Freier v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-09-16

REASONS FOR DECISION

The Applicant, Mark Freier has held a Category AB firearms licence since 2010. On 8 February 2023 his licence was suspended following a report from his General Practitioner that the Applicant claimed he was suicidal, and on 7 December 2023 the Respondent decided to revoke the Applicant's licence, on the basis that there were concerns that his ability to possess and use firearms may be impaired. That decision was affirmed on internal review. The Applicant now seeks review by this Tribunal.

Relevant legislation

The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act: 3 Principles and objects of Act (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 sales of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

Evidence

The Applicant provided a lengthy statement. He gave evidence and was cross examined. He also provided a statement from his wife, Marcel.
He provided references from: 1. Andrew Eppelstun dated 18 May 2024 2. Rob and Jodi McLeod dated 14 June 2024
The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act), and later, supplementary material, largely extracted from material provided under summons.
Material filed by the Respondent included two body worn video (BWV) recordings made by Police when they attended the Applicant's premises on 7 February 2023. I reviewed the BWV after the hearing.
The Respondent also relied on a confidential Statement of Acting Inspector Nathan Vedder dated 26 April 2024 and evidence given in a confidential hearing. I do not propose to discuss in open Reasons any material that was presented on a confidential basis. Those parts of the Reasons that are not to be disclosed are identified as "[Not for publication]", and Orders are made accordingly: s 64 of CAT Act.
Both the Applicant's counsel and the Respondent's representative provided helpful written submissions.

Tribunal's approach

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 before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a 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. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].
At hearing, a certificate was issued to the Applicant under s 128 of the Evidence Act 1995 in respect of his evidence about cannabis use.

What does the Respondent contend?

The Respondent relied on a number of bases as to why the Applicant should no longer have the privilege of holding a firearms licence: 1. His mental health, and hence he may not personally exercise continuous and responsible control over firearms: s 24(2)(a) and s 11(3)(a) 2. Provision of false or misleading information in his renewal application: s 24(2)(b) 3. Failure to meet participation requirements associated with his genuine reason: s 24(2)(d) and cl 107 4. It is not in the public interest for him to hold a firearms licence: s 24(2)(d) and cl 20

Is the Applicant presently a fit and proper person to hold a firearms licence?

The Applicant's mental health was especially relevant, it was submitted, to the fit and proper person test. The Respondent submitted that the Tribunal should not be satisfied the Applicant is a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace.
The question whether a person is "fit and proper" is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities: per Toohey and Gaudron JJ at 380. In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.

