Ellicott v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-05-24

ce Force (Respondent) Representation: Solicitors: Applicant (Self-represented) McCullough Robertson Lawyers (Respondent) File Number(s): 2022/00372356 Publication restriction: 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 of these proceedings, including confidential exhibit CR2 and any evidence given during the confidential hearing, is prohibited, and the contents of all paragraphs in these reasons marked "[NOT FOR PUBLICATION]" are not to be published or released to the Applicant.

REASONS FOR DECISION

This is an application by Christopher Lee Ellicott (the Applicant) seeking review of a decision made by the Commissioner of Police, NSW Police Force (the Respondent) to refuse his application for a Category AB firearms licence (the Application) under the Firearms Act 1996 (the Act). The Application was made on 18 May 2021 and the decision to refuse the Application was made on 10 February 2022. The refusal was based on the Applicant's ongoing mental health disorder and the Respondent's view that the issue of a licence was not in the public interest.
On 17 March 2022, an internal review of the decision was sought on behalf of the Applicant. The Applicant was not notified of the outcome within the timeframe required by the Administrative Decisions Review Act 1997 (the ADR Act). However, on 14 November 2022 a delegate of the Respondent conducted an internal review and affirmed the decision to refuse the Application. The Applicant applied to this Tribunal for review on 9 December 2022.

Applicable legislation

The general principles and objects of the Act are set out in s 3 as follows: (1) The underlying principles of this Act are - (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety - (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows - (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner,
Section 11 of the Act sets out a range of circumstances where a licence must not be issued, including s 11(3)(a) as follows: (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,
Section 11(7) of the Act provides that despite any other provision of s 11, "the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest".

Confidential material

On 15 March 2023, following a hearing pursuant to s 49 of the Civil and Administrative Tribunal Act 2013, Senior Member Ransome made orders pursuant to s 59 of the Administrative Decisions Review Act 1997 (the ADR Act) that the Respondent was not required to lodge copies of the Confidential Material as specified in the Confidential Statement with the Tribunal in accordance with s 58 of the ADR Act. She also made a number of orders pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (the CAT Act).

The evidence

The matter was heard on 24 May 2023. The Respondent did not call any oral evidence and relied on the s 58 documents (exhibit R1). The Applicant relied on the document entitled "Evidence and Submissions" filed by him on 29 March 2023 and as was evident from the title, the document contained a mixture of evidence and submissions. There was no objection by Mr Roberts, the solicitor for the Respondent to the document being tendered (exhibit A1) subject to a distinction being made between the evidence and the submissions.
The Applicant also relied upon the following documents: 1. A report of Dr Hemant Sharma dated 15 December 2022 (exhibit A2); 2. A letter from Dr Nicholas Martin, General Practitioner, dated 23 September 2021 (exhibit A3); 3. A report from Ms Lisa Hanson, Clinical Psychologist, dated 5 December 2021 (exhibit A4); 4. A report from Dr Sharma dated 20 March 2023 (exhibit A5); 5. A reference from Mr Stephen Innes dated 27 January 2023 (exhibit A6); 6. A reference from Mr Michael Birtles DSC dated 27 January 2023 (exhibit A7); 7. A reference from Mr Nick Dametto MP dated 7 February 2023 (exhibit A8); 8. A reference from the Applicant's ex-partner dated 21 March 2023 (A9); and 9. The internal review request made on his behalf by Ms Hanson on 6 March 2022 and this material was also included in the Respondent's s 58 documents.
The Applicant's documents were admitted without objection and subject to submissions on the weight to be afforded to them. The Applicant gave evidence and was cross-examined.

Confidential evidence

Following the public hearing in this matter, a Confidential Hearing was held. The Respondent tendered confidential evidence (exhibit CR2) and relied on confidential submissions. The orders previously made by Senior Member Ransome under s 64 of the CAT Act continued in force.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]

Respondent's submissions

Written submissions were filed on behalf of the Respondent on 6 April 2023 and Mr Roberts made oral submissions at the hearing. The Respondent submitted that the Tribunal should affirm the decision to refuse the Application. In summary, the Respondent submitted that the decision to refuse the Application is the correct and preferable decision because pursuant to s 11(7) of the Act the Respondent considers, and the Tribunal should also consider, that issuing the licence would be contrary to the public interest in light of the Applicant's: 1. mental health; 2. repeated involvement in conduct that resulted in six Interim Apprehended Violence Orders (IAVOs) and one Apprehended Violence Order (AVO); and 3. provision of false or misleading information in his Application .
In addition, the Respondent submitted that pursuant to s 11(3)(a) of the Act, the Respondent could not be, and the Tribunal should not be, satisfied that the Applicant is a fit and proper person to hold a licence and be trusted to have possession of firearms without danger to public safety or to the peace.
In his oral submissions, Mr Roberts reiterated a number of the matters contained in the Respondent's written submissions. Mr Roberts submitted that by itself, the false statement made by the Applicant in his Application regardless of the domestic violence matters and mental health issues, was sufficient to justify the refusal of a firearms licence in this matter. The Respondent also relied on the confidential submissions filed on a confidential basis in the matter.

