Kavanagh v Commissioner of Police

NCAT Administrative and Equal Opportunity|2020-12-17

Applicable legislation

Section 11 of the Firearms Act contains general restrictions on the issue of licences. Section 11(3)(a) provides that "A licence must not be issued unless: (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace…."
Section 11 (4) adds some detail: (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of - (a) the applicant's way of living or domestic circumstances, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind.
A discretionary power to refuse to issue a licence is created by s 11(7), which reads: "Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest".
In this case the respondent does not contend that the applicant is not a fit and proper person to hold a licence, but rests his position on s 11(7) and s 11(4)(c). The issue in this case is thus whether the issue of a licence would be contrary to the public interest for reasons connected with mental health problems or alcohol use or both.

The evidence

The respondent did not call oral evidence but relied on the s 58 documents (exhibit R1) and other documentary material.
The applicant tendered an affidavit sworn on 9 November 2020 (exhibit A1) in which he described how he had enlisted in the army in 2009, and after basic training was posted to Laverack Barracks, Darwin. After corps training he was employed as a diesel mechanic at Laverack Barracks, Townsville, Queensland performing work involving inspecting, diagnosing faults, and dismantling and repairing a range of complex vehicles. That involved repetitive physical effort, often working with heavy weights and materials and performing greasy work in prone position and in noisy surroundings.
In 2012, his electrical and mechanical engineers unit, 3 Combat Services Support Battalion (part of RAEME) was involved in a major exercise in Queensland during which he sustained a disc prolapse back injury. His injury was treated by army doctors with prescription pain relief, physiotherapy and reduced physical exertion. Because of continuing back pain, he discussed surgical options with his treating doctors and underwent a spinal fusion on 24 October 2013.
He was medically discharged from the army on 21 April 2015, whereupon he was issued with a Department of Veterans Affairs (DVA) Gold Card to support ongoing treatment for tinnitus, spinal spondylosis, anxiety, alcohol misuse and other conditions. Following his spinal operation he continued to experience anxiety and began to misuse alcohol. During 2013 - 2014, he sought help from a Townsville psychiatrist, Dr Michael Likely.
In February 2015 his wife decided to relocate back to Newcastle, NSW. He obtained a compassionate transfer and relocated there also in April 2015 and continued with psychological care under Dr Larry Brash. As Dr Brash died suddenly in 2017, he continued his psychological treatment under Dr Geoffrey Robinson in Newcastle.
During his appointment with Dr Robinson on 22 February 2018, he discussed his interest in recreational hunting and in applying for a New South Wales firearms licence. He showed Dr Robinson the licence application form and sought his guidance on completing the personal history question, "Have you 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?" Dr Robinson said words to the effect of "Just say 'no' to that question". He took the doctor's advice and answered "No" to the question on the application form.
On 22 May 2018, he received a letter from the New South Wales Firearms Registry requesting a medical report to assess his suitability for responsibly possessing and using firearms [exhibit R1, p 23]. Dr Robinson submitted the risk assessment report requested by the Registry (exhibit R1, pp 33 - 34). Mr Kavanagh contacted the registry by email on 18 October 2018 to check on the progress of the application. An email the next day acknowledged having received Dr Robinson's report on 27 July 2018 and apologized for the delay in processing his application (exhibit R1, p 38). Then a registry letter dated 30 November 2018 informed him of the decision to refuse his application.
He applied for an internal review of the refusal decision on 21 December 2018 but withdrew it on 24 February 2019. Subsequently, on 19 December 2019 he submitted a new application for a category AB licence to the Firearms Registry. On 20 August 2020, eight months after lodging his application, he applied to the registry for an internal review under the provisions of s 75(1)(a) of the Firearms Act and in accordance with s 6(5) of the ADR Act on the ground of failure to make a timely decision. An internal review was not completed by the registry within the statutory 21-day timetable specified in s 53(6) of the ADR Act.
On 23 September 2020 he applied to this tribunal for external review of his application and received the notice of refusal from the registry on 20 October 2020.
In cross-examination at the hearing, Mr Grey for the respondent took the witness through the various documents in exhibit R1, including exchanges of emails relating to delays and other procedural matters. The witness explained that the first DVA card he received was not a gold card initially, but a white card, which was valid for medical treatment. The gold card he received in around 2016, which was the last time he had a change of cards. The gold card has authorizations for compensation and treatment of all conditions (including dental conditions), indeed almost all conditions, including those that have not been identified. His email of 24 February 2019 (id., p 50) closed the consideration of his 2018 application.
His medical discharge from the army had been by reason of his spinal fusion. After his back surgery he continued to suffer from anxiety and began to misuse alcohol for pain relief and to help him to sleep, which disturbed him, as his late mother had died from the effects of alcoholism. He had sought help from Dr Likely in Townsville, but his wife relocated to Newcastle, saying (falsely, it appears) that her aged father was mortally sick and she needed to be there to help him. It was not pleasant, but it was not a separation as such, he said.