Applicant's mental health

The Applicant's evidence included a chronology of his history of mental health issues.
In 2001, he became involved in industrial action against his (then) employer. He wrote in his statement that he "became disillusioned with public law and the whole industrial episode brought on [his] first experience with depression". Before me he explained that he had been defamed on TV by the Premier of Queensland. He also wrote that "good counselling, hard physical training, and Cognitive Behaviour Therapy (CBT) had pulled [him] out". When asked in cross examination if, as a result of those strategies, his mental health had returned to "baseline", the Applicant said he did not know. He had improved somewhat but was still experiencing the "fallout" from having his career destroyed, and he was worrying about providing for his family. He said in his evidence that depression is more about functionality eg his eating and sleep patterns were affected, and he experienced no joy.
In 2004 the Applicant experienced his "second episode of depression (or a relapse of the first)" around the time he was dismissed. He started a handyman business to make ends meet. He found though that his previous regimen wasn't enough and he required antidepressants.
He said in his evidence that there were a "couple more" episodes between 2004 and 2014.
The Applicant wrote that in 2018 he "fell into a depression again due to the toxic workplace and long-term bullying and sexual harassment from [his] manager." He was treated for depression privately again and kept on working, he said, as he was too ashamed to make a WorkCover claim at that time. He was again prescribed anti-depressants.
In 2019, he made a WorkCover claim and "was asked to put in a complaint about workplace culture and systemic doctors' fraud. Again, he said, he became involved in industrial action. He "slipped further into depression". In his evidence he said that he was on a "cocktail" of 4-5 different medications and also had regular counselling, and undertook physical training and meditation, as he had previously done. It was not until he received treatment from Dr McDornan that the combination of medications was sorted out. It was then that it was decided to "take it to the next level" and he commenced Transcranial Magnetic Stimulation (TMS) in 2022. That treatment entailed daily outpatient sessions for 6 weeks. In 2023 he was admitted to Currumbin Hospital where there treatment was administered twice a day for 3 weeks. Earlier this year he again had the treatment as an out-patient.
In 2023, the Applicant "was dismissed for the psychological injury [his] employer was responsible for". The workers compensation insurer accepted that he is totally and permanently incapacitated for work due to his mental health.
The Applicant claimed it is this 2023 episode of depression associated with his employment that brought him to the attention of Police in relation to his firearms licence. In fact, he came to the attention of Police as a result of emails to his treating doctors. From the timing, it would appear that shortly before an altercation with his daughter the Applicant sent an email to his treating medical professionals, including his General Practitioner, Dr Kevin Wang: FYI Gents/Doctors I am suicidal. Have been for the last week or so. And the most pathetic thing is I've got no-one else to even tell that to but you lot (who probably should know by ay of courtesy anyway) - but I've burned everyone else. Don't bother ringing. I'm so fucking sick of waiting, failing everything. I will make my next appointment with Matt this Thursday morning. FYI Mark
Later, the Applicant sent them another email saying "an hour or so after the [previous] email I assaulted my daughter. If she'd have been male, I'd have dropped the c…. I guess that makes me sexist as well as violent". He said though that the second email was simply an attempt to exaggerate the incident to "hasten a bureaucratic stifling of his assistance packages".
The next day, Dr Wang contacted 000 and requested a welfare check on the Applicant. At that time, the Applicant was off his psychotropic medication prior to commencing new medication.
The BWV of when Police attended the Applicant's home depicted: 1. Marcel saying she had asked the Applicant for the keys to his firearms safe notwithstanding that the Applicant had said he "wasn't going to do anything". The Applicant explained in his evidence that that was the first time she had asked for the keys. 2. Marcel saying that the Applicant "dragged their daughter out last night". The Applicant said in his evidence that this was the first physical altercation with his daughter. 3. The Applicant informed Ambulance officers that "I've been sort of fluctuating between ambivalence towards life at best and suicide for the last couple of years". 4. The Applicant said that he has never tried to hurt himself before, but when he was if he had you got a plan he responded "I'm not answering that".
On 17 February 2023, Marcel told Police that the Applicant had voluntarily checked himself into the Currumbin Clinic as an in-patient.

