EEN v Commissioner of Police, NSW Police Force

Jurisdiction

1. The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act).
2. Section 75(1)(c) of the Firearms Act confers jurisdiction on the Tribunal to review the decision to revoke the applicant's firearms licence.

The legislation

1. The underlying principles of the Firearms Act are stated in s 3(1) of the Act, and relevantly include: 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety: 1. by imposing strict controls on the possession and use of firearms, and 2. by promoting the safe and responsible storage and use of firearms.
2. Section 24 of the Firearms Act sets out the circumstances in which a licence may be revoked. It relevantly provides: 24 Revocation of licence … (2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or … (d) for any other reason prescribed by the regulations.
3. For the purposes of s 24(2)(d) of the Act, clause 20 of the Firearms Regulation 2017 (the Regulation) provides: The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
4. The Commissioner may issue or refuse a licence under s 11 of the Firearms Act. Section 11 relevantly provides: (3) A licence must not be issued unless: (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and … (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and … (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of: (a) the applicant's way of living or domestic circumstances, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind.
5. The Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest (s 11(7)).

Issues

1. The decision to revoke the firearms licence held by EEN was based on the finding that he had attempted suicide by insulin overdose on 29 January 2018 and that there is a risk that EEN may make future attempts on his life. The internal review decision was based on s24(2)(d) of the Firearms Act and cl 20 of the Firearms Regulation, that the Commissioner was satisfied it was not in the public interest for the applicant to continue to hold the licence.
2. On the administrative review, the Commissioner relied on s11(4)(b) and (c) of the Firearms Act, that is, that there is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of any previous attempt to commit suicide or cause a self inflicted injury, or his intemperate habits; on s 24(2)(d) of the Firearms Act and cl 20 of the Regulation, that it is not in the public interest for EEN to continue to hold a firearms licence; and on s 24(2)(c) of the Firearms Act, that EEN is not a fit and proper person to hold a firearms licence.
3. The Tribunal is required to determine, on the basis of the applicable law and the evidence before it, whether the decision to revoke the firearms licence is the correct and preferable decision. That requires the Tribunal to determine whether: 1. it is in the public interest for the applicant to continue to hold a firearms licence; 2. the applicant is a fit and proper person to hold a firearms licence; 3. there is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of previous attempts to commit suicide or his intemperate habits or being of unsound mind.

The Tribunal proceedings

1. The Commissioner relied on the following evidence: 1. Documents filed in accordance with s 58 of the ADR Act on 12 July 2019, including EEN's application for a licence, documents relating to the suspension and reinstatement of his licence in 2017, the decision to revoke the licence, and correspondence relating to the internal review (ex R1); 2. Documents obtained under summons from EEN's general practitioner, NSW Ambulance Service, the Hospital, and Medicare, filed on 8 November 2019 (ex R2).
2. The applicant relied on a written statement, and medical reports from his treating psychiatrist (17 September 2019), and his general practitioner (6 September 2019); a blood glucose meter report dated 3 October 2019; and a statement by a friend dated 3 October 2019 (ex A1).
3. In these reasons EEN's treating psychiatrist is referred to as "the Psychiatrist"; his general practitioner as "the GP"; his friend as "the Friend"; and the hospital to which EEN was admitted in 2014 and 2018 as "the Hospital".
4. The Psychiatrist produced documents in response to a summons issued at the request of the respondent. Orders were made to grant access (but not uplift or photocopy) to the respondent's legal representatives, and to require leave of the Tribunal for questions about certain matters referred to at paragraph [42] of EEN's statement, or to ask questions of the Psychiatrist about disclosures made by EEN about that matter.
5. The applicant, and the Psychiatrist, gave oral evidence at the hearing. The other witnesses were not required for cross examination.
6. Both parties provided written submissions. At the resumed hearing the Commissioner provided a transcript of the first day's hearing.

