ELU v Commissioner of Police

Evidence

1. In addition to the s 58 documents, I had before me a statement by Senior Constable C Cregan dated 6 October 2020. Senior Constable Cregan also gave evidence. The Applicant provided numerous submissions, and gave evidence. Evidence was also given by Donna Symonds, clinical psychologist, who had also provided two reports, both dated 4 November 2019. Her clinical notes were produced under summons. The Applicant also relied on two reports of Sam Borenstein, clinical psychologist dated 13 and 19 August 2020. Mr Borenstein was required by the Respondent for cross examination but was unavailable. The notes of the mental health facility (Facility) were produced under summons, and both parties had the opportunity to comment on those notes.
2. The Respondent raised a number of matters upon which it was relied in support of its contention that it is not in the public interest for the Applicant to hold a firearms licence.

Mental health issues

1. The Applicant has come to Police attention on two occasions and concerns for her mental health have been raised.

2012

1. According to the COPS Event record, in March 2012, Police attended the Applicant's home and reported that she was "hysterical, irrational and was complaining that her daughter assaults her all the time", and that her daughter was "uncontrollable". She claimed that her daughter's bad behaviour was the result of her husband sexually abusing her daughter. The Applicant wanted her husband to leave, but her daughter did not, and the daughter became hostile towards the Applicant. Police were subsequently involved in tracking down the Applicant's daughter after she fled the scene. Police also questioned the Applicant's husband about the alleged sexual assault of the daughter.
2. Although no details were provided Police reported that the Applicant continued to behave in an "unusual and irrational manner" which indicated to Police that she may have mental health issues of her own.
3. The Applicant's daughter was taken to the Hospital under s 22 of the Mental Health Act by Police, who briefed medical staff and mental health professionals with all the information they had received. Police recorded that mental health staff considered the Applicant was in more need of help than the daughter. A psychiatrist and a professional counsellor were summoned to the Hospital to assess and provide support counselling to both the Applicant and her daughter.
4. Reports were made to Police in April 2012 that the Applicant no longer believed her daughter's sexual assault allegation. The Applicant's daughter became distressed and threatened self-harm with a steak knife, so the Applicant called her husband, who in turn contacted Police.
5. When Police attended they were informed by the Applicant that her daughter exaggerates everything and Police shouldn't believe anything she says. The Applicant's daughter spoke to Police and informed them that if she was left with the Applicant she would try to kill herself again. As a result, the Applicant's daughter was again conveyed to the Facility where she was scheduled under s22 of the Mental Health Act.
6. Police attempted to seek further information in relation to the Applicant's other daughter, however the Applicant refused to speak with Police and hung up on them.
7. An AVO was issued against the Applicant's husband in relation to the alleged sexual abuse incident but was dismissed in October 2012.
8. At the hearing the Applicant said that the matters raised in relation to 2012 were irrelevant as they related to her daughter's conduct, not hers.