Medical evidence

In response to a summons issued at the request of the Respondent, Dr Wang produced a large volume of documents relating to the Applicant (as well copies of reports from other treating professionals) including that: 1. the Applicant has taken various psychotropic medications since at least since 2018 and that the dosage has fluctuated over time 2. the Applicant routinely sought treatment from various General Practitioners for his mental health issues 3. the Applicant has previously relapsed and succumbed to further periods of depression 4. the Applicant has previously engaged in regular (and, in some instances, weekly) sessions with his psychologists including with Peter Delany between around October 2019 and May 2020, and 8 February 2021 and June 2021 5. In Mr Delany's report dated 11 November 2019, he wrote "I told [the Applicant] about the concerns of potential self-harm raised with me by his workers compensation insurance case manager on Friday afternoon. Mark assured me that he was not at risk of self-harm and guaranteed me that he would contact me directly and immediately if that changed in any way'". 6. Dr Jean Ashton's consultation notes dated 18 January 2021 state "depression - relapse", "suicidal ideation no active plans" and "considering psychiatric r/v (review)". Dr Ashton's consultation notes dated 29 January 2021 state "depression chest pain last night, neg troponin, palpitations, presented to M'bah Hospital, no cardiac concerns, attributed to anxiety" and that the Applicant was having difficulty arranging a psychiatric review. 7. Report of Daniel Murphy, clinical psychologist, dated 29 September 2021 which states "Mark reported recently experiencing a significant deterioration in mental health which included emotional overwhelm, feelings of hopelessness, and suicidal ideation. To his credit Mark pulled himself out of this poor mental place with a concerted effort and routine involving exercise, meditation, and connecting with nature. Mark exhibits a strong internal locus of control which is certainly one of his strengths. Yesterday Mark reported that his mood had improved significantly from its lowest point and that he had not experienced any suicidal ideation for about one week". 8. In his report of 19 May 2022 Dr Jeff Bertucen, Consultant Psychiatrist, wrote that "[the Applicant] still experiences fleeting self-harming ideation, although no active intent. On the day of interview, the Montgomery-Asberg Depression Rating Scale score was 29 which is in the high-moderate range of depressive symptomatology". 9. Dr Ashin Majumdar's, psychiatrist, in his report dated 8 September 2022 wrote: 1. "[the Applicant] complained of being sad and depressed all the time, feels hopeless about his future, does not enjoy anything, feels guilty of many things he has done, feels that he is being punished, is critical of himself, has had ideas of self-harm, often cries, feel agitated and restless..." 2. "treatment to date and outcome... He reports some improvement, mainly the thought of self-harm and he is not as depressed as before" 3. "… his mood was depressed with diurnal variation. There is no suicidal thoughts. there is no evidence of any thought disorder. 1. In an email from Mr Murphy to Dr Wang dated 22 September 2022, Mr Murphy said "Mark is emotionally overwhelmed and despondent after receiving the news about his claim and presented yesterday as very flat and numb. He reported experiencing intrusive suicidal ideation. Mark denied having any plan or intent but needs frequent monitoring at the moment". 2. In an email from the Applicant to a number of medical practitioners dated 9 February 2023 he wrote "just for a snapshot of the broader picture, here's my past week: had been experiencing increasing suicidal ideation for the previous couple of weeks before this Monday. Increasingly isolation. Loss of more relationships. Monday was a new low, with strong feelings to 'end it' and a range of new ideas for how to do so. That night I was verbally attacked by my daughter for failing to feed her dog correctly. I fully lost my shit and ended up dragging her by her hair to throw her out of my house. I assaulted my daughter. I became that kind of grub. My family, already in tatters, is now completely destroyed... Wednesday the same two police returned and seized my firearms and license. Despite making full disclosure on firearms at all times, now I can't be trusted... I am happy to pay anyone's fees for this additional service/support for the inter-professional communication. I am desperate for some progression on any front and I'd love to think about none of this shite for a little while - though that never becomes possible". 3. The discharge summary from Currumbin Clinic dated 16 March 2023 states "Mark reports that he thinks the recent treatment at Currumbin Clinic had some positive impact. Specifically, Mark reports that he is no longer experiencing suicidal thoughts. His mood and motivation levels remain low". 4. In an email from Mr Murphy to Dr Wang dated 15 August 2024 "Mark reports that his mood and function are significantly improved. He has not experienced suicidal ideation since 2023. Mark reports currently exercising regularly and consuming very little alcohol. He reports recently experiencing increased stress in response to some external stressors but is coping well and his improved mental health has been maintained over a period of a few months".
The Applicant described his current mental health as being different to when he wrote the emails in February 2023. He said he followed the medical advice but he his still not "100%". He added that, even "at his worst", though, he had never thought of using firearms. Even though his functionality has varied, he has "never lost his moral compass". He said that he has been guilty of being too direct and wearing his heart on his sleeve. He finds it deeply offensive that it is suggested he may be a threat to public safety.