The Commissioner's case

1. The respondent contends that the decision to revoke the applicant's firearms licence is the correct and preferable decision, on the grounds that: 1. It is not in the public interest for the applicant to continue to hold a firearms licence; 2. The applicant is not a fit and proper person to hold a firearms licence; and 3. There is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of his previous attempts to commit suicide and his intemperate habits or being of unsound mind.
2. In support of the contention that there is reasonable cause to believe that the applicant may not exercise continuous and responsible control over firearms because of previous attempts to commit suicide, the Commissioner relies on the following: 1. EEN's admission to the Hospital on 27 December 2014, presenting with suicidal ideation and making statements that he was "over it" and had considered ending his life, telling his then wife that he did not want to live any more. He was assessed as suffering from depression, suicidal ideation and risk from alcohol withdrawal symptoms, and remained in hospital until discharged on 2 January 2015; 2. His admission to the Hospital on 23 January 2018, following attendance at his residence by NSW Ambulance Service in response to a call from a friend who had contacted the emergency services number saying EEN was having a "mental health breakdown". The attending ambulance officer recorded that EEN said "just shoot me" and "I don't want to be here". EEN was taken to the Hospital and assessed under the Mental Health Act, noted as having low mood and thoughts of suicide, heavy "ETOH" use, and at risk of suicide. He was discharged on 26 January 2018; 3. His admission to the Hospital on 29 January 2018 following attendance at his residence by NSW Ambulance responding to a call from an unknown person to the emergency services number stating concerns for his welfare. Ambulance officers noted that EEN was extremely distressed, wrote suicide/goodbye letters to friends and family, stated he would commit suicide by overdosing insulin, went to the bathroom and administered an unknown quantity of insulin, and had to be sedated and restrained in order to be conveyed to hospital. He was discharged on 30 January 2018.
3. The Commissioner relies in support of the contention that EEN has "intemperate habits" on his report on hospital admission on 27 December 2014 of drinking approximately 12 standard drinks of alcohol, 7 days a week, for "years"; his disclosure to the Psychiatrist of his levels of drinking, which the Commissioner contends is a clear history of alcohol abuse or excessive alcohol consumption; the record of a blood alcohol level of 0.27 on hospital admission on 29 January 2018; his concession in oral evidence that he consumed large amounts of alcohol; and the concern of his psychiatrist.
4. In support of the contention that it is not in the public interest that EEN have a firearms licence, the Commissioner relies on s 3(1) of the Firearms Act and the need to ensure public safety. The Commissioner accepts that there is no evidence that EEN poses a risk to others. The Commissioner submits that the applicant having access to firearms constitutes an appreciable risk to public safety and in particular a real risk to the applicant's own safety, relying on the following matters: 1. The applicant suffers from longstanding and treatment resistant Major Depressive Disorder; 2. The applicant suffers from Type 1 Diabetes; 3. The applicant has a history of alcohol abuse; 4. The applicant has been admitted to hospital on three separate occasions with suicidal ideation including direct threats to his life, and on one occasion on 29 January 2018 attempted to take his own life by intentionally overdosing on insulin; 5. The instances in which the applicant suffered from suicidal ideation are a result of his Major Depressive Disorder, and hypoglycaemia brought on by his Type 1 Diabetes, alcohol abuse, or a combination of two or more of those risk factors; and 6. Those risk factors have not abated and are unlikely to abate in the future.
5. The Commissioner relies in support of the contention that EEN is not a fit and proper person to hold a firearms licence on those considerations supporting the public interest contention, and that he has not always been honest in his dealings with the Firearms Registry having provided information in the application for a firearms licence that was untrue, namely his response to the personal history question.