Applicant's submissions

The Applicant relied upon the submissions contained in the Evidence and Submissions document filed by him on 29 March 2023. He submitted that the current status of his psychological health is provided in the reports from Dr Martin, Ms Hanson and his psychiatrist Dr Sharma and that the reports acknowledge his stable mental health status; his ongoing treatment with medication for a long period of time; that he does not appear to meet the criteria for major depressive disorder or alcohol dependence; that he has learnt new coping skills and that he attends psychological counselling regularly. He submitted that in Dr Sharma's expert opinion as a psychiatrist, there is no real risk to public and individual safety if the Applicant was to be issued a firearms licence.
Whilst the Applicant acknowledged that he had provided a false response in his Application in relation to whether he had been referred or treated for a mental or nervous disorder or illness in the previous 12 months, he stated that it was an isolated error and out of character for him. He submitted that the character references affirm that he is generally an honest person.
He submitted that the initial five interim protection orders issued against him were of short duration, usually lasting for a few weeks and expired without any breach of the order and were in the context of a fractious relationship with an ex-partner. He submitted that the interim AVO taken out by another ex-partner in 2014 was subsequently withdrawn. The Applicant submitted that based on all the evidence, and taking a balanced view of risk, there is no reasonable cause to believe that he may not personally exercise continuous and responsible control over firearms or that he posed a threat to public safety.
In oral submissions, the Applicant submitted that it was not correct to say that the report of his clinical psychologist was vague. He submitted that it had never been reported that he had said that he was going to commit suicide and accordingly, there was no chance of relapse as he had never had a plan in place. He submitted that he was well treated and did not see any issues moving forward and that there was no possibility of relapses. He submitted that in relation to the drink driving, this was not an issue as he does not drink anymore, and he has been a non-drinker for around 14 months.
The Applicant submitted that he had held a firearms licence in Queensland for a lengthy period of time and was a fit and proper person. He is a DVA pensioner as the result of his war time injuries and that with the extra time on his hands he does a lot of voluntary work around where he lives. This helps with his mental health as he knows he is helping other people. He submitted that he is passionate about having his firearms licence and that it is very important to him. He said that shooting had been a sport of his before he joined the army and had been enhanced when he was in the military. After leaving the army, it gave him something to look forward to and gave him structure and kept a high amount of discipline in his life. He said that he does not want to just be a shooter but that he would like to help the community and to be a range control officer, helping other shooters.
The Applicant confirmed that he no longer holds a firearms licence in Queensland and that his firearms are in secure storage.

Role of the Tribunal

Section 75(1)(a) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the ADR Act. Section 63 of the ADR Act provides that in determining an application for review, the tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 [28-30], [34]. In an application for review the tribunal is not restricted to consideration of the material that was before the decision maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

Issues

As referred to above, the Respondent submits that the issue of a firearms licence to the Applicant would be contrary to the public interest and that the Applicant is not a fit and proper person to hold a firearms licence.

Public Interest

The phrase "public interest" is not defined in the Act. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms: [A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said: The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include 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, [33]. In the present context and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety. The Applicant's personal interest in obtaining a licence is subordinate to the public interest in ensuring public safety.
In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] (Ward) said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" at [7].
Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].