2019

1. On 10 June 2019, Police were called to the Applicant's home due to concerns held by her brothers as to her mental wellbeing. They, and the Applicant's daughter had received a number of text messages and had conversations with the Applicant in which she made "indirect threats" indicating that she planned to commit suicide the following day. The Applicant in her evidence, denied that she had ever threatened self-harm or suicide.
2. The COPS Event records that Police spoke to the Applicant who "admitted to undergoing trauma" but denied making any threats of self-harm or suicide. She later stated she sent the messages as she was upset and frustrated. At the hearing she said that, because of a disagreement with her brothers she said she had "had enough", but she did not mean by that that she intended to kill herself.
3. The Applicant's brothers indicated that the Applicant had recently started pulling her hair out. The Applicant said at the hearing that she suffers from female pattern baldness and this explained her hair loss, although she provided no evidence of this diagnosis.
4. Her brothers also reported that she had been living on coca cola and cigarettes, which SC Cregan said was apparent from the rubbish in the kitchen. She conceded here kitchen was untidy but was critical of Police for raising this.
5. SC Cregan said he observed the Applicant undergoing "violent moods swings" and being "verbally aggressive". The Applicant denied that she was aggressive, but describes herself as having been "assertive". She said that she spoke in a "firm" voice.
6. The Applicant told the attending Police that there was a safe which contained firearms on the premises and told them that her ex-husband had the key and that she could not access the safe. The Applicant denied that she told Police that she did not have a key, and that her ex-husband had a copy. She said the Police didn't ask to see the safe.
7. She wrote in her submissions that she was upset at her brother's presence in her home, saying they were critical of her religious observance. She also said she was in dispute with the Melbourne brother over financial matters. (She has subsequently been engaged in litigation against her brother.)
8. SC Cregan said the Police formed the opinion, due to the Applicant's erratic behaviour, her mood swings, her physical appearance in relation to her hair and the living conditions that the Applicant needed to be scheduled. At the hearing he denied, as was put to him, that he had decided to schedule the Applicant "because of her hair".
9. Also, some years ago she had worked for the NSW Police under another name; she alleged she had been subject to sexual abuse. She considered the Police attending her home had acted in a "condescending" manner and disregarded anything she had to say.
10. She considered she was exposed to "patriarchal male (sic) dominance" as all 4 people in her home at the time were men. She denied any violence or mood swings.
11. An ambulance was called and SC Cregan completed the paperwork pursuant to s22 of the Mental Health Act. He said that the Applicant objected to that course and was very argumentative. However she did not resist physically.
12. During the 2 hours it took for the ambulance to arrive the Applicant said she was watching a video to study for the examination she had the next day. SC Cregan could not remember the Applicant watching a video on the computer; she was on the computer but he was unaware what she was doing. He could not recall that she was writing on her whiteboard, as she claimed.
13. She said she had been told she could only go to the toilet with the door open. SC Cregan denied that that was the case - he would only have said that she could not lock the toilet door.
14. Whilst waiting for an ambulance, the Applicant's brother told SC Cregan that the Applicant had recently finalised her will and that she had told him "you will be executing this soon". SC Cregan said at the hearing he was not shown the will, nor was he told when the conversation between the Applicant and her brother had occurred.
15. In cross-examination SC Cregan agreed he had been on many 'callouts'. As to whether she had 'invited' him into the home, he said that he thought it was her brother who had let Police in. He could not recall if she "gave permission" for him to enter the home. He agreed it could be upsetting when 2 armed Police came into a person's home. The Applicant, in her submissions, denied the categorisation of her behaviour as "aggressive and/or violent, but conceded she was upset. The Applicant said in her evidence that when the Police came, she was upset "even more". She said in her submissions that she was voicing her objections to their presence and was attempting to counter the claims of her brothers who she considered were attempting to embellish what she had said. She denied she had ever voiced an intention of taking her life.
16. The Applicant was transported to a nearby Facility and left in the care of mental health staff and security. The Applicant said her brothers had told the doctors that she had a history of being sexually abused. She did not want to discuss that with a male doctor and wanted to wait for assessment by a female doctor with whom she could discuss her past. In her culture, she said, abuse, which she had suffered from age 4, would not be discussed with a man. While she admitted she had been sexually abused she wrote that she had dealt with those issues a long time ago. She said in her evidence that she had not been prepared to discuss the sexual abuse with a male doctor. She said she saw only a 'ward doctor', and not a psychiatrist. She said in he evidence that she asked then to speak to a female doctor.
17. The following day Police reported that the Applicant remained at the Facility and was not released despite being assessed that day. Police attended the Facility and served her with a suspension of her licence. At that time the Applicant provided Police with her front door key to allow access to her premises in order to seize her firearms. She was recorded as having informed Police that the key to her firearms safe would be in a shoebox within the office of the premises, which is also where the safe was located. The Applicant informed Police that there were three firearms at the location: one rifle registered to her, a pink rifle in her ex-husband's name, a Winchester rifle that her brother bought to her house a few months prior, which she believed was in the name of her father (who had been dead for approximately 20 years).
18. Police attended the Applicant's home and met her ex-husband who did not in fact have a key to the firearms safe, as the Applicant had earlier told them. No shoe box could be located in the office of the premises and despite a number of searches, including of the bedroom, no key to the safe could be found. The Applicant said in her evidence that the "shoe box" to which she referred was the large box at the foot of her bed in which she kept her shoes.
19. On 12 June 2019, Police reported that the Applicant remained at the Facility and it was not known how long her stay would be. SC Cregan said there is no 'usual period' a person will remain at a facility, but a lot of people are released within hours and do not even remain overnight.
20. On 13 June 2019, the Applicant was released from the Facility and escorted home by Police so that her firearms could be seized. She said that the keys were located in the linen press. She thought the Police must have left her ex-husband there and he had moved the keys.
21. Only 2 firearms were at the home, one registered to the Applicant and one registered to her ex-husband. The firearm belonging to the Applicant's ex-husband was returned to him; he said he believed he had previously surrendered the old firearm belonging to the Applicant's father, and this was confirmed.
22. The Applicant's evidence was that she was studying for an examination the following day, was planning her admission as a lawyer, and had also plans for the following weekend. In her submissions she wrote that she had already spent $1000 on text books for the next semester. She described herself as 'future-focussed'. She said she is 'still doing degrees' and proposes to sit the New York Bar examination. These she said, were inconsistent with an intention to commit suicide. As to her history of abuse, she described herself as a 'survivor'.