EEN's case

1. EEN submits that he is a person of good character, with no prior criminal convictions, nor has he been the subject of an AVO, and he has made a substantial contribution to his local community. He has a history of compliance with the firearms legislation: apart from the misinterpretation of a question on the application, he has otherwise complied, including surrendering his firearms licence on 23 February 2017 when requested to do so by a police officer, complying with safekeeping requirements during an inspection conducted by police in May 2017, providing the keys to his firearms safe to his friend when requested to do so by ambulance officers on 23 January 2018, surrendering his firearms licence card on 5 February 2018 as requested by the Firearms Registry, providing signed medical authorities as requested by the Firearms Registry for the purposes of the internal review, and arranging a report from his psychiatrist addressing the questions asked by the Firearms Registry for the purpose of the internal review.
2. In his statement dated 3 October 2019 EEN summarised his educational and family background. He was previously married for 25 years and has three children with whom he has a close and loving relationship. The separation from his partner was a difficult time, and since that time they have moved on and have an amicable relationship. He has been a grazier for 18 years. He has no criminal convictions, however received a good behaviour bond in 2010 in relation to a low range drink driving offence. He has never been the subject of an Apprehended Violence Order.
3. In relation to his answer to the personal history question on the application form, he made a mistake, and answered "No" because he "…believed it was limited to events in the last 12 months". He had previously received treatment for a mental illness, however that was more than 12 months before submitting the application. He provided the requested report from his psychiatrist, and the suspension of his firearms licence was lifted.
4. In May 2017 he acquired a .22 calibre rifle, which was seldom used with the exception of controlling feral animals and on the odd occasion to attend an animal welfare issue concerning domestic farm animals or badly injured wildlife.
5. He was diagnosed with Type 1 Diabetes in June 1992 at the age of 26. He receives treatment from his GP and a specialist endocrinologist. He manages his diabetes through frequent monitoring of his blood sugar levels and since 2011 with the use of an insulin pump. Over the past 27 years he has had only two HBA1C reading over 7, and they are otherwise between 5.8 and 6.8, which is exceptional diabetic control. He has an acute awareness of the onset of hypoglycaemia which enables him to take rapid action to prevent unconsciousness. In support of his application EEN had downloaded and printed a blood glucose meter report, which shows that over the last month he has experienced 25 episodes of low blood sugar levels, which he stated are deficits quickly treated and balance restored with the administration of an appropriate level of glucose.
6. He was formally diagnosed with depression in 2002. In 2014, while the Royal Commission into Institutional Responses to Child Sex Abuse was being conducted, the daily reports of abuse opened up old wounds for him, having been sexually abused as a student at school. He had a breakdown in December 2014 which resulted in hospital admission. He subsequently took legal action against the school and reached an out of court settlement in 2016. He has subsequently sought and received appropriate treatment for his mental illness, from his GP and psychiatrist.
7. He started consultations with his psychiatrist in November 2014, and treatment has included medication (duloxetine) and psychotherapy, and he has been taught strategies to prevent any relapse of his depressive condition.
8. EEN discussed the circumstances of his hospital admissions on 23 January 2018 and 29 January 2018. On 23 January 2018 he felt extremely unwell on waking and called his friend, a neighbour. He asked his friend to call an ambulance, as he was on his own at the farm and did not feel he could look after himself. His friend called the emergency number; and at the request of the operator, he told his friend of the location of the keys for the firearms safe. He was treated at hospital for electrolyte imbalances (hyponatraemia). He was assessed by the mental health team who determined he was not at risk to himself or others, and was discharged on 26 January 2018.
9. EEN denied he was depressed and actively suicidal at that time, and states that he was suffering from hyponatremia, a condition that caused him to become disorientated and agitated. At no stage did he threaten suicide nor was he experiencing suicidal ideation. It was his friend who informed the operator that he believed EEN was having a breakdown. He was emotional, not because of the separation from his wife (which had been some 21 months earlier) but because of his state of confusion. He recalled saying something to the ambulance officers to the effect of "Shoot me, just put me down, I need to go for a big sleep": he was tired and used that turn of phrase in the Australian vernacular to indicate he was feeling unwell.
10. On 29 January 2018 he was upset and hurt by text messages he had received from his former wife on 28 January 2018 threatening to withdraw access to his children, which had followed an argument with his son on the evening of 27 January 2018. He called his friend late in the afternoon of 29 January 2018 and asked him to come and see him. That evening, while his friend was there, two police officers attended stating they were responding to an anonymous call to check on his welfare. He recalled telling the police they had already confiscated his firearm and if he really wanted to commit suicide he could do so easily by using insulin. He temporarily left the officers to use the bathroom and while there the alarm went off on his insulin pump. On emerging from the bathroom an officer accused him of deliberately trying to administer insulin to commit suicide. He became agitated by the allegation. He was placed on a stretcher and tied down and the ambulance officers disconnected his pump. He would not have presented with symptoms of hypoglycaemia on presentation at the Hospital if he had had the opportunity to treat his insulin levels before he was conveyed to hospital.
11. In oral evidence EEN was questioned about his alcohol consumption. He stated that he did not recall the statements as to the level of consumption recorded in the hospital notes on 27 December 2014 of 12 standard drinks of alcohol 7 days a week for "years", accepting that he may well have made the statement. He has from time to time consumed alcohol, more than 10 drinks on one or two occasions; he has had significant periods of abstinence as well. Information recorded in the notes for the 23 January 2018 admission of "heavy ETOH use" was transferred from previous patient medical history. He did not recall being well affected by alcohol on 29 January 2018, and his recollection was that he had consumed some alcohol. He lives out of town and has to drive into town almost every day, and if he had a persistent intemperate habit he would not be able to function. He is very cognisant of the fact that living out of town, if he does not have a licence he cannot live out of town.
12. In response to questions about the 29 January 2018 admission, EEN stated that his reference to "take me out back and shoot me" was use of Australian vernacular. He denied the record of attempting to overdose on insulin while in the bathroom, stating that the only indication that something happened was the alarm sounding on his insulin pump. Pump alarms sound for a variety of reasons, including two hours after a meal, when batteries are low, when insulin or blood sugar levels get low; the remaining level of insulin was probably the reason for the pump going off in the bathroom. The blood sugar level recorded was 4, and the report over a three month period showed 67 times of low blood sugar levels at any time of the day, which happens with totally controlled diabetes. If he had taken 100 units of insulin he would have been dead.

