005 confrontation at the Kings Court Hotel, followed by disorderly behaviour at the Crown Hotel in Camden in November 2007 and another episode in March 2011 at the Crowne Plaza Hotel in Hunter Valley involving destruction of a glass door, which saw him placed on a s 10 bond.
Then followed a series of occurrences which the applicant (and his referees) attribute to the stresses caused by his marriage breakdown, beginning with a verbal and physical altercation with his then wife in November 2014 that resulted in the suspension of his firearms licence, followed by a further verbal argument in June 2015. In the course of the incident at McDonald's in February 2016 he shouted profanities at staff and customers and threw a cup of water across the room, splashing other customers in the process. Fisticuffs outside the restaurant ensued, in which the applicant was actually the victim. He was issued with an infringement notice for offensive behaviour.
That pattern culminated in the full-scale mental breakdown at the Adina Apartments at Coogee on 25 February 2018 which has been described above. The mental health team at Prince of Wales Hospital diagnosed drug-induced psychosis but observed substantial improvement and stabilization of his mental state and discharged him late the same evening. Since then, there have been no other instances of erratic or aggressive behaviour and by all accounts he now behaves as a responsible member of the community. The psychologist's report by Mr Kruger-Davis assessed him as being within normal limits on all indicators.
His indifferent traffic record began with a demerit point cancellation of his provisional license in 1995 and included nine speeding violations and a licence suspension in April 2014 (reversed on appeal). Particularly serious was his driving his Ferrari at between 100 and 110 km/h in an active 40 km/h school zone. Since 2014 he has had no infringements recorded, other than a low-range speeding contravention in December 2020.
[18]
Conclusion
In relation to the ground under s 11(4)(c) I find that there is no reasonable cause to believe that the applicant might not exercise continuous and responsible control over firearms because of intemperate habits or being of unsound mind.
In relation to the public interest ground under s 11(7), I find on the basis of the open and confidential evidence that while the applicant now enjoys a stable background and mental state and appears to have a sound reputation in the community, insufficient time has elapsed to enable a tribunal to be confident that there is no significant risk of a relapse into aggressive or destructive behaviour that might jeopardize public safety. His prior conduct was so egregious that more time without reports of further instances of violent or irrational behaviour, or other forms of adverse notice, would be needed before a decision favourable to him would be warranted. On those grounds, therefore, I find that it is not in the public interest for the applicant to hold a firearms licence and the decision under review must be affirmed.
[19]
Orders
1. Decision under review affirmed.
2. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the contents of confidential exhibits CR5 and CR6 and the transcripts and records of the confidential hearings are not to be disclosed to the applicant.
3. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the contents of confidential exhibits CR5 and CR6 and the transcripts and records of the confidential hearings are not to be published.
4. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the publication and recording of the confidential hearing, including confidential exhibits CR5 and CR6 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked "[NOT FOR PUBLICATION]" are not to be published or released to the applicant.
[20]
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: 08 July 2022
Parties
Applicant/Plaintiff:
Dattilo
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
In relation to event E60778731, 27 February 2016, he was the victim of an assault. The accused was charged in court on 27 February. During that time his ex-wife was not supportive or compassionate and he obtained all his medical support from his family. He suffered from migraines and vertigo and was unable to drive and run his business for 3 to 6 months. He obtained support from his staff and family.
As to event E59599055, 19 June 2015, he was in the middle of a disagreement with his ex-wife when she decided to call the police. She wanted to take the family vehicle and he refused, as it was booked in that day to have repairs on the brakes. He was merely acting in her best interests and safety as the brakes were not working. She contacted the police and escalated what was a simple disagreement. As she threatened to take their son, he was not encouraging her to use the vehicle out of concern for her and his son's safety.
The events did not warrant the attendance of the police and were just another example of the undue stress and anxiety to which his ex-wife subjected him. In reviewing his police record, he would like it to be noted that he had not been charged with any offences. He had, however, been involved in a number of fundraisers and support groups within the local community.
On 8 November 2010, he supported the Anderson family with the rebuilding and renovation of their family home after the death of Detective Inspector Bryson Anderson. On 17 and 18 August 2009, he supported the Hannah family after the death of both parents, leaving behind four children. In 2000, his businesses supported another local family who had lost their father through a ski boat accident. His businesses also support local charity groups, Children's Hospital and school fundraisers.