Summons material in relation to the 2019 incident

1. The Respondent invited attention to some extracts of the material produced under summons. Other relevant material is also noted below. 1. Ambulance Electronic Medical Record, which records: 1. "Police state pt has been agitated and has been erratic in mood whilst they have been at her home today"; 2. "Pt put hand up in front of AO's face and refused to talk any further. Pt refused to have observations taken" (The Applicant however denied this, saying she put her hand in front of her own face when she did not want to discuss her daughter further.) 1. Request by a member of NSW Police Force for assessment of a detained person dated 10 June 2019: 1. Current behaviour identified as "threatened self-harm", "verbally threatening others", "threatened suicide". 1. Mental Health Triage Notes dated 10 June 2019 at 10:43am which state: 1. Information from the Applicant's brother, including that she "has plan to suicide tomorrow" and "has made elaborate plans to see to same". Also notes "she has bought new clothing to wear when she sees this plan through"; 2. "client is evidently denying everything, 'masking', 'putting on a performance' that brothers have never seen before. Brothers suspect client is experiencing severe personality issues as she has been seriously traumatised"; 1. Triage Form dated 10 June 2019 dated 4:03pm notes "Pt having suicidal thoughts with plans to shoot herself". 2. MH Current Assessment on 10 June 2019 at 5:34pm states: 1. Applicant was "BIBP" (Brought in by Police) on Section 22 "after expressing suicidal ideation and erratic behaviours following verbal altercation with her brothers when they came around to check up on her as she has been texting them and hinting at suicide for last several months"; 2. "She is reportedly a registered gun owner and has guns locked up in a safe at home which she doesn't have the key for as her husband had 'accidentally' taken them away whilst taking away his own guns". 3. "ELU" reported that she found out 6 months ago that her husband of 10 years had sexually abused her biological daughter when she was younger". 4. "She admitted to sending texts mainly to her [named] brother in Melbourne over the last several months, sometimes hinting at suicide, but denied ever having any real intent involved with them. She last sent threatening texts to [her brother] on Wednesday"; 5. Risk of suicide - moderate-high 6. "Likely adjustment disorder with intellectualisation as a coping strategy, who likely presents with ongoing suicidal ideation given the collateral history, not safe to return home tonight in her currently mental state as she lives alone with no social support. Requires risk containment and further observation to minimise her current risks, would likely need brief admission". 1. Clinical report dated 10 June 2019 as to mental state of a detained person notes: 1. "in my opinion, "ELU" is a mentally disordered person"; 2. "intentionally omitted salient information re mediation tomorrow and collateral history, suggestive of premeditated suicidal ideations"; 3. "detain under the MH Act for risk containment"; 1. MH Progress note dated 10 June 2019 at 8:58pm notes "on arrival appears calm but shows aggression and mood swings in between admission process". 2. MH Progress Note dated 11 June 2019 at 9.24 am noted the Applicant was 'sarcastic responses' and said if she was going to suicide she would have done it months ago (when she found out about her daughters alleged sexual assault; her speech was rapid and difficult to interrupt; she complained of being offered no foo but in fact declined breakfast. 3. MH Progress Note dated 11 June 2019 at 10.59am notes the Applicant was seen by a psychiatrist to whom she provided details, amongst other things, of her sexual abuse. She denied she had told her brothers that she would shoot herself. She said her brothers observed that she was not taking car of herself, not putting the bin out, and that she was 'down'. She denied that she gets angry easily. She denied having anxious or aggressive thoughts. 4. MH Progress Note dated 11 June 2019 at 2:21 states "was unable to disclose location of keys for the safe in her residence as they are hidden very well". 5. Progress notes dated 11 June 2019 at 14.35 - the Applicant was reportedly "isolative all shift", teary and upset at times; frustrated re admission and adamantly denies [being] suicidal. She voiced anger at her brothers for putting her there. 6. Progress Note Medical dated 11 June 2019 at 2:42pm, where the Applicant was seen by a Senior Medical Officer for "diagnostic consideration for adjustment disorder or possible major depressive disorder". The Applicant was observed to be dishevelled, superficially cooperative but guarded at times. Her mood was described as 'sad at times'. Her insight and judgment was assessed as 'partial'. The Applicant stated in her evidence that she was not assessed on 11 June 2019. 7. Clinical Report dated 11 June 2019 as to mental state of a detained person, by a psychiatrist, which notes: 1. "in my opinion, ["ELU"] is a mentally disordered person"; 2. ""ELU" appeared tired, was [illegible] at times, she denies any thoughts of self- harm or suicide, reported being [illegible] at being here. 3. "needs a period of further examination of her mental state" 1. MH Progress Note dated 11 June 2019 at 7:03pm states: 1. "Guns: 3 guns, not used for 2-3 years"; 2. "Impression: suicidal thoughts-situational crisis, personality disorder"; 1. MH Progress Note dated 12 June 2019 at 11.42am in which clinical psychologist, Janene England reported that the Applicant had strongly denied suicide ideation and claiming it was her brother that had told Police that she was going to shoot herself. She considered the Applicant to be intelligent and highly-resilient woman who has adapted to adversity though problem-focused coping (as opposed to emotion-focussed coping). She considered, at that time, the immediate risk of suicide to be low. The Applicant was encouraged to pursue psychological support upon discharge. The Applicant indicated she is aware of how to seek a MH care plan through her GP. Ms England had taken a history from the Applicant that she had "recently, intermittently reconnected with [her] brothers due to one contacting her for financial assistance, and the other contacting her for employment request'. She reportedly told Ms England that prior to this contact she was "disowned" by her brother s on account of falling pregnant out of wedlock. 1. Mental Health Progress notes dated 12 June 2019 at 2:45pm state: 1. Plan: no change in current care level, review tomorrow. 1. Mental Health Progress notes dated 13 June 2019 at 9:08am: 1. Impression: situational crisis-adjustment disorder with emotional/conduct disturbance. Acute suicidal/self-harm risk is low. 2. Plan: advice and support given, discharge home, GACT follow up, inform police to remove guns, medical certificate for UNI. 1. Mental Health Progress notes dated 13 June 2019 at 9.48am attended by a psychiatrist and medical officer and a registered nurse records: 1. the impression of adjustment disorder with emotional/conduct disturbance 2. The risk of suicide/self harm was low 3. Applicant was future focussed 1. Discharge Document dated 13 June 2019 at 9:49am repeats information referred to (in the 9:08am notes), including: 1. Applicant was BIBP (Brought in by Police) on Section 22 "after expressing suicidal ideation and erratic behaviours following verbal altercation with her brothers when they came around to check up on her as she has been texting them and hinting at suicide for last several months"; 2. "She is reportedly a registered gun owner and has guns locked up in a safe at home which she doesn't have the key for as her husband had 'accidentally' taken them away whilst taking away his own guns"; 3. "ELU" reported that she found out 6 months ago that her husband of 10 years had sexually abused her biological daughter when she was younger"