Medical evidence

1. Three reports by EEN's treating psychiatrist are in evidence. In the report dated 9 March 2017, provided in response to the suspension of the firearms licence in 2017, the Psychiatrist stated that he had treated EEN for Major Depressive Disorder and he was currently in remission. He stated that EEN was prescribed Duloxetine 180mg daily, which does not affect his alertness or ability to drive a motor vehicle or operate machinery. His opinion was that there is not a current risk that EEN's condition or impairment may impact on his ability to exercise continuous or responsible control over firearms. The Psychiatrist stated that EEN was admitted to hospital in 2014 for treatment in the context of being severely depressed and untreated, he sought appropriate treatment for his illness and responded accordingly; he is not likely to relapse as he has been treated for the condition. He has never previously posed a safety risk and his condition does not have the current potential to put public safety at risk.
2. In the report dated 11 March 2019, provided as part of the internal review application (clarified in oral evidence to be in relation to the hospital admission on 23 January 2018), the Psychiatrist stated that at the time the ambulance officers attended EEN was almost certainly suffering an acute delusional state. He is vulnerable to metabolic disturbance and was suffering a delirium; his symptoms rapidly resolved on stabilising of his metabolites. The Psychiatrist stated that there have been times when EEN has been medically unwell and it is during those times that his cognition has fluctuated slightly. The Psychiatrist stated that EEN's current mental health will not readily impact on his ability to exercise continuous or responsible control of firearms, and his possession and use of firearms would cause no risk to public safety.
3. In his report of 17 September 2019, prepared for the purpose of these proceedings, the Psychiatrist stated that he reviewed EEN on 28 January 2018 and understood from the admitting physicians that he had an electrolyte disturbance associated with his diabetes and an associated acute confusional state. He was asked to comment on whether EEN's behaviours on 23 and 29 January 2018 posed a threat to his personal safety, and stated that EEN had never displayed any intent to harm himself with a .22 calibre rifle; and he has access to insulin and if he wanted to end his life peacefully he could do so within minutes. EEN has good survival instincts and he does not appear to have any chronic or acute suicidal intent. The Psychiatrist did not have a concern for the safety of EEN or the public if similar incidences occurred to those reported on 23 and 29 January 2018: he has multiple health issues associated with Type 1 diabetes, and his electrolyte imbalance and acute confusional state are an example of that. EEN does not currently have a dependence on alcohol, and while he has a long history of alcohol use he has not been alcohol dependent. The Psychiatrist's conclusion was as follows: I have been treating [EEN] since 21.11.2014. He was diagnosed with depression in the context of childhood trauma, his condition has not impaired his fitness to possess firearms. He is treated with Duloxetine, an anti-depressant. This does not affect his alertness. He is adherent to treatment and is well aware of the benefits of ongoing treatment. [EEN] is not currently a risk in the context of impairment associated with low mood. His history does not affect his ability to exercise continuous or responsible control over firearms. He has had responsibility of a farm in the past. [EEN] currently has the ability to form a rational judgment to exercise willpower to control physical acts in accordance with a rational judgment. He has clearly suffered from physical illnesses which have affected his cognition in the past. This is a risk associated with Type 1 Diabetes. His mood disorder is under good control and he does not have the potential to put public safety at risk if he were to have possession of firearms, he has never posed such a safety risk.
4. In oral evidence the Psychiatrist confirmed this assessment of EEN. The Psychiatrist stated that he initially diagnosed EEN with Major depressive disorder with dysthymic disorder and prominent features of alcohol use disorder, and subsequently when the trauma was disclosed, the diagnosis was revised to depressive disorder comorbid with or secondary to post traumatic stress disorder.
5. In response to questions about EEN's alcohol use, the Psychiatrist stated that he had had to change a lot of information once the diagnosis of PTSD was established. The diagnosis "alcohol dependence" is now defunct, and subsumed in the broader definition of "alcohol use". EEN was drinking, and using the former definitions he is of the opinion that EEN suffers from alcohol abuse, not alcohol dependence, because he was running into trouble with his marriage. A diagnosis of alcohol dependence involves physiological symptoms of tolerance and withdrawal, and EEN had not displayed those. The focus of managing EEN's drinking has been treating his mood disorder; he started on a very high dose of anti-depressants and was very depressed and is now on 60mg of Duloxetine and is much better. EEN is now in remission in relation to his mood disorder, and his drinking has correspondingly decreased.
6. The Psychiatrist stated that the issue is the volume of liquid EEN drinks, 12 cans of low alcohol beer and the same thing with soft drink. The Psychiatrist believes this is related to the diabetes, and is an unusual form of a condition called SIADH, a syndrome with inappropriate antidiuretic hormone secretion; and it results in a drop in sodium levels. The real problem is the level of fluid intake, which is almost certainly what precipitated the episode of hyponatremia. One of the causes of SIADH is antidepressants. He and the endocrinologist have been trying to sort this out and the goal is eventually to get EEN off antidepressants altogether with the specific intention of reducing his fluid intake.
7. The Psychiatrist stated that EEN's hospital admission on 23 January 2018 was in relation to hyponatremia and not his mental condition. On that evening he was distressed and sought help, which resulted in his being taken to hospital, which made him more distressed. The Psychiatrist spoke to the cardiologist and that was when he found out about the sodium levels. EEN was physically unwell and confused. Early stages of hyponatremia lead to apathy, muscle weakness and general discomfort and as it progresses, to confusion. Hyponatremia is diagnosed through a blood test. Someone suffering from hyponatremia may feel extremely unwell to the point that they may not want to live. He believed that EEN was very unwell and would have felt terrible.
8. The Psychiatrist stated that in his opinion EEN was always a low suicide risk. He agreed that if EEN had suicidal ideation, and was intoxicated and unable to exercise rational thought, that could increase the risk. EEN's resilience has improved, and he did not think EEN would now qualify for the diagnosis of PTSD: he has major depressive disorder in remission. The risk was always very low to minimal. EEN has expressed suicidal ideation but that does not mean he is at particular high risk of actually acting on those ideations. The Psychiatrist agreed that if he had in fact acted on that, his opinion in that regard would have to change.
9. In re-examination the Psychiatrist stated that on 29 January 2018 EEN was still recovering from the acute episode of hyponatremia, he was still exhausted, and there was no evidence of any additional risk. He saw EEN on 1 February and he did not exhibit signs of someone who had been through a deliberate and serious attempt to take their own life, rather he was annoyed by the way he was treated. The usual appointment time for EEN is mid morning, 9.30 or 10.00 or 10.30: EEN does not present as someone visibly hungover showing signs of alcohol withdrawal or noticeably smelling of alcohol. In response to a question the Psychiatrist stated that in psychiatry there are two tests for a person to be of "unsound mind": the first is functional, an impairment in social and occupational functioning, and the other is the issue of suffering. The one issue for EEN was that his suffering had driven him into treatment.
10. Additional medical evidence from EEN's GP, in a report dated 6 September 2019, is that the levels of sodium and calcium recorded for EEN on blood tests taken at the hospital on 23 January 2018 indicated a metabolic disturbance. In her opinion there is a causal relationship between the metabolic disturbance and the behaviour demonstrated by EEN at the time, as the type of metabolic disturbance can be a causative factor in the development of acute confusion and delirium. In an earlier report provided for the internal review dated 24 March 2019 the GP stated in relation to the 29 January 2018 admission, that insulin pumps make many different alarms during the day to alert either users to a variety of factors, and it would not be possible to tell by hearing an alarm that a pump user was attempting to overdose with insulin.
11. A report from an endocrinologist in the Endocrinology clinic attended by EEN dated 1 March 2019 confirms that EEN has a high degree of self motivation in managing his blood glucose levels and has achieved excellent control of his diabetes as a result.