Applicant's mental health

The Applicant disclosed in his Application that he is a Pensioner and the holder of a Department of Veterans' Affairs (DVA) Health Care Card. He answered "No" to the question "Have you, in the past 12 months, been referred or treated for a mental or nervous disorder of illness". There is a letter (part exhibit R1) dated 11 October 2021 to the Applicant from the NSW Firearms Registry (Firearms Registry) enclosing a mental health questionnaire to be completed by a psychologist or psychiatrist of the Applicant's choice. It appears that on 10 October 2021, the Applicant provided the Firearms Registry with a letter from his general practitioner confirming that he suffered from Post Traumatic Stress Disorder (PTSD). It appears that this is the same letter as that dated 23 September 2021 from Dr Martin (part exhibit R1).
In that letter, Dr Martin writes as the Applicant's general practitioner, and indicates that the Applicant has a "stated condition of PTSD for which he is on a TPI from DVA". He writes that he has seen the Applicant regularly and has no concerns as to him holding a firearms licence and that he is compliant with medication and sees a psychologist. He states if he had concerns, he would alert NSW Police immediately. He says he does not and does not expect to.
In the report of Ms Hanson dated 5 December 2021 headed "Risk Assessment Questionnaire" (part exhibit R1 and exhibit A4), she confirms that she has received and read the letter sent to the Applicant dated 11 October 2021 and provides responses to the questions in the Firearms Registry letter of that date. In response to question 3 about how long she has been treating the Applicant, she states that the first appointment was on 18 March 2021 and refers to "22 appointments weekly-monthly". In response to question 4 about "What, if any condition or impairment has the Applicant been diagnosed with or suffered", Ms Hanson states that the Applicant "presented referred by his GP with a diagnosis of [PTSD] Previously diagnosed with PTSD; Major Depressive disorder; Generalized Anxiety Disorder; alcohol dependence; social anxiety (see Qu8)".
Ms Hanson records that the Applicant reports that he was diagnosed with PTSD and Major Depression whilst living in Townsville where he first sought treatment including hospitalization. In response to question 8, "What were the applicant's response to questions about suicidal ideation", Ms Hanson states that the Applicant "took himself forward for help with Veterans Counselling Service Mates4Mates in 2017-2020 and had two admissions to the Townsville Clinic in 2017 and 2018". She said that it was noted that the Applicant was suffering from PTSD, Major Depressive disorder, Generalized Anxiety Disorder, alcohol dependence and social anxiety. She records that whilst it was noted he was experiencing suicidal ideation at that time, he did not have any plan for suicide nor intent to carry out suicidal action. Ms Hanson records that it was also noted that alcohol dependence was a significant link to suicidal ideation, and the Applicant developed insight about this. Following appropriate medication and psychological therapy, the Applicant's mood stabilised, and he was discharged home, continuing to improve in his psychological state and to work to reduce alcohol intake.
Ms Hanson opined on 5 December 2021 that the Applicant currently did not appear to meet the criteria for Major Depressive Disorder, or alcohol dependence and noted that the Applicant continued with antidepressants as prescribed which provided significant assistance to him with best managing symptoms of depression, anxiety and PTSD. Ms Hanson states that whilst the Applicant had reported some short periods of increased depression linked to situational stressors, he described feeling depressed, withdrawn and lethargic but "NOT SUICIDAL".
Ms Hanson refers to reports from the Applicant that at no time did his treating professionals seek to cancel his gun licence or have his guns removed due to concerns about his wellbeing or others around him. She states that the reports from Mates4mates or Townsville Private Clinic that she requested did not raise any concerns about the Applicant having a firearms licence. She states that the Applicant reports that he continues to take his antidepressants as prescribed which also assists with anxiety and reducing the impact of PTSD symptoms.
In her report, Ms Hanson provided a response to questions 9, 10 and 11 in the Risk Assessment Questionnaire that are prefaced with the words "In your expert medical opinion". Ms Hanson is a clinical psychologist, and it was not contended that she is a medical practitioner. In response to question 9(i) "Is there a risk that the Applicant's condition or impairment may impact on their ability to exercise continuous or responsible control over firearms?", Ms Hanson indicated that there was no evidence of this and that if any concerns developed, she would advise police immediately.
In relation to question 10 (iii), "If there is a previous history, yet no concern, why have the circumstances changed?", Ms Hanson responded as follows: When struggling with depression in Qld, he was struggling with a number of social, environmental, relationship and family stressors that are no longer present in his new environment. He had also not had psychological therapy inpatient or outpatient at that time until he took himself froward for help…Since his hospital admissions, [the Applicant] has consistently reported that he has remained mindful of alcohol intake and avoiding reliance on it as a primary stress management tool…He has not reported any alcohol or major traffic offences nor involvement in any alcohol fuelled conflicts despite regularly dining at a number of hotels in the area. He reports he is always able to drive home responsibly and if going to a social event, arranges transport home or stays. This is reviewed regularly in psychological counselling…
In relation to question 10 (iv), "It is possible the Applicant will relapse?", Ms Hanson has indicated that should she develop any concerns about the Applicant's psychological stability deteriorating such that he could pose a risk in holding a firearm, she would alert NSW Police, the Applicant's GP and Mental Health Services immediately. A similar response was given to question 11(i) in relation to whether the Applicant's condition or impairment has the potential to put public safety at risk if he was to have possession or use of a firearm.
The Applicant gave evidence that the clinic admissions in 2017 and 2018 were under Dr Sharma, psychiatrist. He stated that he continued to consult with Dr Sharma and after moving to NSW, had a couple of telehealth sessions a year with him. The Applicant gave evidence that he had a "closing" phone call with Dr Sharma prior to the hearing as Dr Sharma advised that he was going on a long holiday. In his evidence, the Applicant candidly admitted that he has PTSD, that it was never going away and that he would forever seek psychological therapy as it helped him. He stated that he took antidepressant medication daily and that he had never stopped taking it as it was vital that he do so. He said that he took his medication and mental health very seriously, that he was well treated and stable.
The two reports of Dr Sharma (exhibits A2 and A5) indicate that the Applicant has been under his care for psychiatric conditions relating to ADF service since 2017. Dr Sharma does not provide any details of the Applicant's psychiatric conditions in either of his reports. In his report of 15 December 2022, Dr Sharma states that the Applicant does not have any suicidal or homicidal thoughts, intentions or history of violence. He stated that in his clinical opinion, the Applicant does not have any added risk for a gun licence for recreational purposes, due to his mental health conditions which "are stable with medications for a long period of time."
Dr Sharma opined in the report dated 20 March 2023 that the Applicant has a (sic) "stable mental status with on going treatment since he is in my medical care." He indicated that he had re-assessed the Applicant with "psychiatric evaluation" on that day and reached a conclusion that the Applicant is "a fit and proper person to exercise continuous and responsible control over firearms and have unrestricted and unsupervised access to them." Dr Sharma then referred to the case of Ward and stated that in his clinical opinion, the Applicant does not present a risk to himself or the public and that at the time of assessment, there is no real risk to public and individual safety.
Ms Hanson provided a letter dated 6 March 2022 seeking an internal review on the Applicant's behalf in relation to the Respondent's decision to refuse his Application (part exhibit R1). She indicated in that letter that she was concerned that the information quoted as reasons for denying his Application was both incorrect and taken out of context. Ms Hanson indicated that her report had been prepared based on the information provided over the course of her contact with the Applicant as well as:

Clinical notes from Townsville Private Clinic; Mates4mates Veterans Counselling Service;
DASS21- Mood Questionnaires - 21 items (DASS-21) is a set of three self- report scales designed to measure the emotional states of depression, anxiety and stress;
PCL-5 PTSD Questionnaires - 20 item self-report measure that assesses the 20 DSM-5 symptoms of PTSD.