Altercation: July 2014

1. On 19 July 2014, the Applicant was involved in a physical altercation with a man who entered the store where she worked. According to reports made to Police after the incident, the man entered the store, tripping on a step and subsequently arguing with the Applicant, leaving and returning to the store to verbally abuse the Applicant. It was alleged that the man lashed out with his elbow and struck the Applicant to the neck/upper chest area then to the side of the face with his hand while she was pushing him out the door. Once outside, the man started to walk away, and the Applicant told him to stay and grabbed him and attempted to hold him resulting in a struggle with both yelling for help.
2. A witness arrived on the scene and told the Applicant to let the man go as he was calling Police. The Applicant also called her husband who attended the scene. Police spoke with the Applicant and the man, who said that the Applicant was not pushing him but hitting him and he raised his arms to cover himself.
3. No further action was taken by Police in relation to the incident.

Altercation: November 2014

1. One afternoon in November 2014 Police were called after an incident occurred at a petrol station involving the Applicant - a COPS event was created. It was alleged that the Applicant approached another driver at the front door of the service station and abused him for pulling his car around her car (whilst she was taking her daughter on a learner driver lesson) and making a dangerous driving manoeuvre. The other driver told the Applicant to go away but she allegedly went to slap at him and slapped his hat off his head. The other driver pushed the Applicant away and alleged that the Applicant had tried to punch at him but missed, and then tried to get into his car and at his small dog. He pushed the Applicant out of his car and called Police. The Applicant drove off. The Applicant denied there was an assault.
2. Police spoke with the Applicant in relation to the incident. She told Police that she believed that the man had performed a very dangerous driving manoeuvre and that she lost her temper. She admitted that she should not have done what she did but she was just concerned for her daughter's safety. The man did not wish to provide a statement and did not wish to pursue the matter. The Applicant was advised to call Police the next time she did not agree with someone's driving behaviour.