His businesses have over 65 employees and over 50 subcontractors for whom he holds himself responsible for providing full-time employment. He strongly believes he should be reissued with his firearms licence as he had provided substantial evidence, including a psychiatric review and character references that he is a man of strong work ethic, good character, honesty and integrity. In the 23 years he held a licence, he never had any issues raised until he met his ex-wife.
In oral evidence at the hearing, the applicant reiterated those points. As regards the incidents described in exhibit R1, he explained that he went through a bad two or three years in 2014 - 2018, when he was down and out, and abusing alcohol and drugs. He had now put his life back on track and with a new partner was back to his old life. He did not, however deny any of the incidents described.
He had grown up on a farm and was familiar with shooting practices and precautions. He is now in a stable frame of mind and concentrates on running his business. He walks away from any disputes that arise. He leads a healthy life, taking regular exercise, avoiding illicit drugs and only associating with good people. He came from a good family and knew that what he had done was wrong, and he had seen what it had done to his family.
In cross-examination the applicant agreed that he had seen Mr Kruger-Davis to obtain the report, not for treatment. He had told him what had happened, and that he had used two or 3 g of cocaine, then three or 4 g, four days a week. The psychologist's report was correct.
He agreed that his wife had not forced him to take cocaine and said he had used it every week on his own or with a friend, but more often on his own. He would sometimes become paranoid when taking cocaine. He had been in a bad state in 2014 - 2018. The Crowne Plaza incident in 2011 had not involved scuffling with security, but had resulted when somebody else had pushed him and he had spoken to security about it. He had also paid for the broken door which he had kicked open when trying to get outside to the man who had struck him in the throat. His assailant was a bigger man, and the applicant's friends had calmed him down. He agreed that he had been violent at the Crowne Plaza and had caused damage, saying that it happened at the start of his marriage problems, which began in 2009. He admitted what he had done and that his wife had not made him cause damage, but said that it was because he was in a toxic marriage.
The applicant tendered 11 character references (part exhibit A1), the contents of which are outlined later in these reasons. Several of the referees gave oral evidence by telephone, starting with Ms Isil Kavas.
In oral evidence at the adjourned hearing Mr Kruger-Davis adopted the report of 25 November 2021 which he had prepared following a number of telephone and video conference calls, and the administering of multiple widely-used psychological tests, the results of which he analysed. He mentioned that he found that the New South Wales Firearms Risk Assessment questionnaire was very good. Psychological assessment was not an exact science but was based on questions and analysis of the responses. It involved assessing what the client says or does not say, and thereby endeavouring to find the motivations for his conduct. The applicant appeared honest and candid, for example in relation to his ex-wife.
Cross-examined by Mr Mattson on behalf of the respondent, the witness explained that he had conducted a triage consultation and three other assessments, together with a number of other telephone discussions. He had supplied the applicant with the draft report and asked him if there were any spelling errors or other problems with it, all the while continuing to assess him. If he had detected anything untoward in the applicant's responses and questions, he would have altered the report, but if there was no change to his thought patterns, the report would stay the same.
He had not obtained any medical records from the applicant's general practitioner, but had received the report from the South Eastern Sydney Local Health District. It was not his practice to perform drug screening, but the assessment from Prince of Wales Hospital dated 25 February 2018 following the incident at Adina Apartments at Coogee had shown drug-induced psychosis. The applicant had said he had been "alarmed" by the incident and by the effects of poly substances, but that was in 2018, and the witness was reviewing his mental state in 2021. He had seen no signs of psychosis or drug-induced psychosis.
He had not asked the applicant any questions about the 2016 incident at McDonald's, as it was not listed in the police refusal notice. He had not cross-checked the applicant's responses against the reports of the earlier incidents such as those in 2011 and 2014 because that was not his role. He had been asked to carry out a current assessment.
When it was put to the witness that there was nothing in his report about anger issues, he replied that those matters were covered by the mental status evaluation he had done. In their discussions the applicant had not projected any anger problems, as he was no longer with his ex-wife or taking drugs. There was no need to go back to 2011, as his behaviour was different in 2021. There was no evidence of drug use since 2018 and he had exercised rational judgment in such areas as his business and family.
In re-examination Mr Kruger-Davis explained that the tests administered required self-reports about symptoms such as depression, anxiety etc. and gave an indication of how the client was feeling. All the matters canvassed were in the DSM-5. His approach was to ask the client about the answers given. It often turned out that symptoms were due to the normal things in life, and the applicant's responses were within normal limits. The tests gave a snapshot as at a particular time. It is possible to look at past conduct, but it is significant only if it continues. The applicant was now out of a toxic relationship with his ex-wife and is in a sound relationship now. He is coping well and is not involved with drugs.