Ms Hanson clarified that the Applicant had not acknowledged having increasing thoughts of suicide since commencing treatment and had consistently denied suicidal ideation during her contact with him. She also clarified that her report did not raise any concerns about the Applicant having continued access to firearms due to an "ongoing mental health disorder" and that it clearly stated the exact opposite. She noted that the Applicant continued to seek psychological assistance with her "2-3 weekly".
Ms Hanson did not provide any updated reports and she did not give evidence in the proceedings. No oral evidence was adduced from Dr Martin or Dr Sharma.

Applicant's history

The Respondent relied upon six Interim Apprehended Violence Orders (IAVOs) and one Apprehended Violence Order issued against the Applicant. Five of the IAVOs were issued for the protection of the same female during the period 2004 to 2009 and an AVO arising out of the third IAVO was issued in 2007 for a two year period. A sixth IAVO was issued in 2014 (2014 IAVO) for the protection of a second female, who was also an ex-partner of the Applicant at that time.
The female the subject of the five IAVOs and the AVO acknowledged in a letter to the Tribunal (exhibit A9) that after their relationship, there were some issues that led to the issuance of several domestic violence orders. She stated that while she understood the reasoning behind the orders, she does not believe that this should be taken as an indication of the Applicant's character today as he is a different person from those many years ago and she does not believe that it should hinder his ability to obtain a firearms licence.
The 2014 IAVO was issued following a separation between the Applicant and an ex-partner in NSW and the Respondent relied on the events set out in COPS Event Reference Number E 54385632 (2014 COPS Event) (part exhibit R1). The 2014 COPS Event records a number of events in relation to a dispute between the Applicant and his ex-partner. Part of the dispute involved a laptop computer held by his ex-partner that the Applicant wanted returned. The 2014 COPS Event records various texts between the Applicant and his ex-partner. The text messages include the Applicant swearing and using a number of obscenities in relation to his ex-partner, and included calling her a "slut." The 2014 COPS Event includes the following text exchanges between the Applicant and his ex-partner: Applicant: What I'm going to do is make your life a living hell Ex-partner: Is that a threat? Applicant: No a promise … Ex-partner: Yes you will! Call the police and ask…Take the whole container Applicant: I can't at this stage…is still my registered address, I've got the documents to prove it. So the pigs won't be able to help.
The 2014 COPS Event also refers to certain events that were alleged to have occurred when the Applicant entered his ex-partner's workplace, and it was common ground that the laptop computer was returned to him at that time by his ex-partner.
The Applicant did not dispute the various Orders as having been issued, although he gave evidence that he did not believe that he had ever been served with the full AVO. In his written evidence he said that the domestic circumstances leading to the issue of a full AVO in 2007 were fractious. He and his ex-partner had a difficult relationship and whenever they had a disagreement or argument, she would contact Police seeking a protection order. He said that the five IAVOs were of short duration usually lasting a few weeks and expiring without any breach. He said that he regrets that he was unable to resolve disagreements with her before they escalated to an AVO being issued. He stated that he is now back on speaking terms with that ex-partner and gave evidence that she is now one of his best friends. He said that he had no recollection of ever having been served with the AVO or being notified by police that the AVO was in place.
In relation to the 2014 IAVO, he said that he had a short term relationship with a second female. The 2014 IAVO was taken out by her in relation to issues relating to a brand new laptop computer that he had bought for his children for schoolwork and which the female refused to return. He said that he confronted her, insisting that she return it, which she did and that the IAVO was subsequently withdrawn by her. The withdrawal of the IAVO was not disputed by the Respondent.
In cross-examination, the Applicant acknowledged going to the female's workplace, that she gave him the laptop and he left. He said that a few days later the IAVO was served on him. He denied much of the conduct set out in the 2014 Cops Event but did concede that in the lead up to visiting the female at work, he had exchanged text messages with her.
Mr Roberts took the Applicant to the various messages referred to above. The Applicant said that given this occurred in 2014, he had no recollection of doing it but if the female had used it as evidence, then "I'd say yes, I did". The Applicant said that given the dates in 2014, he and the female were having a major argument at the time. He denied the suggestion that "pigs" was a term he regularly used to refer to police. The Applicant said that this had occurred almost ten years ago and that he was not a bad person at that time. He said that he would not allow himself to engage in a text message war like that ever again. He also made reference to himself as a single man.
The Applicant did not dispute the criminal history relied upon by the Respondent. Mr Roberts conceded that the matter in 1989 was of little assistance and accordingly I have no regard to this matter. On 9 February 1995, the Applicant was convicted in NSW of a charge of "Mid PCA" and driving whilst unlicenced. He was fined and disqualified for a period of six months. The Applicant confirmed that it involved an offence of exceeding the prescribed blood alcohol concentration. He said that he was aged 22 at the time and a relatively inexperienced driver. The Applicant was charged in Queensland with assaults occasioning bodily harm that took place in 1997. No conviction was recorded and a fine and restitution imposed. The Applicant's evidence was that it arose during a night out on the town with a bit of alcohol involved. He stated that a male called his then partner some insulting names. The Applicant said that he was deeply sorry for the incident and was a young man at that time.
There was a further matter involving the Applicant obstructing a police officer in 1999 for which the Applicant was convicted and fined. The Applicant's evidence was that he had come off a long course of duty and was exhausted and after a few drinks fell asleep in the wrong place. He said that he was disoriented and startled when woken up and cannot really recall what happened. He said that he was very sorry and was doubly punished for the incident both by the Magistrate and at work. He said that these incidents were not a reflection of who he was today.
On 10 May 2015, the Applicant was charged with the offence of "drive with middle range PCA- Ist off". He was found guilty and discharged subject to a 12 month good behaviour bond pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. The Applicant acknowledged this matter and stated that it was before he started professional treatment and counselling. On 14 May 2021 (the 2021 Driving Incident), the Applicant was subject to a random breath test that returned a positive reading. He was arrested and conveyed to a police station where he blew 0.043 grams per 210 L of breath and was subsequently released without charge. The Applicant acknowledged this and gave evidence that this reading was below the legal limit in NSW.