Reports of Dr Matt McDornan, consultant psychiatrist

The Applicant's treating psychiatrist, Dr Matt McDornan, provided a report to the Firearms Registry dated 13 May 2024. There, Dr McDornan, who has been treating the Applicant for over three years, wrote that the Applicant has been diagnosed with Major Depressive Disorder (MDD). As to to how the Applicant's diagnosis would affect his fitness to possess and use firearms, he wrote that MDD is an (sic) episode condition and that when in a depressive episode the Applicant experiences low mood and an array of depressive cognitions, including a sense of futility and frustration. This is often balanced with a future view and protective thoughts of his wife. The Applicant had never voiced to him the intent to use firearms in this state and he has never voiced intent to use them as a form of self-harm. Significantly, it appeared to me, he wrote that given that major depression is an episodic condition, it cannot be ruled out that the Applicant's impairment may impact on his ability to exercise responsible control over firearms or continuous control. However, even in the most depressed state in their clinical contact to date, this has not been part of the Applicant's thinking and is unlikely to be in the future. He considered that it was possible that the Applicant will relapse into a major depressive event, although he did not believe nested in this will be a change in his view of how he relates to firearms. He noted that the Applicant has held firearms since he was 12 and used them responsibly for the last 43 years without incident. (The Applicant in fact has only a licence since 2010.) He considered the Applicant to be someone who is not likely at all to use firearms in terms of self-destructive thinking. As pointed out and explored in multiple clinical contacts, this is not "part of his code". He had also taken a collateral history from Marcel, a nurse, who is of the same view. He opined that the Applicant's condition does not have the potential to put public safety at risk if he were to have the possession and use of the firearm because this is "completely outside his belief system". He considered that it is possible that the Applicant will have another depressive event but "did not think at all it drives risk regarding firearms in the community".
Dr McDornan provided an updated report dated 20 August 2024. There he wrote that in the over 3 years he has been treating the Applicant he has seen him over 40 times. The Applicant has undergone TMS on 3 occasions, the most recent of which, according to the Applicant was in March 2024. The doctor described the Applicant's mood as "partly repaired" and noted that the Applicant has "residual depressive experiences" but these were "much reduced in intensity". He did not consider the Applicant to pose a risk to public safety.
The Applicant also told Dr McDornan that from time to time he self-medicated with cannabis. The doctor referred to "large amounts". The Applicant said if he was "having an episode" he might have 2-3 joints a day for 2-3 days. The Applicant agreed in his evidence that he had used cannabis from time to time since 2001, especially when he was trying to reduce alcohol while taking anti-depressants. He denied though he had used "large amounts". He described his use as "very occasional" which is somewhat inconsistent with what he had told the doctor. He appears from the summons material to have given a history on admission at Murwillumbah Hospital on 29 January 2021 that he was a "non-smoker/drinker/drugs".
In May 2022 he told Dr Jeff Bertucen, consultant psychiatrist, that he had used cannabis only once that year. In cross examination the Applicant did not answer directly whether he was using cannabis during the incident in February 2023. He said that he would roll a joint - 50/50 cannabis and tobacco. He admitted he had used cannabis since February 2023, but not during the present calendar year. This is consistent with Dr Wang's notes of 21 January 2024 that the Applicant was not using tobacco or THC ie cannabis. The Applicant said that doctors were more interested in the effect of alcohol on prescribed medication. Dr Wang took a history on 21 January 2024 that the Applicant drank 5 standard drinks a day.