Other evidence

1. EEN provided a written statement (dated 3 October 2019) by the friend who lives on the neighbouring property. That statement confirms that the Friend visited EEN on 23 January 2018 and found him sobbing and not making sense: he knew EEN was having a divorce and he thought he was having a breakdown. He called 000, the nurses arrived and took EEN to hospital. At no stage did he recall EEN saying that he was suicidal, nor can he recall EEN saying that to the nurses. On 29 January he visited EEN at his home, and again he was not well, he was incoherent and not making sense. Ambulance and police officers arrived and after a scuffle police eventually forced EEN onto a stretcher and into the ambulance. There were beer cans in the property, as he and EEN had had a drink a day or two beforehand: the VB cans were his and the Tooheys cans were EEN's, and he did not observe EEN drinking any alcohol on 29 January 2018. EEN did not say anything to him about wanting to commit suicide and he did not observe him pushing the dispenser on his insulin pump. Those days were the only time he has observed EEN behave this way. He has been with him and observed when his sugar levels reduce, and he can become confused and agitated however is able to quickly correct this and is back to normal. He has observed that EEN is cautious when using firearms and otherwise keeps his gun in a locked safe at all times. He has not observed EEN doing or saying anything inappropriate or unsafe in relation to firearms.

Discussion and findings

1. It is not in dispute that EEN was diagnosed with Type 1 diabetes in 1995, which he has managed since 2011 with continuous insulin infusion under the skin via an insulin pump. The endocrinologist and EEN's GP confirm that EEN manages his diabetes well. The blood glucose meter report provided by EEN confirms his oral evidence that he maintains levels within an appropriate range, with occasional drops to which he responds with glucose.
2. The Medicare records in evidence confirm that EEN is currently prescribed duloxetine, and has previously been prescribed naltrexone on several occasions in 2016, 2017 and 2018, acamprosate in October 2018, and diazepam in 2016 and 2017.
3. The respondent accepts that there is no evidence that EEN poses a risk to others. There is no evidence that he has ever misused, or threatened to misuse, firearms, or threatened to misuse firearms in any way. There is no evidence that he has not kept proper control of his rifle before it was surrendered and the licence revoked.
4. It is not in dispute that EEN was first diagnosed with a depressive disorder in 2002. His evidence was that this was at a time when he was working overseas, and having marital difficulties. He has been treated by the Psychiatrist since November 2014. His evidence that he sees the Psychiatrist normally once a week, sometimes two to three weeks in between and on occasion more frequently, sometimes twice a week, was not disputed.
5. The Tribunal accepts the evidence of the Psychiatrist in his assessment of the risk posed by EEN to public safety if given access to a firearm. The Psychiatrist has had extensive and regular contact with EEN over a 5 year period, with an estimated 210 consultations. His evidence that as a qualified psychiatrist he has treated hyponatremia, and routinely does electrolyte levels for his patients, was not disputed. While not present on either 23 or 29 January 2018, his evidence that he spoke to the doctors involved with EEN's care on the first admission and saw him on 28 January 2018, and that he saw EEN on 1 February 2018 after the second admission, was not disputed. Based on that extensive and extended history of ongoing treatment and management, the Tribunal accepts the Psychiatrist's evidence that: 1. The initial diagnosis of Major depressive disorder with dysthymic disorder and prominent features of alcohol use disorder, was revised after the trauma was disclosed, to depressive disorder comorbid with or secondary to post traumatic stress disorder; 2. EEN is in remission in relation to his mood disorder and he is very stable in relation to his mood disorder, and the dose of anti-depressants has decreased; 3. EEN suffers from alcohol abuse and not alcohol dependence. The Psychiatrist has concerns as to the extent of EEN's alcohol consumption, and has prescribed naltrexone which is effective to reduce the amount of reward experienced from alcohol, and acamprosate to reduce cravings. His concern is with the level of fluid intake; and 4. The significant issue is with EEN's fluid consumption, because the loss of sodium caused the problem with electrolyte levels. The amount of fluid EEN is consuming is more relevant with half strength beers in terms of the effect on his health than the actual alcohol he is consuming because of the drop in sodium levels.