Altercation: September 2019

1. In September 2019, Police were called to the Applicant's home in response to a report made by her then-estranged daughter who complained that her mother was "going crazy, screaming and mentally unstable". The COPS Event notes that "there are mental health issues" suffered by both the Applicant and her daughter.
2. The Applicant's daughter alleged that there had been an argument and the Applicant had pulled her hair and had caused her to hit her (already broken) leg. She also alleged assaults by family members in the past. Police formed the view that the Applicant's daughter was attempting to manipulate her and cause her further mental stress and anxiety.
3. The Applicant, with the encouragement of her brother, told Police that she would make an appointment with the local Chamber Magistrate to make an application for an AVO against her daughter in the near future.

traffic record

1. The Respondent also relied on the Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety as indicating a disregard for a regulatory scheme designed to ensure public safety. The record includes: 1. two offences of exceed speed by more than 30km/h but not more than 45km/h whilst driving a motor vehicle, 2. four offences of exceed speed limited by more than 15 km/h but not more than 30km/h whilst driving a motor vehicle, 3. one offence of exceed speed by not more than 15 km/h, 4. two offences of exceed speed by more than 10km/h but not more than 20km/h whilst driving a motor vehicle, 5. two offences of exceed speed limit by not more than 10km/h whilst driving a motor vehicle (camera detected), and 6. one offence of not wearing a seatbelt
2. As a result of one of these offences, on 21 May 2011, the Applicant was disqualified from driving for a period of three months; however, a good behaviour period was implemented between 25 November 2011 and 24 November 2012.
3. The Applicant's most recent offence was in July 2019 - exceed speed by more than 10km/h but not more than 20km/h. She said in her evidence though that she had not been driving the car - she had lent the car to her daughter, who, in turn had lent it to a friend at the time of the offence. She said that on 4-5 other occasions her daughter had been the driver and she had had the fines removed. Similarly, she said her daughter had been responsible for about 8 parking tickets.

Evidence of Donna Symonds, clinical psychologist

1. In support of her application for internal review the Applicant provided two reports from Donna Symonds, both dated 4 November 2019. Ms Symonds also gave evidence. It appears that the latter report was in fact dated 5 September 2020, as the Applicant had produced the identical letter with that date. Ms Symonds confirmed in her evidence that the second report was in fact dated 5 September 2020.
2. Ms Symons wrote that the Applicant's attendance was for the purpose of assessment and treatment surrounding family-based issues - a 'situational crisis'. Nonetheless, the Applicant had self-referred and requested the psychological report to support her application for re-instatement of her firearms licence. Ms Symonds wrote that, at the time of the first report, based on the Applicant's current presentation, there did not appear to be any factors which would suggest that she not be reconsidered for her gun licence. The report records the history taken from the Applicant, in which she had recounted her immigrant background and her recollection of various traumatic experiences, which, in Ms Symonds view, did not amount to a diagnosis of PTSD, and were not explored further. The Applicant had reported that her brothers had witnessed aspects of the emotional destabilisation and became highly concerned and were at a loss as how to deal with her. She considered the brothers had tried to act in the Applicant's best interest by calling the Police. She conceded though that, at that time, the assessment process was not complete. The first report notes "the incidents that caused the emotional destabilisation occurred over several years culminating in January (sic) of this year". In her evidence she said this was a typographical error and it should have referred to "months", rather than "years".
3. The report of 5 September 2020 notes "the incidents that caused the emotional destabilisation resulting in her admission to the [Facility] occurred over several month period culminating in June 2019", and repeated the history recorded in the first report. The Applicant was said to have feelings of remorse, despair, helplessness. Ms Symonds recorded that the Applicant did not have suicidal ideation "at this time".
4. Ms Symonds did not find any evidence of a psychological or psychiatric disorder. The report addresses the Applicant's suitability for admission as a lawyer, and in her evidence said this was the purpose of this report; it does not address the Applicant's possession or use of firearms.
5. In her evidence Ms Symonds said she had received only a copy of the Applicant's discharge papers from the Facility. She said that she regarded the Applicant's response to have been reasonable and that she was "highly distressed and was receiving no support from her brothers". She expressed no concerns about the Applicant's access to firearms, on the basis of her presentation.
6. In her evidence Ms Symonds said she was not sure if she knew the Applicant had learned several months beforehand that her husband and daughter were communicating.
7. She said that she regarded the Applicant's response to have been "significant but acceptable reaction to an abnormal and distressing situation".