False or misleading information

The Application was made on 18 May 2021 and in response to both of the questions "Have you, in the past 12 months, been referred or treated for a mental or nervous disorder or illness?" and "Have you, in the past 12 months, been referred or treated for alcoholism or drug dependence" the Applicant has answered "No". As referred to above, the report of Ms Hanson dated 5 December 2021 indicates that her first appointment with the Applicant was on 18 March 2021 and that as of the date of the report on 5 December 2021 there had been 22 appointments "weekly-monthly". Ms Hanson wrote that the Applicant "presented referred by his GP with a diagnosis of Post-Traumatic Stress Disorder Previously."
In his written evidence (exhibit A1), the Applicant acknowledged that his "No" response to the question in the Application relating to whether he had been referred or treated for a mental or nervous disorder or illness in the past 12 months was not correct. He said (sic) "I sincerely regret making a false response - it was an isolated poor decision and a lapse from honesty and trust is instilled in me during military training."
In cross-examination, the Applicant acknowledged that he had first been diagnosed with PTSD by Dr Sharma in 2017 and that his first appointment with Ms Hanson was in March 2021. He said that he moved to NSW, and after being here for a while, it was time for him to find another clinical psychologist. Mr Roberts put to him that his first appointment with Ms Hanson was on 18 March 2021 and that his Application was submitted on 18 May 2021. The Applicant agreed that his Application was approximately two months after his first appointment with Ms Hanson and that his answer to the question in his Application about whether he had been referred or treated for a mental or nervous disorder or illness in the past 12 months was false. He said that at the time of filling out his Application, quite some time had lapsed between moving down from Queensland and his first appointment with Ms Hanson and he was a bit confused about whether it had been within the previous 12 months.
The Applicant said that it was an error of judgment that he was deeply sorry for and that it had caused him a lot of pain and heartache and he would like to move on from it. He agreed that he had held a firearms licence in Queensland and understood how important it was in both Queensland and NSW to provide the Firearms Registry with truthful and honest information. Mr Roberts put to the Applicant that that it was not the case that the Application was completed during a long period of not seeing a clinical psychologist and that the Applicant had seen one somewhat recently. The Applicant acknowledged this and said that it was a loss of concentration and integrity at that time.
The Applicant agreed that at the time that he answered "No" to that question, he knew that it was false. Mr Roberts put to the Applicant that he answered "No" because he was concerned that if he answered truthfully, it might result in further scrutiny of his Application. The Applicant said "No" that it was the "whole stigma of the whole mental illness thing and everything else." He said that there was a lot more involved in it than just that and that not a great deal of thought was put into the answer. The Applicant said that it was just a situation where he was going through the Application, and it was just answered incorrectly.