6. The evidence of the GP, based on the blood test results recorded on the hospital admission of 23 January 2018, was that at that time electrolyte abnormalities (lowered sodium and calcium) would cause impaired cognition and behaviour disturbance, and acute confusion or delirium. That evidence was consistent with the assessment of the Psychiatrist that EEN's behaviour at that time was attributable to his being physically unwell, and not to his mental health. EEN does not deny that he made the comments recorded which resulted in genuine concerns for his safety, and the Tribunal accepts the evidence of the Psychiatrist that if EEN was feeling like he wanted to die at the time it was because he was very sick, and it was a physical illness.
7. The NSW Ambulance Service records confirm that the attendance by police and ambulance officers at EEN's residence on 29 January 2018 was prompted by an anonymous report that EEN was threatening suicide, had access to guns, and it was possible he was violent. The COPS Event record for the attendance by NSW police officers on that occasion records that police spoke to EEN until ambulance officers arrived; and that the paramedics determined that he was at high risk of committing suicide and should be taken to hospital. The entry records that EEN "stated that he was going to commit suicide the night before but did not due to not having his affairs in order yet", that "Police believe during this time the POI has pressed the button on his automatic insulin dispenser an unknown amount of times in an attempt to commit suicide", and that "Police observed that the POI was well affected by alcohol and there were a number of beer cans around the kitchen". The ambulance records include the statement that EEN was on that occasion "extremely distressed, irrational thoughts", and that he went to the toilet and "injected ?bolus insulin via pump". Glucose was administered on the way to the hospital.
8. EEN denied saying on 29 January 2018 that he would commit suicide, and denied that he had attempted to overdose on insulin. The Tribunal accepts the ambulance officers' record that EEN was extremely distressed, and there were concerns for his safety. However, there is no first hand observation of what occurred in the bathroom after police and ambulance officers arrived. EEN was released into his own care on the following day after assessment by the hospital psychiatric registrar, which supports his evidence that he was not then at risk of suicide. The GP confirmed that it would not be possible to tell by hearing an alarm that a pump user was attempting to overdose with insulin. Based on that evidence, the Tribunal is not satisfied that it has been established that EEN attempted suicide by overdose of insulin on 29 January 2018. The Tribunal accepts the evidence of the Psychiatrist, who saw EEN shortly after the incident, that EEN was on that occasion distressed and had sought some help from his friend, and that resulted in his being taken to hospital which made him more distressed.
9. The Tribunal finds that at times EEN has consumed alcohol in significant quantities. The Psychiatrist has recorded EEN's alcohol consumption as 20 standard drinks (July 2019), 5-10 standard drinks daily (January 2019), and 8-10 drinks (August 2018). There is the record on the hospital admission in 2014 of him drinking the equivalent of 12 standard drinks 7 days per week for years. The Tribunal notes that EEN disputes that record, stating it would not have been feasible for him to work as a consultant and run a farm and support a family if that were the case, however it is not inconsistent with the levels recorded by the Psychiatrist. On admission to hospital on 29 January 2018 EEN's blood alcohol level was 0.27, which the Psychiatrist agreed in oral evidence was a high reading, at which capacity for rational thought would be affected, and clearly was a binge.
10. While those records indicate a very high level of alcohol consumption, the Psychiatrist in oral evidence confirmed that EEN had not displayed physiological symptoms of tolerance and withdrawal, which would be an indicator of alcohol dependence, or displayed signs of intoxication in his regular consultations. The hospital records in evidence indicate that during the hospital admission between 27 to 30 December 2014 EEN was monitored for signs of alcohol withdrawal, with no record on any of the indicators.
11. The Psychiatrist was asked whether if a person is significantly intoxicated and capacity for rational thought affected and is displaying suicidal ideation as a result of depressive illness, the person would be more likely to act on that ideation. His response was that rather than a general statement of risk, the specific individual had to be considered, and in his opinion as a consultant psychiatrist who has known EEN for a long time he was always a low suicide risk. The Tribunal accepts that evidence.