Evidence of Sam Borenstein, clinical psychologist

1. In support of her application for review the Applicant provided reports from Sam Borenstein dated 13 August 2020 and 19 August 2020. Mr Borenstein was required for cross-examination but was unavailable.
2. The first report refers to the Applicant having been interviewed and assessed via audiovisual link on one occasion for the purpose of preparing a psychological report in support of her admission as a legal practitioner. It refers to his having been provided with material relevant to admission requirements and discharge documents from the Hospital. The report details a lengthy history given by the Applicant, including in relation to sexual abuse. Mr Borenstein noted the Applicant was "struggling with significant traumatic stressors". She reported no health or medical issues (and hence no mention of her female pattern baldness). He noted that the Applicant held a firearms licence up until her licence suspension, and recently sold part of her 100 acre farm as part of the financial settlement following divorce. The Applicant described herself as "normally very calm, rational". He described the events of 10 June 2019 as a 'situational crisis' where she acted "uncharacteristically in response to cumulative and significant stressors, reactivating traumatic memories …"
3. In the second report Mr Borenstein, who did not further interview the Applicant, addressed questions raised by the Firearms Registry in the internal review. He reiterated that there were no signs of mental illness, nor did the Applicant suffer from any mental health issues. He considered she did not pose any risk to public safety in having a firearms licence.