After he also had moved to Newcastle, he undertook treatment with Dr Brash and was seeing him between September 2015 and October 2016 for his various conditions. After Dr Brash died in 2017, he began treatment with Dr Robinson, following a break of about nine months. At that stage he was not suffering from alcohol problems or anxiety, but needed to see a psychiatrist in order to have his medications changed. Dr Robinson also made use of cognitive behaviour therapy (CBT).
He had taken his 16 March 2018 licence application (exhibit R1, pp 17 - 18) to Dr Robinson and had a detailed discussion with him about how to answer question H(d), dealing with self-harm and treatment for alcoholism or a mental or nervous disorder in the previous 12 months. He had been concerned about how to answer the question, as he had been treated for alcohol problems and anxiety during the previous 12 months and did not want to lie, and he thought the answer would be "Yes".
Dr Robinson had said that he could not help the applicant if he marked "Yes". He was the expert, and he had discharged the applicant two weeks early from hospital. The applicant had placed a cross in the "No" box in the doctor's office and had completed the form later. It was not an easy decision and he had concerns about it, but the registry had said he needed to get his application in promptly because his Queensland licence would expire shortly, on 27 March 2018. He had moved to New South Wales on 15 April 2015, so as at the date of the application, 27 March 2018, he was a New South Wales resident, but thought his Queensland licence had continuing authority.
His DVA Gold Card covered psychological and psychiatric treatment, but this year (2020) he paid for his consultations himself, because they were not for treatment but for the purposes of his licence application. His stay in Maitland Private Hospital was not for the purpose of detoxification or alcoholism treatment, nor was he "scheduled", but because he was unable to sleep because of the stress he was under that was being caused by his family split. He was there in connexion with sleep, not alcohol, and that was the diagnosis. Dr Robinson has specifically said he did not require medication for detoxification.
Asked about a reference in the report to drinking while on hunting trips, the witness pointed out that alcohol was not consumed before or during a hunting episode, there was no ritualistic aspect to it and no impairment affecting his fitness to possess and use firearms. The drinking was after their shoots, not before. They would often go camping, leaving their guns in the firearms safe located on the property, or else in the 4WD. He could not say, however, that they had never been drunk.
He had stopped seeing Dr Robinson after their discussion about the form, but had to remain in contact with him. In January or February 2019 he had asked him for another report as he needed more evidence, but the doctor had said he would need a letter of request from the registry. The registry had said that they needed a report saying that there was "no risk" of danger to the public, and Dr Robinson was reluctant to do so as he would never write that someone was "no risk", although he supported the applicant's licence being restored (ref.id., 62).
The applicant had sought a second opinion from Dr Saker, seeing him on 8 January 2019 for about 30 minutes in connexion with the "no risk" point. He had approached him directly and not with a referral from his general practitioner, Dr Burford. At that time he was suffering from anxiety and depression following the separation. The report had referred to alcohol, but he disputed that. He had been prescribed quinitine from March 2018 to November 2018. It is an antipsychotic drug, but only if administered in large doses, and he was on a small dose for anxiety.
Mr Grey pointed out to the witness that the second page of Dr Saker's report contained the diagnosis of "Generalised Anxiety Disorder and Alcohol Use Disorder". He replied that the reference to alcohol did not mean he was still suffering from alcohol problems, but it was there so that DVA could fund the treatment. Dr Saker had written it so that he could be paid. He also disagreed that he was suffering from generalized anxiety at that time, but had been concerned about alcohol because of his mother's history. The report said that Dr Saker had arranged to see him again in 6 months and that he would benefit from CBT. But there was no need to see him again because he would not say the applicant presented no risk. His recommendation for CBT might have been because this was only six days after his marriage separation.
Thus he had been treated by Dr Robinson in 2017 and had seen Dr Saker once in January 2019. He had not consulted Dr Davies because Dr Robinson had advised him to tick "No". He had had enough of Dr Robinson and for that reason had received a referral to Dr Davies.
He had begun seeing the consultant psychologist Mr Paul Constable, on a monthly basis in January 2020 on a referral from his general practitioner, Dr Burford. Mr Constable's report was dated 4 November 2020 (part exhibit A3). He denied that he had been "hawking" for a doctor or psychologist to say he presented no risk. He had shown Mr Constable Dr Robinson's report diagnosing anxiety and alcohol issues and estimating that he presented an "elevated risk", but Mr Constable had said he presented virtually no risk because there had been no history of anything happening.
Mr Grey pointed out to the witness that in his application of 19 December 2019 [the application in issue] he had again answered "No" to question (d) about being referred or treated in the past 12 months for alcoholism or a mental or nervous disorder (exhibit R1, p 59). He replied that he had done so because it was correct. Reminded that Dr Saker on 8 January 2019 had diagnosed him with generalized anxiety disorder and alcohol use disorder, he answered that the Firearms Registry had moved the goalposts because they said he needed a report saying that there was no risk. The answer was not false because he had not seen Dr Saker for treatment, but to ask him to certify that he presented no risk.
The applicant also tendered a number of references, which are referred to further below.