Conclusion in relation to the Applicant's mental health

In Sweet v Commissioner of Police. NSW Police Service [2000] NSWADT 185 (Sweet) the Tribunal considered the meaning of "unsound mind " in the context of the Act, as follows, at [27]: ... To be of "unsound mind" a person's mental condition must at least have the potential to put public safety at risk if that person has the possession or use of a firearm. ...
The turn of phrase "unsound mind" is somewhat archaic and, to be labelled as being "of unsound mind" is, no doubt, deeply offensive to those in the community who have the misfortune to suffer from mental health issues. This, nonetheless, is the test which I must apply: whether the Applicant may not personally exercise continuous and responsible control over firearms because of his being of "unsound mind". I repeat the contextual explanation in Sweet that provides a focus on the potential risk to public safety.
It is uncontroversial that the Applicant has suffered with bouts of depression on and off for over 20 years. It is likely that the episode in February 2023, namely the escalation of the altercation with his daughter and subsequent assault, was, at least in part, an indicator of his mental health at the time.
The Applicant's own evidence included admissions of suicidal ideation. The Applicant denied that he was suicidal when he sent the emails, claiming he was frustrated about the progress of his workers compensation claim. He said that his use of the words "I am suicidal" in the email was to express a feeling of "utter distress and feeling futile about the future", that he was "much less functional then and damaged to the point that [his] filters were in disarray" and it was a "plea for help". It was submitted on his behalf that it was a "cry for help".
The evidence though was that, on at least three occasions over a period of three consecutive years, the Applicant experienced suicidal ideation. He wrote in his statement that he had "a brief flirtation with suicidal ideation (which is fantasizing about or thinking about how you might do it)". The medical evidence is that he had multiple episodes of suicidal ideation. Most recently, in February 2023, his wife, for the first time, requested his keys to his firearms safe, notwithstanding that the Applicant said he was "not going to do anything". I accept that she held a genuine concern that the Applicant may use a firearm for the purpose of self-harm.
He wrote that the "scales of suicidality descend from ideation, to acting out, to attempts, to finally committing suicide" ultimately concluding that he was "at the top of that scale and even then, only momentarily". I accept the Applicant's evidence that when he has had suicidal thoughts he has not taken active steps and that firearms have not been involved.
I consider though that the Applicant sought to downplay the risks of self-harm arising from his mental health issues, by obfuscating in relation to his suicidal ideation, belabouring the distinction between "suicidal ideation" and being "actually suicidal". While I have accepted that he has never attempted suicide, it is clear that he has had thoughts of suicide on multiple occasions. Disturbingly, following the incident in February 2023 he told Police and NSW Ambulance that he has been "sort of fluctuating between ambivalence towards life at best and suicide for the last couple of years" and he refused to answer an Ambulance officer's question about whether he had a plan to self-harm.
The Applicant has a lengthy history of treatment for his MDD which has resulted in periods of remission but, he has experienced multiple relapses and succumbed to further periods of depression. While Dr McDornan is generally positive about the Applicant's response to treatment he wrote that "it cannot be ruled out that Mr Freier's impairment may impact on his ability to exercise responsible control over firearms or continuous control" and "it is possible that Mr Freier will relapse into a major depressive event, although I do not believe nested in this will be a change in his view of how he relates to firearms".
I accept that the Applicant has made good progress under Dr McDorman's care, in addition to positive lifestyle changes. The Applicant has, however, undergone TMS treatment as recently as March 2024 which suggests that his condition requires, even relatively recently, clinical intervention beyond more typical treatments for depression.
Some of the Applicant's depressive episodes have coincided with family issues; some were a response to work-related issues. There may have been other triggers. While I acknowledge that the Applicant is estranged from some family members with whom he has been in conflict, the risk would be increased in the event that there was renewed conflict with them. Similarly, notwithstanding that he has been considered to be totally and permanently incapacitated for work due to his mental health, consistent with his strong work ethic, he remains interested in undertaking gainful employment and if he did so he may experience further adverse mental health issues as a result. I consider that if the Applicant were to suffer a further period of depression or experience a relapse in his mental health condition, there is a reasonable risk that he may not personally exercise continuous and responsible control over his firearms.
The Applicant may pose a threat to the public, including himself, if his firearm licence were to be returned. I am comfortably satisfied that there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because he is "of unsound mind". I repeat my acknowledgment of the likely offensiveness of this turn of phrase, but its use is unavoidable in view of my findings.

False or misleading information: s 24(2)(b)