CONSIDERATION

1. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23].
2. The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public, including an applicant themselves. It is about identifying the possible risks, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36].
3. The principal issue in determining public safety is whether or not there is a risk to the safety of the public if the Applicant's licence to possess firearms is returned to her. The expression "public interest" is not defined in the Act, but it is well established that, in considering the meaning of that term, the Tribunal will have regard to the context in which it appears. The underlying principles and objects of the Act and the strict controls under the Act are extensive, and are emphatically concerned with protecting the public, and "making decisions that are consistent with a need to reduce any risks to a minimum". The concept includes 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] VicRp 6; (1991) 1 VR 63.
4. Firstly , in relation to the Applicant's driving history, I note that it is well established that traffic rules are designed for public safety: see Tannous v Commissioner of Police [2011] NSWADT116, at [32] and [37]. In Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, SM Scahill noted at [81] that: The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety.
5. The Respondent also relied on the Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety as indicating a disregard for a regulatory scheme designed to ensure public safety. The record includes a number of speeding offences from 1989 to 2011, and one in 2019. The Applicant disputes the most recent speeding offence, alleging that the car was being driven by another person. She produced an email, presumably addressed to her daughter asking who was driving. Similarly, she claimed that on 4-5 other occasions her daughter had been the driver and she had had the fines removed and that her daughter had also been responsible for about 8 parking tickets. These assertions were unsupported by any evidence at all, including the material she may have provided to the authorities to have the various fines waived, as she claimed occurred. Irrespective of whetehr her record is not as the Applicant claims, I consider that the Applicant's past poor driving record is to be afforded little weight, especially as the last offence, prior to 2019 was in 2011. That history does not, as the Respondent might suggest, indicate a current ongoing disregard for the law.
6. Secondly, the Applicant has come to attention and been the subject of reports where she has been involved in both verbal and physical altercations on 3 occasions in July 2014, in November 2014, and in September 2019.
7. As to the incident in July 2014, there were conflicting accounts of what occurred. There did not however to be any dispute that the Applicant had pushed the man out the door. Her action, by her own account, was with sufficient force that the man collided with the door and dislodged it from its track and it fell to the ground. When the man attempted to walk away, she grabbed him by his shirt and attempted to hold him resulting in a struggle with both yelling for help. When Police spoke with her she was considered her to be "highly emotional". The man admitted to pushing the Applicant, as, he said, he wanted to get away, as she was hitting him, and this account was confirmed by the witness.
8. No further action was taken by Police in relation to the incident, either in relation to the Applicant or the man. The Applicant said she was not aggressive and that she was defending herself. She said the man had grabbed her phone when she took his picture so she was unable to phone the Police. She said in her evidence that if she had been aggressive then she would have been arrested. I consider the Applicant's explanation to be one of obfuscation.
9. As to the incident in November 2014 Police in which the Applicant was involved in an altercation with another driver, the Applicant verbally abused another driver and she slapped his hat off his head. The other driver pushed her away and and then tried to get into his car and at his small dog. When Police spoke with the Applicant in relation to the incident she told Police that she believed that the man had performed a very dangerous driving manoeuvre. She conceded that she lost her temper.
10. In September 2019, Police were called to the Applicant's home in response to a report made by her daughter who complained that her mother was "going crazy, screaming and mentally unstable". I accept that there were, at least at that time, some conflcit between the Applicant and her daughter. I do not know if the allegation of the Applicant having hit her daughter is true, and I have disregarded it.
11. The incidents of July 2014 and November 2014 suggest that the Applicant has difficulty controlling her behaviour and seeks to take matters into her own hands rather than contact Police. The Applicant has repeatedly described herself as "assertive", rather than "aggressive". Her conduct on each occasion was much more than "assertive" as the Applicant claims, and on each occasion resulted in physical contact. This raises concerns regarding future possible conduct of the Applicant if she becomes frustrated or angry at a situation, particularly if she has access to firearms.
12. The Applicant said that she had been the victim of abuse as a child, and raped on two occasions, so was "angry". She described herself as "a survivor". She said she is from a different culture and that what may be perceived as "aggression" is assertiveness. She said she had called the Police on numerous occasions and was critical of Police for including a limited number of COPS events.
13. Thirdly, and clearly the most important issue in relation to safety, is the Applicant's mental health.
14. The Applicant considered that the events of 2012 were irrelevant because they related to her daughter, and not her. It was clear though that Police reported that the Applicant behaved in an "unusual and irrational manner" which indicated to Police that she may have mental health issues of her own. Mental health staff considered the Applicant was in more need of help than the daughter. I cannot disregard this history.
15. There were some other features of the Applicant's evidence relevant to her mental health which were inconsistent. For example, in contrast to the MH Current Assessment date 10 June 2019 at 5:34pm where the Applicant was recorded as telling hospital staff that she did not have the keys for her gun safe as her husband had 'accidentally' taken them away whilst taking away his own guns. This contradicts what the Applicant told SC Cregan, namely, that the keys to her safe were in a shoebox in her office. When they could not be located the Applicant said by 'shoebox' she meant the box in which she keeps her shoes at the end of her bed. Similarly, in the MH Progress Note dated 11 June 2019 at 2:21 it was recorded that the Applicant was unable to disclose location of keys for the safe in her residence as they are hidden very well. This comment is again inconsistent with the evidence provided by the Applicant regarding the location of her safe storage keys. Further, when the keys were subsequently located the Applicant's explanation was that her husband must have moved them.
16. The Applicant also repeatedly told hospital staff that she found out 6 months ago that her husband of 10 years had sexually abused her biological daughter when she was younger. It is noted that the Applicant has been aware of such allegations since at least 2012, as discussed above. She also gave a history to both clinical psychologists of becoming aware of the matter over the preceding several months, which is clearly incorrect, and necessarily affects the weight that can be given to their evidence.
17. The Applicant was adamant in her evidence that that she was not assessed at the Facility on 11 June 2019. However a Progress Note Medical dated 11 June 2019 at 2:42pm, clearly records that the Applicant was seen by a Senior Medical Officer for "diagnostic consideration for adjustment disorder or possible major depressive disorder".
18. According to the MH Progress Note dated 11 June 2019 at 7:03pm the Applicant said she had not used her guns in 2-3 years". Given that the Applicant was only issued with a firearms licence in 2016, this comment appears to be inconsistent with her evidence regarding her use of firearms that nowadays, before her licence was suspended, she goes out shooting in groups, including for vermin control, although she is not always the shooter.