Applicant's submissions

The applicant filed written submissions on 11 November 2020 (exhibit A2) which began by describing the organizational culture of the Australian Army, which he said is built on the core values of courage, initiative, respect and teamwork. Those values are instilled from the day a new recruit joins and continue until the serviceman finishes his career. There are expectations of every member in the team.
The respondent's notice of refusal dated 12 October 2020 was a response to his application of 19 December 2020, not a response to his application for internal review made on 20 August 2020. The delay in assessing his application and the subsequent failure to complete an internal review within the statutory 21-day timeframe were disappointing and delayed procedural fairness.
The notice of refusal's discussion of Dr Robinson's risk assessment ignored the responses that were favourable to the applicant's fitness to possess firearms, e.g. paragraphs 3, 4, 6, 7 and 8. The decisionmaker had failed to take a "balanced view of risk" as described by Montgomery JM in Webb v Commissioner of Police [2004] NSWADT 110. The need for decision-makers to consider all the evidence was also discussed in AML v Commissioner of Police [2013] NSWADT 5.
The decisionmaker overlooked the preponderance of positive responses by Dr Robinson to the risk assessment questions. No explanation was given for why "substantial weight" was placed on the response to question 8(i) to the exclusion of responses to all other risk assessment questions. The magnitude of the "elevated" potential to put safety at risk is not stated by Dr Robinson. He submitted that the magnitude of "elevated potential" and "low risk" fitted within the bounds expressed in Webb.
He acknowledged that in his [2018] licence application he answered the question about a referral for treatment for alcoholism, or mental or nervous disorder incorrectly, but he was advised by Dr Robinson that this was the appropriate response in his circumstances. He met with Dr Robinson to discuss his intention to apply for a firearms licence, and it was on his advice, as his treating doctor, that he followed his suggestion and responded "No" to that question.
The notice of refusal letter dated 12 October 2020 referred to matters raised in his March 2018 application. But there were errors in Dr Robinson's report of 10 July 2018 which he wanted to correct. First, Dr Robinson stated that he was admitted to Maitland Private Hospital under his care for the period 4 January to 10 January 2018. But it was not correct. He was discharged on the morning of 9 January 2018 and would have been discharged earlier were it not for the fact that Dr Robinson only attended the hospital on Tuesdays and Thursdays. Secondly, Dr Robinson's report stated that "he takes" escilatopram and diazepam, but he ceased taking diazepam and escitalopram after his discharge from Maitland Private Hospital in January 2018.
The anxiety disorder and alcohol use disorder referred to by Dr Robinson were secondary effects following spinal fusion surgery for an injury sustained during a military exercise. The organizational culture in the army places great expectations on personnel to "not let their mates down". During his recovery from spinal surgery he became aware that word was going around that he was a malingerer. That weighed very heavily on him and, he felt, contributed to his anxiety at that time.
The refusal letter of 12 October 2020 contained no new or additional information to that contained in the previous refusal letter dated 30 November 2018. He submitted that there is no reasonable cause to believe that he would not exercise continuous and responsible control over firearms. On the contrary the risk assessment report by Dr Robinson showed that "The risk that his condition may impact on his ability to exercise continuous or responsible control over firearms is low".
In addition to the preponderance of responses in Dr Robinson's report that support his ability to exercise continuous and responsible control over firearms, he submitted additional recent medical reports and character references from:

psychologist Paul Constable, report 4 November 2020;
pharmacist Alexander Goldfinch, report 6 November 2020;
Jess Kavanagh, letter 29 October 2020;
Oliver Bell, former section commander, Australian Army, letter 30 October 2020.

On the basis of all the evidence he submitted that there was no reasonable cause to believe that his ability to maintain continuous and responsible control over firearms would be impaired and there is virtually no risk to public safety if he were granted a licence.
The applicant filed further written submissions dated 14 December 2020 (exhibit A4) taking the form of responses to matters raised by the respondent's written submissions.
These submissions pointed out that Dr Brash had not retired but had died while the applicant was away travelling with his family for seven months. On his return he had sought an appointment but was then informed of his passing.
He was not admitted to Maitland Private Hospital between 4 January and 10 January for alcohol detoxification and there was no evidence of that. Dr Robinson had said the opposite: "He did not require medication for detoxification from alcohol". He had been advised to answer "No" to question B by the subject matter expert who had in that same year discharged him from Maitland Private Hospital after only six days and not needing any alcohol detoxification.
There were many incorrect dates mentioned in his emails. His four firearms and his Queensland licence card had been seized from his New South Wales address on 6 June 2018, 15 days after the telephone call from the registry, which actually occurred on 22 May 2018, not in February 2018.
When his firearms were seized, his expired but still valid Queensland licence card was also seized. The police officer had telephoned him saying his firearms, which had been in the police station since April 2018, could potentially be destroyed. On 7 May 2018 he received an email from Shanan Barnett stating that the registry had continuing authority to possess his firearms until the issue or refusal of his firearms licence as per the New South Wales Firearms Registry Fact Sheet for interstate residents moving to New South Wales.
The applicant disputed the respondent's assertion that nothing indicated that the applicant had succeeded in putting his mental health issues behind him once and for all. After discharge from Maitland Private Hospital he had presented to Dr Robinson on 22 February 2018 to discuss his New South Wales firearms application. The next time he saw him was on 6 June 2018 to present him with the suitability to hold a firearms licence questionnaire sent by the registry on 22 May 2018. He next saw Dr Robinson on 31 January 2019 on advice from the registry to ask him to change his report to say "no risk", which he declined to do, and on 20 February 2019 to ask him to write a letter explaining the intentions of his report. He would not write a letter without the registry requesting it, and the registry refused to request it.
In his first submission (exhibit A2) he had attached a psychologist report from Paul Constable, who he had been seeing since 11 January 2020 in anticipation of the registry requiring a further suitability to hold a firearms licence questionnaire. He confirmed that there is no evidence of mental health conditions.

Consideration

Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the Civil and Administrative Tribunal Act (CAT Act) (s 30) and the Firearms Act, including the Commissioner's refusal to issue a licence or permit: s 75(1)(a). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
These are not adversarial proceedings. There is accordingly no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and in s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. Nevertheless, the civil standard of proof, the balance (preponderance) of probabilities, is accepted as a useful guide for tribunal deliberations.