The Applicant was referred in cross examination to his original firearms application dated 25 January 2010. There, he answered "No" to the question "have you in NSW or elsewhere... ever attempted suicide or self harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness? The Applicant said in cross examination that he could not remember if he was treated for a metal disorder during the 12 months before the application. He said he was not sure he accepted that he had a mental disorder during that time, and that it was not until he saw Dr McDornan that he saw for the first time MDD to describe his condition. Prior to that time he did not consider he had a "disorder".
When the Applicant re-applied for a licence on 2 April 2015 he again answered "No" to the question about whether he had suffered a mental illness in the previous 12 months. In his evidence he said he could not recall if he was receiving treatment then. He said he simply signed the form again declaring that he believed everything was true and just paid the requisite fee.
Again, in his licence renewal application made on 21 April 2020, the Applicant answered "No" to the same question. In cross examination the Applicant said that he accepted that the answer was wrong, but did not accept that it was "false", by which I understood him to mean deliberately false. He did not believe he had a mental disorder, and claimed, at that time, he had not yet been diagnosed with MDD. He acknowledged that he was aware though he was receiving treatment consistent with depression and anxiety, and had made a workers compensation claim to that effect.
The form requires an applicant to declare that, amongst other things, that they understand that it is a serious offence under the Act to make a statement or provide information that they know is false or misleading. The Applicant said he "likes to think" he read the declaration. He conceded that he "got it wrong", but denied he had attempted to mislead the Firearms Registry about his mental health. He said he may not have read the question well, and that at that time he was (in some unspecified way) "struggling".
The Applicant wrote in his statement that it was the first time he had completed the firearms renewal online and may have just 'tick & flicked' the answer and not fully read the question. He observed that the question starts talking about suicide, then alcoholism and drug dependence over the last 12 months, none of which applied to him, and so he might not have fully read to the end of the question.
Somewhat inconsistently the Applicant wrote in his statement that he was "in a state of denial" about the nature of his condition, which, he said, is a classic symptom of the condition. He did not believe he had a 'mental disorder' as asked in the question. In any event, he was not sure if at that time he considered depression to be a mental disorder.
I observe that, at that time, the Applicant had been attending regular sessions with his treating psychologist, Mr Delany, according to his report of 3 April 2020. He wrote there that the Applicant's depression and anxiety were not resolved. He observed that the Applicant had in fact "gone backwards" from when he had seen him the previous month.
Further, on 17 April 2020, only a few days before he submitted the renewal application he saw Dr Ashton. The doctor observed that the Applicant had been speaking with his psychologist, Mr Delany "all week". Dr Ashton's notes confirm that the Applicant continued the prescription of the Applicant's anti-depressants.
The Applicant's answer in his 2020 renewal application was clearly incorrect and I consider that, had he turned his mind to the question, he must have known that his response was false, if for no other reason than he had an ongoing workers' compensation claim relating to his mental health and he was taking anti-depressants. The 2020 Application was completed within days or weeks of the Applicant seeing medical practitioners in connection with his mental health issues. I do not accept that the Applicant did not believe he was being treated for a mental disorder.
The alternative is that the Applicant did not read the question. This is not the case where the applicant is an unsophisticated person who has rarely been involved in much legal form-filling cf Hook v Commissioner of Police [2020] NSWCATAD 250. Rather, he practised as a lawyer from 1993 to 1997. He has held a number of senior positions, including in the Army Reserve. The Applicant understood (or ought to have understood) the importance of accurately answering questions in forms, particularly where he signed a declaration that the answers were correct.
I consider his failure to correctly answer the question, and thereby having provided false or misleading information in connection with the 2020 application, is given significant weight. Even if the error was a result of inattention, as he submitted, that level of carelessness is not appropriate from an educated licence holder.

Applicant's violence

According to the relevant COPS Event, on 6 February 2023, the Applicant was involved in a domestic violence incident with his daughter. She had returned home and saw a half-eaten hamburger in her dog's bowl. There ensued a heated exchange between the Applicant and his daughter in which she alleged that he had deliberately given her dog the hamburger which contained onion, which is apparently toxic to dogs. The daughter swore at her mother and then turned her attention to the Applicant. He told her to leave the house or he would drag her out. He said he told her he withdrew his consent for her to be at his house and she "laughed in his face". He reportedly grabbed her hair and arm, pulled her, clawing and kicking, towards the door and pushed her out of the house. In his evidence he accepted that he had assaulted her, but thought it was "reasonably justified", as most of the violence was "coming from her". Marcel attempted to reconcile the Applicant and their daughter but their daughter refused to participate due to her fears of the incident reoccurring. Their daughter subsequently called her boyfriend, collected her belongings and left the Applicant's home. They have not spoken since.
On 22 March 2023, the Applicant was served with an interim apprehended domestic violence order (ADVO) for the protection his daughter. That interim ADVO was ultimately withdrawn.
The Applicant attempted to downplay his conduct by suggesting that he had only "technically assaulted" his daughter and that "the merest unwanted touch can be an assault". I observe that while his summary of the legal principles in relation to assault may be accurate, given his admissions, he nonetheless assaulted his daughter in a way which was more than "technical".
[Not for publication]