She recorded her conversation with Mrs Dattilo about the incident in her police notebook. Mrs Dattilo said:
"he swung at me and hit me in the mouth"
"he would kick me in my legs"
"he wouldn't give me my phone"
"he would throw me to the bed"
"I saw him in the kitchen pulling out all the knives"
"he saw me and dropped the knives and came towards me. He grabbed my bag and pulled it apart with his foot. He pushed me back inside. He took off his shoe and hit me on my arm legs with it".
S/C Marin recalled that Mrs Dattilo also complained of a sore leg and elbow which had occurred at some point during the incident. Mrs Dattilo told her that she feared the applicant. She refused to sign the police notebook statement.
Subsequently, the officer attended at the residence in Chiswick. She recalled seeing an obvious dent in the wall of the hallway to the main bedroom and clothes scattered across the bedroom. In the kitchen, she recalled seeing a broken wineglass and approximately eight cutting knives on and around the kitchen bench and in the kitchen sink. In the kitchen sink, she also recalled seeing a handbag with a broken strap which she now knows was Mrs Dattilo's handbag. She took photographs of the residence and of Mrs Dattilo's sore lip.
As a result of the physical nature of the domestic incident and Mrs Dattilo's genuine fear of the applicant, S/C Marin immediately applied for an interim AVO naming Mrs Dattilo as the victim and the applicant as the defendant. She served the interim AVO on the applicant (noted in event report E56245704, exhibit R1, p 40).
On 21 November 2014, the AVO was withdrawn because Mrs Dattilo refused to provide a statement to police and told the court that she held no fears in relation to the applicant. The withdrawal of the interim AVO was noted in event report E56914671 (exhibit R1, p 38). S/C Marin recalled considering charging the applicant with a domestic offence, but did not do so because Mrs Dattilo did not provide a statement to police. She believed that Mrs Dattilo did not provide a statement to police out of fear of retaliation from the applicant.
In a confidential hearing held pursuant to s 49(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act), the respondent tendered two confidential statements, confidential exhibits CR5 and CR6.
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The psychologist had seven consultations with the applicant between June and November 2021, by way of video conference calls or telephone discussions. Several anxiety, stress and depression questionnaires, as well as a current suicidal risk assessment were administered. He concluded that the applicant's narrative was truthful and candid, and he could detect no indications of any intent to deceive. The clinical interviews, mental status examination and suicide risk assessments were standard psychological practices for conducting mental health assessments, and are coupled with empirical assessments that have inbuilt reliability and validity measures.
The report concluded that the applicant presented as being of sound mind and did not currently present with depression, anxiety or overwhelming psychological distress. "He does not have a mental disorder, personality disorder, mood disorder, thought disorder or substance abuse disorder as listed in the…. (DSM - 5)". He did not drink excessively or use drugs that would impact on his ability to possess and use firearms. He had very high global assessment of functioning, managing and operating a large concreting business. He had not been charged with drink-driving and had no criminal convictions. He did not pose a suicide risk and there were no predisposing factors that would elevate his risk profile. Indeed, he had a number of sound protective factors that indicated he was looking forward to his future and currently holds no fears for the future.
The respondent criticized the report, partly on the ground that Mr Kruger-Davis was not the applicant's treating doctor or psychologist, and submitted that he had not obtained a full history from the applicant. Nor had he critically analysed the accounts of events given by the applicant.
The psychologist's position was that his role was to assess the applicant's current mental health condition, not to evaluate his past behaviour unless it had continued to the present time. He had administered six standard psychological assessments, a mental status examination, a Beck depression inventory, a Beck anxiety inventory, a depression anxiety stress scale, a Kessler psychological distress scale and an Australian Institute for Suicide Research and Prevention Protocol (Suicidal Risk) Assessment.
The applicant's responses to all these tests fell within normal limits and his suicide risk assessment revealed no apparent risk. In a separate private telephone call he asked the applicant's partner, R*****, whether she had any concerns or fears living in a house with John Dattilo if he were to have a firearms licence and firearms. She answered, "God, No". She stated that she had no concerns regarding John with herself for her children. She stated that she had known him for 30 years and that he is trustful and loving.