False or misleading statement

The Applicant answered "No" to the question "Have you, in the past 12 months been referred or treated for a mental or nervous disorder or illness". It is clear that this response was objectively false as the Applicant commenced treatment with Ms Hanson for at least his PTSD on 18 March 2021 and had 22 appointments "weekly-monthly" from 18 March 2021 up until 5 December 2021, a period of approximately 8 and a half months. In any event, the Applicant conceded in his evidence that the statement was false and that he knew that it was false when he made it. Accordingly, I find that the Applicant's response to the question whether in the past 12 months he had been referred or treated for a mental or nervous disorder or illness was knowingly false. However, I am not satisfied on the available evidence that the Applicant had specifically been referred or treated for alcoholism or drug dependence in the previous 12 months and accordingly, I do not find that his response to the question in the Application relating to this issue was false or misleading.
Whilst the provision of false information in an application under the Act may in certain circumstances amount to a criminal offence, no such action was taken against the Applicant in this matter. Mr Roberts noted in an email sent to the Tribunal and to the Applicant following the hearing in this matter and in response to an enquiry by me, that the Firearms Registry was previously aware of such a potential offence and did not request that it be investigated and that the time in which to bring a prosecution for a summary offence in relation to the Application appeared to have lapsed.
In Saxby v Commissioner of Police [2021] NSWCATAD 275, Senior Member Naida Isenberg made a number of observations in relation to the provision of false and misleading information under the Act and said at [74]: 74. If the Applicant had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. Furthermore, on that basis alone, it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence: see Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240. It is difficult to conclude that the Applicant did not knowingly intend to provide false information. The medical evidence shows a pattern of his requiring detailed psychiatric management. There can be no contention that it was an error, because his need for psychiatric intervention, sometimes as frequently as weekly, could not possibly have merely slipped his mind. 75. As I said recently in Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18] one of the objectives of the Act is the functioning of a proper system of firearms licensing, which necessarily depends on applicants providing true and correct information in a comprehensible manner. In Kogias v Commissioner of Police [2020] NSWCATAD 297 the applicant, who had failed to disclose that he had previously had his licence revoked, said that his incorrect statements in the application were errors and were not intentional. Nonetheless the Tribunal in that matter took the view that the applicant knew the form he had completed was incorrect. Similarly, in Hunt v Commissioner of Police [2021] NCATAD 58 the Tribunal found the applicant was aware that he had incorrectly completed the form in relation to a suicide attempt within the preceding 10 years. 76. In Hook v Commissioner of Police [2020] NSWCATAD 250 the applicant had responded "no" to a question whether in the past 10 years he had been the subject of an AVO and had explained that he had thought the question was asking about current AVOs and that he must have misread the question. Professor Walker SM considered, at [96], that the applicant's explanations were less than impressive and at best suggested a degree of carelessness in completing an official document and that the meaning of the question was clear enough if he had taken the trouble to read it properly. The Senior Member found the applicant in that matter to be, essentially, unsophisticated and probably had not been involved much legal form-filling. His incorrect answers resulted from a combination of carelessness and inexperience and were not knowingly false or misleading within the meaning of s 70. The Senior Member also contrasted the matter to Constantin v Commissioner of Police, New South Wales Police Force, [2012] NSWADT 172 (Constantin), where the applicant had knowingly concealed a Queensland conviction for armed robbery.
The Applicant submitted that his false response was an isolated error and out of character for him and that as attested to in the character references, he is generally an honest person. The Applicant relied on the decision in Cook v Commissioner of Police [2021] NSWCATAD 204 (Cook) and referred to the comments of Senior Member Naida Isenberg at [30] that "I am not prepared to conclude that there is some ongoing misconduct by Mr Cook and flawed character traits, as the Respondent submitted". I note that these comments were made in relation to a submission that the Tribunal should reach adverse conclusion about Mr Cook's fitness and propriety. It was submitted in Cook, that the applicant had made a false statement in his firearms application, namely that he failed to disclose that his licence had previously been suspended. Senior Member Naida Isenberg said at [36]: 36. If Mr Cook had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. As I said very recently in Balle v Commissioner of Police [2021] NSWCATAD 187(Balle) at [14] it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence.
Senior Member Naida Isenberg accepted in Cook at [41] that the applicant understood that his firearms had been seized because of an incident involving his son and accordingly, she was not satisfied that there was clear evidence by him of an intent to deceive.
The current matter can be distinguished from Cook as the Applicant conceded in his evidence that he knew that the response in his Application was false when he made it. As outlined previously, the Applicant has provided a number of different explanations for the false response. At various times, the Applicant referred to his response as an "isolated poor decision", an "error of judgment", and a "loss of concentration and integrity". He also stated that he had been "confused", that "not a great deal of thought was put into the answer" and that it was just answered "incorrectly." The Applicant denied that it was because he knew that if he answered truthfully, it might result in further scrutiny of his Application and said that it was the "whole stigma of the whole mental illness thing and everything else."
The Applicant's referees (exhibits A6 to A9) spoke highly of him in relation to his review application before the Tribunal. Three of his four referees made reference to their knowledge of his mental health issues and all four referred to either his honesty or his integrity. Whilst the Applicant gave evidence that he had disclosed all matters to his referees, the referees did not give evidence and there was no mention by any of them of the Applicant having knowingly made a false statement in his Application and accordingly, I am not satisfied that they were aware of it. There is no reference to the false statement in Ms Hanson's report and no evidence that it was a matter that the Applicant has raised with her.
The Respondent submitted that the Applicant's knowingly false statement undermines the legislative scheme and the objects of the Act and that this conduct alone justifies the refusal of the Application. Having regard to the inconsistent explanations from the Applicant as to why he made the false statement about his treatment for mental health issues, I agree with Senior Member Naida Isenberg's comments at [36] in Cook that "it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence."

Applicant's history

I also have regard to the Applicant's history as outlined above. It was not contested by the Respondent that the issue of the IAVOs or the AVO in this matter enlivened the provisions of s 11(5)(c) of the Act, namely that a firearms licence must not be issued to a person who is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked). I accept that this provision does not apply to this matter.
The Applicant did not dispute the issue of the six IAVOs during the period outlined above nor the issue of the AVO and I accept that they were issued. Whilst I am satisfied that the AVO was issued, I am not satisfied on the evidence before me that the Applicant was served with it or was aware it had been issued. In the context of this matter, not much turns on this finding as the primary relevance of the Orders to the current matter is the Applicant's conduct that resulted in the Orders being issued. Whilst there was not a lot of detail about the incidents leading to the issue of the IAVOs or the AVO, I accept that the 2014 IAVO was issued in relation to a separate female following the breakdown of the relationship between her and the Applicant. Five of the IAVOs and the AVO arose within the context of a fractious relationship between the Applicant and an ex-partner, and I accept the ex-partner's statement in her letter to the Tribunal that after their relationship "there were some issues that led to the issuance of several domestic violence orders".
Whilst the Applicant denied much of the conduct set out in the 2014 COPS Event relating to the 2014 IAVO, he acknowledged that he had exchanged text messages with the female involved and, on this basis, I find that that the Applicant sent the various text messages referred to in the 2014 COPS Event, a number of which were referred to in evidence and which contained obscenities and a "promise" to make the female's life a "living hell." I also accept that this conduct occurred in 2014, that the 2014 IAVO was subsequently revoked and there have been no further IAVOs or AVOs since that time.
Whilst I am satisfied that the Applicant sent the various text messages as set out in the 2014 COPS Event, I am not satisfied to the relevant standard in relation to the remaining conduct referred to in that document and that has been denied by the Applicant and I have no further regard to it. There were various reports in the s 58 documents referring to incidents between the Applicant and the female the subject of the 2014 IAVO. These were not referred to in evidence or in submissions and I do not find that the conduct alleged in those documents has been proved to the relevant standard.
I accept that the Applicant has a number of matters in his criminal and traffic history from 1995, that include assaults occasioning bodily harm and obstructing a police officer and that all, except the driving whilst unlicenced matter, involved the use of alcohol by the Applicant. Six IAVOs and an AVO have been issued against the Applicant in relation to two different women and the circumstances of the 2014 IAVO included the Applicant sending the text messages referred to above.