Genuine reason and participation requirements in the Regulation

In the Respondent's submission, the Applicant's failure to comply with cl 107 of the Regulation is sufficient to justify the revocation of his licence, particularly given the Applicant's lack of insight into the seriousness of his failure to comply.
To be granted a firearms licence, an applicant must have a genuine reason for the licence. Also, when their genuine reason is "sport/target shooting", they must comply with the participation requirements set out in cl 107 of the Regulation. The Applicant's Category AB firearms licence was obtained for the genuine reasons of "sport/target shooting', "recreational hunting/vermin control". His licence had originally been granted on the basis of his membership of the Sporting Shooters Association Australia (SSAA) but his membership expired on 31 January 2012. There are no records of the Applicant ever complying with the requirements in cl 107 of the Regulation.
The Applicant said that he attended his local rifle range several times in the 12 months leading up to the seizure of his firearms in 2023 - twice to check out the facilities and different events with a view to joining that club, and twice more, as a casual member, to shoot both his .303 and his new .308. He has recently re-joined the SSAA. His attendances were minimal, that is, shooting twice, and he was not a member.
The Applicant said that even after his SSAA membership expired he thought he still had a valid genuine reason for his licence, namely for vermin control on rural land, which he was doing rather than going to a shooting club. He said he had never shot much at his own property other than to "sight in" the firearms with different ammunition and shoot some targets at a well-protected small range on the lowest and safest part of the property. He noted his Army experience in range setup and control. On a couple of occasions, he had set up some targets for some guests to have a turn with. He said he genuinely believed this was "sport/target shooting" that was permitted on his rural block. He thought it fairly accurately described the activity he was engaged in and which occurs in their part of the valley "all the time". He said he only recently learned that "sport/target shooting" is strictly limited only to membership of shooting clubs. This appears to be, at best, demonstrably naive in relation to his obligations as the holder of a licence and I observe that the Applicant has held a firearms licence since 2010. He has had ample opportunity to familiarise himself with the participation requirements associated with his licence.
The Applicant has undertaken shooting activities on his small farm and also on his neighbour's farm since his firearm licence has been issued. It was conceded that this may not be, strictly speaking, comply with the terms on which the licence was issued.
It was conceded that there was probably a failure to modifying his genuine reason grounds throughout the history of his holding a firearm licence: cl 15. It was submitted that his failure to meet the participation requirements in itself would be insufficient grounds to warrant a revocation. The Applicant's solicitor referred to my decision in Aloschi v Commissioner of Police [2021] NSWCATAD 64 (Aloschi), at [92]. In any event, cl 32(1)(b) provides that if a member of an approved shooting club (such as the SSAA) has recreational hunting/vermin control as their genuine reason for their licence they are authorised to participate in shooting activities other than those conducted by the hunting club, but only on rural land with the permission, relevantly, of the owner. A licensee must produce evidence of that permission if requested by Police to do: cl 32(3). Curiously, there is no requirement that the number of hunting sessions on rural land must equate with the obligations imposed as to frequency of shooting at a hunting club. Clauses 32 and 108 appear to be inconsistent in that regard.
In Aloschi the applicant had failed to comply with minimum gun club attendance requirements but had been given permission to hunt on a property for the purpose of recreation and for vermin control, and the evidence was that he would shoot at the property at least once a month for the previous 8 years. Because of these activities I was not satisfied that the applicant had contravened a condition of his firearms licence, nor contravened a provision of the Act. In any event I did not consider that the alleged breaches warranted the exercise of the Tribunal's discretion in s 24(2)(b)(ii) and s 24(2)(b)(iii) of the Act against the Applicant.
The present matter differs from Aloschi in that there was evidence only that the Applicant had engaged in "social shoots" at the McLeod's property and there was no indication that this included vermin control. Further, there was no evidence as to the frequency of these activities. The Applicant's evidence demonstrates he had a poor understanding of his obligations as a licence holder, a reckless attitude to the firearms licensing regime and a disregard for the importance of strict compliance with the Act and Regulation.