19. The Mental Health Progress notes dated 12 June 2019 at 2:45pm clearly record that the care plan was that the Applicant would be reviewed the following day. This comment is again inconsistent with the evidence provided by the Applicant, that she only remained at the Facility in order to speak with a female doctor. She said in he evidence that she asked then to speak to a female doctor, but there was no evidence of this in the hospital notes.
20. The Applicant said that her delayed discharge was due to it being a long weekend. I observe though that the June long weekend in 2019 was 8 - 10 June, and that the Police had been called to the Applicant's home on Monday 10 June, the public holiday, and she was discharged on Thursday 13. Consequently, I reject her contention that her prolonged admission was not merely a product of it being 'a long weekend'.
21. In her evidence and in the history given at the Facility and to the clinical psychologists the Applicant consistently blamed the events on a lack of support from her brothers. She reportedly told Ms England that she had been estranged from her brothers until recently, because of her pregnancy out of wedlock. This is inconsistent, it appears to me because she had lent one brother a large sum of money and the other sought her out to assist with employment; the Applicant's pregnancy was about 20 years ago. I accept that the Applicant has had a difficult relationship with various members of her family, but her reaction on 10 June 2019 was excessive.
22. Contrary to her evidence that she would not discuss her history of sexual abuse with a male health practitioner, Mr Borenstein's first report describes the details in the history given by the Applicant in this regard, in the single video interview. It was not, as may be said about Ms Symonds, that they had developed a rapport.
23. Mr Borenstein, was, as I have observed, unavailable for cross-examination. His initial report was prepared for the purpose of the Applicant's application for admission as a legal practitioner. In his second report he wrote that he considered the Applicant did not pose any risk to public safety in having a firearms licence. As I have observed, however, this view was formed on the basis of one video interview. He appears to have been provided with the discharge summary from the Facility; consequently, he is unlikely to have been aware of some of the features of the Applicant's presentation at the time she was scheduled, and during her hospitalization. He would have therefore been entirely reliant on the history given by the Applicant. His report, in my view, can only be afforded minimal weight.
24. Further, the Applicant told Mr Borenstein that she is "normally very calm" which is clearly at odds with the evidence of her behaviour in engaging in altercations.
25. Ms Symons is the Applicant's treating psychologist. Her sessions were specifically not provided for either medico-legal purposes or medico-legal reports surrounding application for a firearms licence. Like Mr Borenstein, she also had received only a copy of the Applicant's discharge papers from the Facility.
26. The first report records the history taken from the Applicant, in which she had recounted her recollection of various traumatic experiences, but, according to Ms Symonds, these did not give rise to a diagnosis of PTSD, so they were not explored further. However, time and again in her evidence and in her discussions at the Facility, the Applicant referred to her past experiences of abuse. Having discounted these experiences, Ms Symonds' focus appeared to be at odds with that of the Applicant. The Applicant had reported that her brothers had witnessed aspects of the emotional destabilisation and had become highly concerned and were at a loss as how to deal with her. Ms Symonds considered the brothers had tried to act in the Applicant's best interest by calling the Police. The first report notes "the incidents that caused the emotional destabilisation occurred over several months culminating in June of this year".
27. The report of 5 September 2020 notes "the incidents that caused the emotional destabilisation resulting in her admission to the [Facility] occurred over several month period culminating in June 2019", and repeated the history recorded in the first report. The Applicant was said to have had feelings of remorse, despair, helplessness. Ms Symonds recorded that the Applicant did not have suicidal ideation "at this time".
28. Ms Symonds did not find any evidence of a psychological or psychiatric disorder. The report addresses the Applicant's suitability for admission as a lawyer, and in her evidence said this was the purpose of this report; it does not address the Applicant's possession or use of firearms, although in her evidence did not have any reservations about the Applicant having access to firearms.
29. Ms Symonds' first report notes "the incidents that caused the emotional destabilisation occurred over several years culminating in January (sic) of this year". In her evidence she said this was a typographical error and it should have referred to "months", rather than "years". It is difficult to reconcile this observation in either of its iterations with the events in June 2019. Firstly, the Applicant was aware of the alleged abuse of her daughter since about 2012. In January 2020 she learned that her daughter and her husband were still communicating. This does not, in my view, address the Applicant's apparent deterioration which so alarmed her brothers and culminated in her being taken to the Facility. In her evidence Ms Symonds said she was not sure if she knew the Applicant had learned several months beforehand that her husband and daughter were communicating. Ms Symonds also had no knowledge of the Applicant's altercations that required Police attendance, nor her conduct in 2102 when her mental health was considered to be of greater concern than her daughters.
30. Given the observations of SC Cregan and the various hospital notes, it is doubtful that the Applicant's response to the 'situational crisis' could be described as Ms Symonds did, as "significant but acceptable reaction". Ms Symonds was briefed with limited material and relied on the history given by the Applicant. For example, in her evidence Ms Symonds said that she regarded the Applicant's response to have been reasonable and that she was "highly distressed and was receiving no support from her brothers", when clearly it was her brothers that had raised the alarm about the Applicant's behaviour.
31. With regard to the reports from Ms Symonds and Mr Borenstein, it is relevant to note the decision in Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311 at [44]-[51] where JM Molony held that an expert medical opinion should be given no weight where it fails to contain sufficient details and reasoning to support the opinion expressed; fails to provide the criteria applied to reach any conclusions; and fails to outline the history taken and understanding of the facts applied to the criteria in order to reach the opinion.
32. Even if I were to accept the views of the clinical psychologists, there is too much uncertainty regarding the Applicant's mental health for the Tribunal to be satisfied that there is virtually no risk to public safety if the Applicant was granted a firearms licence.
33. In AML v Commissioner of Police NSW Police Force [2013] NSWADT 5 (AML), at [23], the Tribunal held that while both effective treatment and a lengthy period of stability are relevant, they are not mandatory. The Tribunal has previously considered 15 months from the date of an applicant's suicide threat to the date of the Tribunal's decision to be an inadequate period of time for it to be satisfied that there was virtually no risk, despite a psychologist's report that the risk posed by the applicant was low: Allan v The Commissioner of Police [2008] NSWADT 230 at [33] - [34].
34. The Respondent submitted that it is also important to note that when considering whether there is "virtually no risk" to the public, the Tribunal should consider the risk to the Applicant herself, as a "member of the public": Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117 at [74].
35. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. I cannot be satisfied that having regard to the matters identified above, in particular the Applicant's mental health and her history of aggression, that there is virtually no risk to public safety (including the Applicant's own safety) if the Applicant were given access to a firearm at this time.

DECISION 1. The decision under review is affirmed.

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: 11 November 2020