Several of the applicant's 11 character referees referred to the 2018 Coogee incident and the applicant's disturbed mental state at the time but said that that was a low point in his life brought about by marital stresses and accompanying drug use, from which he had fully recovered. They included Father M.A. De Battista, who had known the applicant since 2009 and in 2017 had attempted to negotiate an amicable property settlement with his then wife P****, who he found to be manipulative, uncooperative and demanding and whose behaviour he thought had caused the applicant to reach "his limits". He believed that since then the applicant had become healthier emotionally and psychologically more stable, and had modified some of his personal habits to ensure that he continued along that pattern. While those are lay opinions, their congruence with the psychologist's assessment is of some assistance in resolving this issue.
In his report Mr Kruger-Davis answered all the questions asked in the New South Wales Firearms Registry Risk Assessment Questions, concluding that it was not possible to diagnose a mental health condition or impairment and that his global assessment of functioning was very high, in relationships, finances, employment, and health directives. There were no indications that Mr Dattilo would relapse, although he pointed out that "Future risk is difficult to predict but would require significant changes that are not currently indicated". He based the conclusions in his 18-page report on seven interviews, including three formal evaluations, which seems at least as extensive a basis as is usually found in similar evaluations in such cases.
Impeaching Mr Kruger-Davis's methodology or other aspects of his approach in those circumstances would require expert evidence of error or omission, of which there is none before the tribunal. I therefore find that there is no reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of his "intemperate habits or being of unsound mind", within the meaning of s 11(4)(c) of the Firearms Act.
The respondent pointed out that the Appeal Panel in Commissioner of Police, New South Wales Police Force v Lee [2016] NSWCATAP 234, [24] had declared that in the context of firearms regulation "it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant".
The respondent submitted that there were several incidents involving the applicant reflecting a pattern of behaviour incompatible with firearms ownership. One involved disorderly behaviour at the Kings Court Hotel on 23 June 2005, and again at the Crown Hotel in Camden on 10 November 2007. In the latter case he evinced a loud and intimidating manner in the presence of other patrons, including women, resulting in a number of them leaving the area. He became argumentative when repeatedly asked to leave the premises, and when physically ejected took part in a mélée outside the hotel. He was subsequently issued with an infringement notice for failing to leave a licensed premises.
On 26 March 2011, on a courtesy bus in the Hunter Valley, the applicant engaged in a heated altercation with another passenger which continued until the parties alighted at the Crowne Plaza Hotel. The applicant and his party then tried to enter the downstairs bar area, whereupon staff tried to prevent them from entering and locked the glass doors. The applicant was aggressive with security and staff and struck the glass panel of the door, causing it to shatter. He was subsequently placed on a s 10 good behaviour bond at Liverpool Local Court on 27 March 2011 for destroying or damaging property.
A more serious incident occurred on 18 November 2014 in the course of an altercation between the applicant and his then wife, Mrs J*** (known as P****) Dattilo, when he woke her by screaming at her and accusing her of infidelity. He manhandled Mrs Dattilo and struck her in the face and arms, and kicked her legs. He then kicked the bedroom wall, causing a large dent in it. In the kitchen, he pulled out a number of knives from the knife block, put one of them to his chest and said he would kill himself. When Mrs Dattilo tried to leave the house, he dropped the knives and seized her bag, pulling it apart with his foot, then pushed her back from the door. Police applied for an apprehended violence order and seized the applicant's firearms, suspending his licence. The AVO was subsequently withdrawn and the applicant was not charged as Mrs Dattilo declined to provide a statement. Another loud argument between the parties on 19 June 2015 resulted in a telephone call to police.
The respondent noted that in his statement the applicant said his wife had caused his mental health problems and that the "marriage [was] one of constant verbal and emotional abuse" (at [6]). The respondent submitted that this amounted to blaming his wife for the domestic violence and a failure to accept responsibility for his own actions.
Again, on 27 February 2016 the applicant shouted profanities at staff and customers at a McDonald's, throwing a cup containing water across the room, which struck the wall and splashed onto other customers. Outside the restaurant, an altercation ensued in the course of which the applicant was struck by another man. The applicant was subsequently issued with an infringement notice for offensive behaviour.
The most serious episode occurred at the Adina Apartments in Coogee on 25 February 2018, when the applicant barricaded himself in a room, saying that people were trying to "bash" him. He armed himself with a metal pole and was heard screaming within the room. That caused staff members and guests to leave the premises. The applicant told police that up to five men had entered his room at the apartments and stolen his telephone, adding that he had chased them through the hotel.