References

Mr Eppelstun, a former police officer was aware of the Applicant's "psychological issues". He considered the Applicant to have insight into his life. The Applicant, in his view, is not volatile, but there was no evidence that he was aware of the physical altercation between the Applicant and his daughter. He regarded the Applicant as a "thoughtful and considered" man, and that "wise" would be an appropriate word to describe him. He considered him to be the "archetype for a well-adjusted law-abiding citizen". Although Mr Eppelstun's reference was in very positive terms, it was difficult to reconcile some aspects of the reference with some of the evidence before me: for example, as I have said, there was no evidence that Mr Eppelstun was aware of the physical altercation between the Applicant and his daughter, which is at odds with his view that the Applicant is not volatile. He considered the Applicant to be "wise" which is contrary to the Applicant's conduct with respect to his daughter, and his failure to comply with the participation requirements, and his either deliberate or cavalier attitude to completing his re-application. The same applies to his observation that the Applicant is law-abiding. There was no evidence that Mr Eppelstun was aware that the Applicant had procured cannabis. While I accept Mr Eppelstun's observations that the Applicant is a valued member of the local community, for the reasons given above, I have reservations about placing great weight on Mr Eppelstun's reference.
Mr and Mrs McLeod were aware of the Applicant's "battle" with depression "on and off through his adult life". They had observed him become socially withdrawn and reclusive over the last few years but that he was "now emerging" from his "latest struggle". They wrote of his safety skills with respect to firearms and trust him sufficiently to have provided him with permission to shoot on their property. That they regard him as "now emerging from his latest struggle" suggests to me that notwithstanding their confidence in his safety skills with respect to firearms, there remained concerns that the Applicant was not yet free of his mental health issues.

Conclusion in relation to "fit and proper person"

I have expressed my concerns above in relation to the Applicant's mental health and the impact on whether he can be trusted to have possession of firearms without danger to public safety or to the peace. I observe the Applicant has engaged in threatening behaviour and that he had a physical altercation with his daughter. I have also found the Applicant had either deliberately or obtusely completed his firearms renewal application and failed to disclose his treatment for a mental health issue. I have also found that the Applicant failed to meet the participation requirements of his licence over several years. Section 11(3)(a) requires the Commissioner, and on review the Tribunal, to form a positive state of satisfaction 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": EMB v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 247 at [45]. The evidence now before me does not warrant such a positive finding and leads to the conclusion that the Applicant is not at present a fit and proper person to hold a firearms licence.

Public interest

The Respondent also contended that it is not in "the public interest" for the Applicant to hold a firearms licence: s 24(2)(d) of the Act and Clause 20 of the Regulation. Having found that the Applicant is not a fit and proper person to hold a firearms licence, it is difficult to envisage circumstances when it can be in the public interest for an applicant to hold such a licence. Nonetheless I turned to consider the "public interest" test.
The term is not expressly defined in the Act or Regulation. It is well-settled though that "the public interest" is to be considered relative to the objects of the Act and the firearms licensing system, with public safety being give paramount consideration: see, for example, Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. The Tribunal exercises the discretion in s 24(2) of the Act in accordance with the Act's objects and underlying principles as set out in s 3 of the Act. The Tribunal has repeatedly said that an applicant is not required to discharge an almost impossible burden of proving a near absolute negative, but, rather, the Tribunal must take into account 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 at [64]-[66]. Further, when assessing the public interest, only real and appreciable risk needs to be taken into account; minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32].
Any real and appreciable risk to public safety cannot be outweighed by the Applicant's interest in holding a firearms licence. 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 at [74]. The Applicant's mental health remains problematic, although he has shown promising changes under Dr McDornan's care and I accept that there is no evidence that he has ever taken any steps to carry out his suicidal thoughts, or his threats. However, the risk remains that this course may be open to him. That his wife considered it important to remove the keys to his gunsafe is particularly telling as to her perception of possible risk to the Applicant's own safety. There is, in my view, a real and appreciable risk to public safety.
I therefore find that it would be contrary to the public interest for a licence to be issued to the Applicant at this time.

Conclusion

My conclusion is therefore that the Applicant is not a fit and proper person to hold a firearms licence for the reasons discussed above, and it would be contrary to the public interest for him to hold a licence at this time. This does not, of course, preclude the Applicant from making another application for a firearms licence in the future.

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: 02 October 2024

At a glance

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Decision date

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Judgment (18 paragraphs)

Parties

Cases Cited (9)