Applicant's mental health

In written submissions, the Respondent acknowledged that some of the Applicant's impugned domestic violence conduct is dated and also submitted that the Applicant's pattern of behaviour may be attributable to his mental health issues. The Applicant was candid in his evidence that he suffers from PTSD and that it is an ongoing condition. The Applicant relied on a number of reports in relation to his mental health.
The two reports from Dr Sharma, psychiatrist provide no detail in relation to the psychiatric conditions for which the Applicant was under his care from 2017 until March 2023 or the treatment that he has provided. Dr Sharma states that the Applicant does not have a history of violence and this at odds with the matters previously found in relation to the Applicant's history and that are outlined above. There is no reference in either of Dr Sharma's report to the Applicant's criminal or traffic history or to the IAVOs and AVO issued against him. There is no reference in the reports to the Applicant's use of alcohol, either in the past or at the time of the reports.
Dr Sharma expressed the view that based on the psychiatric evaluation he conducted on 20 March 2023 that the Applicant is a fit and proper person and in his expert opinion, that at the time of assessment, there is no real risk to public and individual safety. However, Dr Sharma provides no detail as to the nature of the evaluations undertaken by him or the results. The question of whether the Applicant is a fit and proper person or the degree of risk to public safety that may be posed if the Applicant was to be granted a firearms licence is of course a question for the Tribunal to determine.
Dr Sharma did not give evidence at the hearing. In the absence of any detail in his reports as to the Applicant's past and current psychiatric conditions and treatment; his knowledge of the Applicant's history, including his criminal and traffic history and the IAVOs and AVO issued; the psychiatric evaluation carried out by him; and the basis of his assessment of risk; his reports are of extremely limited assistance, and I give them little weight in my determination.
As referred to previously, the report of Dr Martin is very brief. Whilst Dr Martin refers to the Applicant's stated condition of PTSD, he makes no reference to any assessments or investigations carried out by him in relation to this, or any other condition. Dr Martin makes no reference to Dr Sharma, to the nature of the medication taken by the Applicant and provides no reasons as to his views for the views that he expressed in relation to the Applicant holding a firearms licence. The report is dated 23 September 2021, some 20 months prior to the hearing and having regard to this and the lack of detail within the report, it is of very limited assistance to the determination the Tribunal is required to make in this matter, and I afford it little weight.
The report of Ms Hanson is dated 5 December 2021, some 17 months prior to the hearing, and as previously noted, she did not give evidence. Whilst Ms Hanson clarified certain matters in her request for an internal review dated 6 March 2022, no updated report from her was before the Tribunal. In her report, Ms Hanson outlines a number of conditions for which the Applicant had previously been diagnosed with, namely PTSD, Major Depressive Disorder, Generalised Anxiety Disorder, alcohol dependence and social anxiety. It would seem that these diagnoses were provided by the Applicant and appeared in clinical notes that she had requested from the clinic and counselling service attended by the Applicant. Those notes were not before the Tribunal. Whilst Ms Hanson made reference to the Applicant's general practitioner, she made no mention of Dr Sharma.
In her report, Ms Hanson provided responses to various questions commencing with the words "In your expert medical opinion". This includes question 10 (iii), namely "In your expert medical opinion, does the Applicant:- if there is a previous history, yet no concern, why have the circumstances changed." Ms Hanson is a clinical psychologist and not a medical practitioner and accordingly, I do not accept her evidence as expert medical evidence. I have previously outlined Ms Hanson's response to this question to include the following: When struggling with depression in Qld, he was struggling with a number of social, environmental, relationship and family stressors that are no longer present in his new environment. He had also not had psychological therapy inpatient or outpatient at that time until he took himself forward for help.
Even if viewing Ms Hanson's responses from a psychological perspective rather than a medical perspective, it is not clear what stressors she is referring to or when they occurred. Whilst Ms Hanson refers to the Applicant learning new coping tools and best managing stressors, she does not provide details of these stressors. Ms Hanson does not provide an opinion as to the effect on the Applicant, in the event that any of his past stressors were to return or further stressors were to emerge, and how, if at all, this might affect her assessment of the risk of the Applicant possessing or using firearms.
It is also not clear from Ms Hanson's report whether she was aware of the Applicant's false statement in his Application, his criminal and traffic history, the IAVOs and AVO issued against him or the details of the text messages relating to the 2014 IAV0. In the absence of any further reports clarifying these issues or Ms Hanson giving evidence, it is not possible to ascertain whether Ms Hanson was aware of these matters and if not, what effect these may have on the opinions set out by her.
In her report of 5 December 2021, Ms Hanson opines that the Applicant does not appear to meet the criteria for alcohol dependence. As previously referred to, the report states: …Since his hospital admissions, [the Applicant] has consistently reported that he has remained mindful of alcohol intake and avoiding reliance on it as a primary stress management tool…He has not reported any alcohol or major traffic offences nor involvement in any alcohol fuelled conflicts despite regularly dining at a number of hotels in the area. He reports he is always able to drive home responsibly and if going to a social event, arranges transport home or stays. This is reviewed regularly in psychological counselling…
In her request for internal review dated 6 March 2022, Ms Hanson states that the Applicant does not meet the criteria for alcohol dependence as he consistently reports low alcohol intake and remains very mindful of not relying upon it as his primary stress management tool.
It would appear from the report and internal review request that Ms Hanson is basing her opinion in relation to the Applicant's use of alcohol on the self-reporting by him. Of note, there is no reference by Ms Hanson to the 2021 Driving Incident that occurred on 14 May 2021 and that was acknowledged by the Applicant. Whilst it is accepted that no criminal offence was committed by the Applicant, it is evident that he had been consuming alcohol in a social setting, had been driving home after doing so and been arrested by police following a positive roadside test, even though he was later found to be below the legal limit for alcohol. The circumstances of the 2021 Driving Incident appear to be of the type of alcohol related matters that Ms Hanson refers to as being regularly reviewed in her psychological counselling and yet there is no reference to it in her report. The Applicant did not refer in his evidence to any discussions about it with Ms Hanson. On the available evidence it is not possible to ascertain whether or not Ms Hanson was aware of the 2021 Driving Incident or what effect it had, or may have, on the opinions expressed by her.
There were some inconsistencies in relation to the Applicant's explanations about his use of alcohol. In his written document dated 29 March 2023, the Applicant says that the counselling that he undergoes has given him greater insight into the potential risks associated with alcohol consumption and that he has continued to reduce his alcohol intake. Some two months later, at the conclusion of the hearing on 24 May 2023, in his oral submissions in relation to drink driving, the Applicant submitted that this was not an issue as he does not drink anymore, and that he has been a non-drinker for around 14 months. The Applicant did not refer to this in his oral evidence and there is no other evidence before the Tribunal, including from any health practitioner, in relation to this submission.
Whilst there is a reference in the request for internal review made by Ms Hanson to DASS21 Mood Questionnaires and PCL-5 PTSD Questionnaires, no detail has been provided as to if, and when, they were used by her, or the results obtained. Ms Hanson has not provided details of the Applicant's current symptoms, his prognosis or any potential risks associated with the Applicant's mental health conditions. Ms Hanson has not addressed the Applicant's risk of relapse, particularly if he was to be subject to additional stressors, either those he was previously subjected to or new ones. Having regard to these issues and the matters outlined above, I afford limited weight to the opinions reached by Ms Hanson.
I do however accept that the Applicant has never attempted suicide or self-harmed. Whilst he expressed suicidal ideation in the period from 2017 to 2018, I accept that he had no plan to commit suicide at that time. I further accept that there is no evidence that he has expressed suicidal ideation since commencing treatment with Ms Hanson in 2021.
The Applicant has given evidence that he is passionate about having a firearms licence and indicated that if granted his licence, he would like to use it to help other shooters. Whilst I accept that this is the case, it is an underlying principle of the Act that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety. Accordingly, the considerations of the Applicant's private interests in this matter are outweighed by the public interest.