A review of the CCTV footage showed that there were no males at the hotel as the applicant had claimed. The incident has been outlined above, as has the Prince of Wales Hospital mental health assessment (exhibit R4), which diagnosed drug-induced psychosis with acute paranoid delusions. Following this incident, police took possession of the applicant's firearms and served him with a notice of suspension. In her statement dated 25 February 2022, Senior Constable Corinne Dawes, who attended at the scene, confirmed the contents of event report E67496243 (exhibit R1, pp 12 - 14) and noted that the applicant's behaviour was erratic and he appeared paranoid. On reviewing the CCTV footage she concluded that the "five men" were the applicant's hallucination (exhibit R2).
The applicant in response pointed out that the mental status examination performed later the same day showed a significant improvement in his presentation (exhibit R4, pp 4 -5). He was discharged with medication and a plan for follow-up. Two or three days later he was visited by hospital staff who conducted a mental status examination and suicide risk assessment. There was no further follow-up. He was not referred to a psychiatrist or psychologist, not prescribed any further medication or asked to undergo any cognitive behavioural therapy. He strongly believes the episode resulted from the behaviours and treatment and abusive relationship he was in (part exhibit A1).
The respondent also relied on the applicant's poor traffic record, pointing out that in Keegan-Jaques v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 145, [81] the tribunal had said that "The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for regulatory scheme aimed at ensuring public safety". Between 18 July 1994 and 24 December 2020, the applicant had committed nine speeding violations.
They included a serious incident on 16 April 2014 when he had driven his Ferrari at between 100 and 110 km/h in an active 40 km/h school zone (event E 54586848, exhibit R1, pp 55 - 56). When stopped by police he said, "it was silly of me, I am going through a hard time at the moment, can't you let me go", to which police replied "no". His licence was suspended.
In these proceedings he made no comment about that violation, other than his general explanation that he was going through a bad period between 2014 and 2018. On 4 September 2014 he also had exceeded the speed limit by 20 km/h in a school zone and was given a s 10 bond. From 2014 onwards his traffic record has improved, except that on 24 December 2020 he exceeded the limit by not more than 10 km/h.
The respondent also adduced confidential evidence, pursuant to orders made by Little SM on 19 November 2021, in a confidential hearing held under s 49(2) of the CAT Act. It consisted of two confidential statements, confidential exhibits CR5 and CR6.
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Mr Mario Marando, who has been an admitted legal practitioner since 1994, has known the applicant both socially and professionally for over 20 years. During that time he has known him to be hard-working, generous and always willing to assist others in need. He has donated and assisted numerous charitable organizations in the period Mr Marando has known him. He has always found Giovanni to be a person of great integrity and honesty.
About four years ago, he experienced a stressful and emotional separation of his marriage which involved financial matters and his child. He struggled for periods of time to handle that period of time emotionally and expressed to Mr Marando that he suffered from anxiety. He now has a new partner who has assisted him in accepting and resolving issues in his life, and he is now emotionally happy and settled. He is a dedicated family man who is highly respected and admired among his friends and peers.
Mr Paul Signorelli OAM, executive chairman of Doltone House, a reception venue company, has known the applicant for over 10 years. Mr Signorelli had read the refusal notice and believes that the incident that caused his licence to be revoked was very out of character and demeanour. Giovanni is a philanthropist and supports many charities, most recently he was a major sponsor and supporter of the Biaggio Signorelli Asbestos Foundation supporting the research, awareness and most importantly a cure for mesothelioma. Mr Signorelli founded the foundation in 2008, and Giovanni is still a major supporter every year since the formation of the foundation.
The applicant owns and operates a very successful business in which he employs many people. As a business owner himself, Mr Signorelli knows the challenges of dealings with employees and consumers, and Giovanni has proven he can deal with both. Having to deal with Covid-19 has dealt many challenges to business, including staying solvent. So to see Giovanni's business grow during the pandemic confirms the business and mental stability that have enabled him to achieve such accolades. He has never appeared to be mentally unstable or unfit or suffering any mental health issues. He is a gentleman and a loving father of a young and intelligent young man, Gianluca, and is currently in a very stable and happy relationship with his new partner.
Mr Vinay Nayagar, of Middleton's Pharmacy at Abbotsford, has known the applicant for about 10 years through family connections and being his pharmacist. He knows the applicant to be considerate of those around him, showing compassion and kindness to others. He has always been safety-minded and followed any safety directions (especially through the Covid-19 pandemic) when interacting with the pharmacy's predominantly female staff and with himself. Over the years he has been helping local families and older individuals in need by doing small handyman jobs around homes when needed, at no charge and providing fresh produce, including meat, especially when meat and other fresh foods were in short supply during the pandemic. As he helped those who were vulnerable, he maintained safety protocols such as mask wearing, hand sanitizing and distancing. His generosity extended beyond his family, as he helped the vulnerable in times of need.