The public interest

In this matter the respondent does not contend that the applicant is not a fit and proper person to hold a firearms licence. Instead, the respondent submits that it is not in the public interest for a licence to be issued to the applicant, principally because of concerns about past diagnoses and treatment for psychological problems involving alcohol.
Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of a licence would be contrary to the public interest. The "public interest" allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
In an often-quoted passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, [130].
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" (at [7]).
Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66] 66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
In this case the respondent does not contend that the applicant has a history of serious breaches of the legislation or of dangerous or negligent handling of firearms in the 9 years in which he has held a New South Wales licence, or in his interstate and territorial license history. It is pointed out that for several months after he became a resident of New South Wales, he had possession of four firearms before being issued with a New South Wales licence. He appears to have been under the impression that his Queensland licence and registration authorized his possession of firearms in New South Wales after he had moved from Queensland until he could obtain a licence in this state. That was an error of law, but not one that in practical terms involved any danger to the public. The respondent's case rests on Mr Kavanagh's history of diagnoses and treatment for problems including anxiety and alcohol. It is therefore appropriate to review the various reports in chronological order.

Dr Michael Likely - 2013 - 2014

The applicant had been under treatment by Dr Likely, a Townsville psychiatrist, between 2013 and 2014, because of concerns he had over anxiety and alcohol misuse resulting from his spinal injury and fusion surgery. The treatment ceased in April 2015 when the applicant moved to Newcastle. There is no report from Dr Likely.

Dr Larry Brash - 2016 -2017

The applicant had been under the care of Dr Brash, a psychiatrist in Newcastle, presumably because he felt he needed to continue the treatment he had been receiving from Dr Likely for anxiety and alcohol misuse. Dr Brash died suddenly, however, in 2017, and after a break of several months the applicant began treatment with Dr Robinson. There is no report from Dr Brash.

Dr Geoffrey Robinson- 2017 - 2018

Dr Robinson's report of 10 July 2018 (id., 33 - 34) notes that it is in response to a letter of request from the Firearms Registry dated 22 May 2018 for a risk assessment. The applicant had first seen him on 10 July 2017 and he had received further consultation at Dr Robinson's rooms from August 2017 to June 2018. He was briefly admitted to Maitland Private Hospital under Dr Robinson's care on 4 January 2018 to 10 January 2018 [the applicant states that it was 6 January 2018]. "He did not require medication for detoxification from alcohol. The diagnoses are Anxiety Disorder and Alcohol Use Disorder".
He continued that "The disorder does not appear to affect Mr Kavanagh's fitness to possess and use firearms. He states that he never uses firearms after he has been drinking". In his opinion, the current risk that his condition may impact on his ability to exercise continuous or responsible control over firearms was low. There was no past history that his condition or impairment had affected his ability to exercise the desired control or responsibility over firearms in the past.
Dr Robinson concluded, "The applicant's condition is such that I do regard him as having an elevated potential to put public safety at risk", although he had "never previously posed such a risk". At the same time, it would appear that he did not consider the risk to be substantially elevated, as he had advised the applicant to answer "No" to the question about prior psychiatric treatment.
In January or February 2019 he declined the applicant's request for a report stating that he presented "no risk" to public safety, as one could never say that about anyone, but he did support the restoration of the applicant's licence.

Dr Stuart Saker - January 2019

The applicant saw Dr Saker, a consultant psychiatrist, on 8 January 2019 in an endeavour to obtain a certification that he presented "no risk" to public safety. Dr Saker's report of that date (part exhibit A4) states that "He has recognised conditions with DVA of Generalised Anxiety Disorder and Alcohol Use Disorder". He presented a "Low risk of harm to himself or others" and Dr Saker diagnosed in as having "Generalised Anxiety Disorder and Alcohol Use Disorder".
The applicant disputes the diagnosis of alcohol problems, saying that Dr Saker only wrote that because that was one of his DMV recognized disorders and he would not be paid if he did not mention it. There is no evidence to corroborate that claim. Dr Saker wanted to see the applicant again in six months' time, but the applicant said he did not make another appointment as Dr Saker would not attest to there being "no risk".