Public Interest

1. Considering first the issue of whether it is not in the public interest for EEN to continue to hold a firearms licence, the Tribunal notes that the "public interest" is an inherently broad concept, which requires "a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and scope and purpose of the legislation might require": Laing v Commissioner of Police New South Wales Police Force [2017] NSWCATAD 315 at [31], citing O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13].
2. Section 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety: accordingly, the community's interests take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 Deputy President Hennessy said that in terms of public safety: 27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.
3. That case dealt with whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130] - [134].
4. In assessing risk, all the circumstances, including attitudes, character and prior conduct should be taken into account, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] - [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public, as opposed to a minimal, fanciful or theoretical risk: Webb v Commissioner of Police NSW Police Service [2004] NSWADT 110. Public safety includes the safety of the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].
5. The public interest also requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30 at [34]. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25].
6. The factors on which the Commissioner relies in support of the contention that EEN having access to firearms constitutes an appreciable risk to public safety and in particular a real risk to his own safety, are that: 1. The applicant suffers from longstanding and treatment resistant Major Depressive Disorder; 2. The applicant suffers from Type 1 Diabetes; 3. The applicant has a history of alcohol abuse; 4. The applicant has been admitted to hospital on three separate occasions with suicidal ideation including direct threats to his life, and on 29 January 2018 attempted to take his own life by intentionally overdosing on insulin; 5. The instances in which the applicant suffered from suicidal ideation are a result of his Major Depressive Disorder, and hypoglycaemia brought on by his Type 1 Diabetes, alcohol abuse, or a combination of two or more of those risk factors; and 6. Those risk factors have not abated and are unlikely to abate in the future.
7. The Commissioner accepts that there is no evidence of any risk posed to the safety of others if EEN has access to a firearm: the issue is whether he is at risk of self harm. As recorded above, there is no dispute as to EEN's history of depressive illness, or that he was admitted to hospital with significant concerns for his mental state in 2014 and twice in January 2018. However, there is no indication in any of the evidence, which includes records of attending ambulance and police officers and hospital observations, that EEN at any stage contemplated self harm using a firearm.
8. In considering whether there is a real and appreciable risk if EEN has access to a firearm, the Tribunal places significant weight on the evidence of the Psychiatrist. The Psychiatrist has been treating EEN for five years, with regular consultations. His oral evidence was carefully given, and his opinion that EEN has always been at low risk was maintained under cross examination. The Psychiatrist agreed that if EEN had made an attempt on his life, his opinion that the risk of self harm was always very low to minimal would have to change (Transcript p 44); and that if EEN had in fact acted on his suicidal ideation, that his opinion that expression of suicidal ideation did not mean that he was at high risk of actually acting on those ideations would have to change (Transcript p 51). Both concessions were appropriate in the context, and neither detracted from the firmly expressed opinion that EEN is not a risk.
9. The Tribunal is not satisfied that it can be said that it is not in the public interest for EEN to continue to hold a firearms licence.