Conclusion

The Applicant knowingly provided a false response in his Application by answering "No" to the question "Have you, in the past 12 months, been referred or treated for a mental or nervous disorder or illness". Given this finding, I do not accept that his response was an error or that he was confused about when he received treatment from Ms Hanson. The Applicant gave evidence that he understood the importance of providing truthful and honest information to the Firearms Registry yet failed to provide a consistent reason for his failure to do so in his Application. Having regard to the objects and the principles of the Act, the Applicant's action in knowingly providing false information in his Application leads me to conclude that the issue of a firearms licence to the Applicant at the current time would be contrary to the public interest.
The Applicant's PTSD, for which he first sought treatment in 2017, is sufficiently serious that it has resulted in him receiving a TPI pension from the DVA. The Applicant was previously diagnosed with a number of other conditions including alcohol dependence. The Applicant continues to receive treatment, including from Ms Hanson. For the reasons previously outlined, the medical and psychological reports before the Tribunal do not provide a clear picture of the Applicant's current mental health conditions and do not permit a clear assessment of risk to be made in relation to the Applicant possessing and using firearms.
This conclusion serves to add further weight to my finding set out above and accordingly, I am satisfied that it is not in the public interest for the Applicant to hold a firearms licence at this time. The Applicant is not precluded from applying for a firearms licence in the future.
Having made this finding, it is not necessary for me to consider the further issue of whether the Applicant is a fit and proper person to hold a firearms licence.

Order 1. The decision under review is affirmed. 2. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the Confidential Material and the Confidential Statement (exhibit CR2) or matters contained in the Confidential Material or Confidential Statement is prohibited. 3. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the Confidential Material and Confidential Statement or matters contained in the Confidential Material or Confidential Statement is restricted to the Respondent, the Respondent's legal representatives and the Tribunal. 4. Pursuant to ss 64(1)(b) and 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication or reporting of the hearing of the application by the Respondent, including any evidence given during any Confidential Hearing, is prohibited. 5. Except pursuant to order (6) below, all paragraphs marked "[NOT FOR PUBLICATION]" are not to be published pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013. 6. A copy of these reasons, without redaction, shall be released to the Respondent

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 26 October 2023

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Cases Cited (17)