Mr Paul Constable - 2020

Mr Constable, a consulting psychologist, wrote a report dated 4 November 2020 (part exhibit A3) which stated that he had been treating the applicant since 11 January 2020 and affirmed that "I see no evidence of any mental health issues. In relation to the risk assessment question about possible impairment of his ability to exercise continuous and responsible control over firearms, he declared "There is virtually no risk as Mr Kavanagh does not have a condition or impairment". Further, he said, "There is no past history of a condition that would render Mr Kavanagh unable to exercise control and responsibility over firearms". Nor had he ever posed a safety risk. "Over the time I have seen Mr Kavanagh", he concluded, "he has always presented on time and was appropriate. He has presented alert and orientated with no cognitive disturbances noted. His speech [was] normal in rate, rhythm and porosity, eye contact was good, he described his mood as good". From a clinical perspective he saw no reason why the application for a licence should not be granted.
The respondent criticized the report, saying that it lacked content. It is certainly rather brief, but in part that may be explained by the fact that Mr Constable observed no signs of psychological problems, although he had seen the applicant a number of times. It does not, however, disclose what tests or questionnaires were administered, if any, or what other means of the evaluation were used. Nevertheless, in my view it deserves some weight.

Mr Alexander Goldfinch

Mr Goldfinch is a pharmacist, not a psychologist or psychiatrist, but his rather detailed letter of 5 November 2020 merits inclusion here because of his insights into the applicant's use of psychotropic medications.
After describing the development of their personal friendship, Mr Goldfinch gives a brief history of the applicant's chronic pain problems and notes that his prognosis is significantly improved and that he has been able, or is likely to be able, to "wean off prescription pain relief altogether".
The letter continues, "the other medication Mr Kavanagh would get dispensed quite regularly were psychotropic medications. In contrast to the melancholy on his constraints for leisurely physical activity within the early years of our relationship and in later years, due to the personal anguish of the separation of his now ex-wife, Mr Kavanagh always demonstrated signs of mental stability and vigour. The need to be prescribed psychotropic medication throughout the years at times seemed questionable, to which he eventually ceased the use of these medications".

The references

The first personal reference relied on was from the applicant's pharmacist, Mr Alexander Goldfinch, parts of which were referred to above. In the other parts of the letter, Mr Goldfinch writes that he has known the applicant for five years and has played a role as his community pharmacist in a few different workplaces. They first found common ground after discovering that they both formerly resided in Townsville, and quickly fostered a friendly working relationship, where he would visit Mr Goldfinch frequently, sometimes weekly, in assisting both his and his family's ailments, while exchanging anecdotes and sharing an affinity for the outdoors, shooting and camping. During that time Mr Kavanagh had always had a pleasant demeanour and presented himself well as a devoted father and husband. Despite his recent separation with his wife, they remain exceptionally good friends. The letter concluded by stating that the author is supportive of his activities as a recreational shooter and anticipates no risk in reinstating his firearms licence.
Jessica Kavanagh, the applicant's ex-wife, wrote on 29 October 2020 that she has known Craig for over 20 years. They were a couple for 18 years and married for 13. They had since separated, but she has no concerns for safety to himself or anyone else. He had always been very responsible with firearms. She and the children had been on camping trips with him that involved shooting activities. That had since ceased as he has been affected by not having that outlet. Craig was diagnosed with anxiety and alcohol misuse during his time in the defence force. She was with him during that period more than anyone else. He is not a violent person and she had never feared him in any way. He was proactive with his mental health and approached his doctor when he saw a change in himself.
She had witnessed Craig at his very worst, while heavily intoxicated by alcohol and prescription medication, and she had never seen him handle firearms under the influence. He had obtained his licence not long before joining the army and held his licence the whole time while serving. He is very proud of his firearms and is missing them being a part of his life.
Mr Oliver Bell wrote on 30 October 2020 that he has known the applicant both professionally and personally for over eight years, and understands that his firearms licence is under review. During their service together in the army, he did not believe Craig had displayed any unprofessional behaviour when handling or dealing with firearms. He had been involved with Craig on various live fire training exercises, which included close quarter drills, weapons training days and range training days. As Craig's section commander at the time of their service, he had never had to provide a formal warning or discipline in regards to weapons or any other aspect of his soldiering, and he believes Craig's military conduct record would show that.
He and Craig were also involved in assisting local farmers in the Townsville region with selective pest eradication when required, and he could confidently say that Craig's relationship with safety and firearms was no different to what was required and the defence force.