Fit and proper

1. The Commissioner also relies on s 24(2)(c) of the Firearms Act, that EEN is no longer a fit and proper person to hold a licence. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (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.
2. 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. 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 at [37]. The test for whether a person is fit and proper is guided by similar considerations to those applying to the "public interest": Green v Commissioner of Police, NSW Police Force [2014] NSWCATAD 59 at [72]-[79]. 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 at [22].
3. The considerations relevant to cl 20 of the Firearms Regulation, applicable by virtue of s 24(2)(d) of the Firearms Act, are addressed above. The Commissioner submits that EEN's explanation for the incorrect answer to the personal history question on his application for a firearms licence should not be accepted, noting that provision of information that is false or misleading in a material particular is an offence under s 70 of the Firearms Act and constitutes an additional ground for revocation of the licence under s 24(2)(b)(i) and (ii) of the Firearms Act.
4. The Tribunal notes that the hospital admission in 2014 was outside the 12 months specified. The Medicare records confirm that EEN was, within the 12 months period before the application made in November 2016, prescribed an anti-depressant, naltrexone and acamprosate, and diazepam, and he was receiving treatment by the Psychiatrist. The Tribunal accepts that depending on how the terms "alcoholism" and "a mental or nervous disorder or illness" are construed, EEN's answer to the personal history question was incorrect. However, the offence provision in s 70 of the Firearms Act requires that the person "knows" that the statement or information is false or misleading in a material particular; and s 24(2)(b)(i) also requires that information supplied in or in connection with an application was "(to the licensee's knowledge) false or misleading" in a material particular.
5. EEN was not cross examined on his statement that he made a mistake when completing the form. The Tribunal acknowledges that the time for cross examination both of EEN and the Psychiatrist was limited, however, the time available for each party was discussed with and agreed upon by both EEN and the Commissioner's representative. In the absence of cross examination on that issue, the Tribunal does not find that there was a deliberate or intentional attempt to mislead the Firearms Registry on this issue.
6. The Tribunal is not persuaded that EEN is no longer a fit and proper person to hold a licence.

Section 11(4)

1. Section 11(4) of the Firearms Act requires the Tribunal to determine whether there is "reasonable cause to believe" that the applicant may not personally exercise continuous and responsible control over firearms because of one of the factors specified.
2. For there to be "reasonable cause to believe" requires objective grounds for the belief: Laing v Commissioner of Police NSW Police Force [2017] NSWCATAD 315 at [40]. In Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013 at [10] Emmett J said that the words "reasonable cause to believe": …are not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief. It is not necessary to demonstrate whether or not the applicant has the belief.
3. The Commissioner submits that the objective grounds supporting a belief that EEN may not exercise responsible control over firearms are that he has attempted to commit suicide, he has repeatedly considered suicide, and his assertions that his mental and physical health conditions that gave rise to acute incidents of suicidal ideation have resolved should not be accepted having regard to the recurring nature of these events and the recentness of the January 2018 incidents.
4. For the reasons above the Tribunal finds that while EEN has a longstanding mental health condition, and has expressed suicidal thoughts on more than one occasion, as recently as two years ago, the evidence does not establish that EEN has attempted to commit suicide or cause a self-inflicted injury. The evidence of the Psychiatrist and the GP confirm that there was a physiological explanation for EEN's behaviour and statements in January 2018. There is no evidence that EEN has ever misused firearms, or threatened to misuse firearms in any way, and he has not threatened to harm either himself or any other person with a firearm. There is no evidence that he has not kept proper control of his rifle before it was surrendered and the licence revoked. While EEN has a mental health condition, the evidence does not suggest that that mental condition has the potential to put public safety at risk if he has the possession or use of a firearm, such that he could be regarded as being "of unsound mind": Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 185; AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5. The Tribunal acknowledges that the high levels of alcohol consumption recorded at times mean that EEN has demonstrated "intemperate habits". However, the Tribunal is not satisfied that as a consequence of those intemperate habits there is reasonable cause to believe that he may not personally exercise continuous and responsible control over firearms. The Tribunal accepts the evidence of the Psychiatrist that EEN does not have the potential to put public safety at risk if he were to have possession of a firearm.
5. The Tribunal is not satisfied that there is reasonable cause to believe that EEN may not personally exercise continuous and responsible control over firearms because of the factors specified in s 11(4) of the Firearms Act.

Conclusion

1. The Tribunal is not satisfied that it is not in the public interest for EEN to continue to hold a firearms licence, or that he is no longer a fit and proper person to hold a licence. The Tribunal is not satisfied that it can properly be concluded that there is reasonable cause to believe that EEN may not personally exercise continuous and responsible control over firearms because of the matters provided in s 11(4)(b) or (c) of the Firearms Act.
2. It follows that the correct and preferable decision is to set aside the decision of the Commissioner to revoke EEN's firearm licence. The effect of that decision is that EEN's Category AB firearms licence is reinstated to 14 March 2022, the term of the original grant. The order of the Tribunal is: 1. The decision of the Commissioner of Police NSW Police Force made on 18 October 2018 and affirmed on internal review on 8 April 2019 to revoke the firearms licence held by the applicant is set aside.

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: 23 March 2020