Mr Nayager had never known Giovanni to be verbally abrasive, violent or in any way demeaning to pharmacy staff or any person he had witnessed Giovanni in company with. He was aware of the recorded behaviour at McDonald's, which seemed out of character for Giovanni and not the person he had come to know over the last 10 years. He has a level of maturity, consideration and understanding of risk and respect for others, which are the reason he was writing this reference. Giovanni has at all times during his interactions with Mr Nayager shown himself to be of stable mind and not exhibiting any tendencies that would give rise to concern. He has seen Giovanni interact with vulnerable individuals on several occasions, and his emotional response was one of concern and care for those individuals.
Ms Nina Romano JP has been the accountant for the applicant and his related entities for 29 years. From the moment she became his accountant, it was evident to her that he would one day become the successful entrepreneur that he is today. That became apparent because of his desire to succeed. He started his first business at the age of 16, and she was amazed at how determined he was to make a name for himself in the industry. Through hard work and dedication, he was able to amass the successful business that he has today.
The applicant is well respected in the community and in the industry for his strong ethics of honesty, loyalty, hard work and perseverance. Those qualities were evident to her quite early on. She recalls a time when he was involved in a venture with a business partner but without his knowledge the business suppliers were not being paid. John could have placed the company into liquidation but chose to pay the suppliers from his own savings while the other partner walked away. That decision strengthened his position in the industry.
Ms Romano is aware of the 7 May 2021 refusal notice and believes that the conduct referred to was completely out of character and an isolated incident unrepresentative of his character. She personally knew his ex-wife and can corroborate her controlling, erratic and abusive behaviour towards him. It was a turbulent emotional time in his life which she believes he is completely remorseful about. He is in a stable relationship, and together with his partner she sees him going from strength to strength.
Ms Rachel Wilmington JP is aware of the events surrounding the revocation of the applicant's firearms licence and the current licence application. She has known the Dattilo family since the 1970s when she attended school with Giovanni in a small farming community. In the past three years she has been in regular contact with Giovanni, on a weekly and often daily basis, and on a business and friendship level. At no time had she had reason to be concerned that he was not mentally stable. She had witnessed him under stress and in a down state from his relationship breakdown, but had never witnessed any form of aggression from him, even when things had gone wrong with business.
Ms Wilmington and Giovanni have many mutual friends and she has never heard anyone say a bad word about him if she mentioned his business name or his birth name. She personally finds that unusual as people generally have some form of negative judgment of people. That on its own was a testament to Giovanni's character.
The references are from persons who have known the applicant in varied capacities, in some instances for long periods extending back to childhood, and are quite detailed about his personal characteristics, business activities and involvement in community charities and welfare. They are from persons of diverse backgrounds, including two justices of the peace and a parish priest, and three of them were prepared to give oral evidence. Not all are fully acquainted with his background, but all are familiar with the 2018 Adina Apartments episode at Coogee and most know about his offensive behaviour at McDonald's on 27 February 2016.
They unanimously attribute his drug abuse, aggressive behaviour and psychotic outbursts to the period of marital breakdown with his ex-wife P**** between 2014 and 2018 and have observed since then that he has become settled and emotionally stable in his new relationship with R****. They have no concerns about his possession of firearms. The references can be accepted as evidence that the applicant has a good reputation in the community, has put his troubled past behind him and can be expected to act as a responsible member of the community.
The evidence suggests that since the dissolution of his marriage to P**** his mental state and conduct have improved markedly. He has ceased taking drugs, drinks only in moderation, and is in a stable familial relationship. There have been no further episodes of disorderly or aggressive conduct. He is not suffering from any mental disorder and does not represent a suicide risk.
The only reservation suggested by the evidence is the question of prognosis. Mr Kruger-Davis, commenting on the risk of relapse, cautioned that "Future risk is difficult to predict but would require significant changes that are not currently indicated". But past conduct can be a useful guide to future behaviour and the Adina Apartments breakdown was only four years ago. While nothing untoward has apparently occurred since then, one might feel some concern that the stresses of business and daily life could trigger a relapse into drug-taking, alcohol abuse and violent or disorderly behaviour. And there is also the matter of the confidential evidence.