Evaluation and conclusion

The tribunal is thus left with a mixed picture. The applicant's psychiatric history began in 2013 with Dr Likely being consulted over concerns relating to anxiety and alcohol misuse caused by Mr Kavanagh's spinal fusion. The respondent's concerns began with a telephone call by the applicant to the Firearms Registry in which he made certain admissions about anxiety/depression and alcohol misuse problems. That call took place in February 2018 (according to the respondent) or May 2018 (according to the applicant). Nothing turns on the discrepancy.
The thrust of the professional reports may be summarized as follows:

Dr Robinson's report in July 2018 assesses the applicant as being a low risk to public safety and favours the issue of a licence. At the same time, he concludes that he presents an "elevated potential" to put safety at risk. But he advises the applicant to answer "No" to the question on the application form about prior mental health treatment. In January 2019 he declines to certify the applicant as presenting "no risk" to public safety, on the ground that nobody can be said to present no risk.
Dr Saker in January 2019 considers that the applicant presents a low risk to public safety but is suffering from generalized anxiety disorder and alcohol use disorder. He declines to state that the applicant presents "no risk" to public safety on the same grounds as Dr Robinson.
Mr Constable in November 2020, having treated the applicant for several months, observes no mental health issues and believes he poses virtually no risk to public safety. But he gives little evidence to support his conclusions other than his observations as a treating psychologist.
Mr Goldfinch in November 2020 states that he has been dispensing the applicant's psychotropic medications for close to 5 years and he has always demonstrated signs of mental stability and vigour. He thought the need to be prescribed psychotropic medication throughout the years at times seemed questionable.

What emerges, therefore, is history of psychiatric treatment dating back to 2013 in relation to depression, anxiety and alcohol problems, in-patient hospital treatment for those symptoms in 2018, an ambivalent assessment by Dr Robinson and an evaluation by Dr Saker in January 2019 of a low risk but with a diagnosis of generalized anxiety disorder and alcohol use disorder, which the applicant disputes.
The respondent also expressed concerns over the applicant's admitted consumption of alcohol on shooting excursions with his friends, but only after a shoot. That raised the possibility, the respondent contended, that firearms would be handled carelessly under the influence of alcohol. There is no evidence of that, however, and the concern is purely speculative. On the contrary, those who know the applicant well attest to his scrupulous care in firearms handling.
On the other hand, the applicant tendered the report by Mr Constable, which is favourable although deficient in evidence, and also supportive observations by Mr Goldfinch. Additional to that are other favourable references, including one from his army section commander and another from his ex-wife, the latter attesting to his care with firearms, and has never seen him handle firearms when under the influence of alcohol.
The applicant himself, now aged 38, appeared to be a forthright witness, although on occasion resorting to strained interpretations of the facts, such as justifying responding "No" to the mental health question in his 2019 application on the ground that his consultation with Dr Saker earlier that year was for the purposes of his application, not for psychiatric treatment. Dr Saker's report did, however, involve psychiatric evaluation, by reason of the applicant's prior history.
The applicant's most recent psychiatric appraisal, therefore, is now two years old and competes with other differing opinions and observations. Part of the problem seems to be that at some stage in the history of this matter an erroneous formulation of the applicable public safety standard relevant to the public interest became adopted. The correct standard is not that granting a licence to the applicant should involve "no risk" to public safety because, as both Dr Robinson and Dr Saker point out, and Hennessy DP in Ward agrees, it is impossible to affirm that anybody presents no risk.
The correct approach, as the tribunal explained in Webb, is "to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration" (at [32]).
In the absence of a recent, comprehensive psychiatric evaluation, with particular attention to alcohol use and factors influencing it and reaching an acceptable conclusion as regards risk, the current state of the evidence does not permit a clear assessment of risk other than to say that the applicant's history presents an appreciable risk to public safety. The applicant himself seemed to appreciate the problem, as in his final submissions in reply he twice offered to seek an assessment from an independent psychiatrist in order to resolve the matter.
On the evidence as it stands, however, I conclude that it is not at present in the public interest for the applicant to be issued with a firearms licence, and I so find. The correct and preferable decision must therefore be that 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

Amendments 24 February 2021 - Paragraph 90 "including whilst heavily intoxicated" amended to ", and has never seen him handle firearms when under the influence of alcohol." 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: 24 February 2021

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