Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254
Briginshaw v Briginshaw (1938) 60 CLR 316
Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Source
Original judgment source is linked above.
Catchwords
Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Force [2001] NSWADT 50Director-General, Transport New South Wales
v AIC (GD) [2011] NSWADT AP 65
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70
Henderson v Queensland [2014] HCA 52
Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Jameson v Commissioner of police, New South Wales Police Force [2019] NSWCATAD 25
Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 11
Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117
Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368
Legallant v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 47
Leatham v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 121,
[18]
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Judgment (14 paragraphs)
[1]
REASONS FOR DECISION
The applicant Mr Paul Andrew Keys applied to this tribunal on 31 October 2022 for review of a decision by the respondent Commissioner on 20 October 2022 refusing his application for a category AB firearms licence. The applicant had first been issued with a category AB licence on 5 October 2011, which was to expire on 24 November 2013. The licence was subsequently renewed three times, the final renewal being due to expire on 24 November 2021.
On 13 August 2021 police were informed that he had allegedly stated to a co-worker, "I'd love to bring in my rifle and shoot the c*** [the co-worker] in the head". Other co-workers were concerned by the threat as they knew he owned firearms and had allegedly displayed aggressive behaviour in the workplace. When spoken to by police the applicant denied the allegation and said his colleagues were "out to get" him after he had taken a photograph of a supervisor not wearing a COVID mask.
As a result of the threat, police attended his residential address and took possession of his firearms, ammunition and licence. His licence was suspended on 14 August 2021 (exhibit R1, p 5) and expired on 24 November 2021. He applied for a new category AB licence on 22 October 21, which was refused on public interest grounds on 18 December 2021. Following an internal review, the refusal decision was affirmed on 20 October 2022.
The applicant applied for administrative review of that decision on 31 October 2022 and the matter came on for hearing in this tribunal on 11 April 2023.
[2]
Applicable legislation
Section 11(3)(a) of the Firearms Act provides that a license 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(7) states that "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".
The issues in the present application are thus whether the applicant is a fit and proper person to possess firearms without danger to public safety or to the peace, and whether the issue of a licence to him would be contrary to the public interest.
[3]
Mr Paul Keys
In oral evidence by AVL the applicant adopted his statement dated 31 January 2023 (exhibit A1) in which he stated that he had held a firearms licence since 2011, which was renewed successfully in 2013, 2017 and 2019. He accepted that in 1997 he was convicted of offences relating to drink-driving and drug possession.
In 2011 when he applied for his licence, and on each renewal in 2013, 2017 and 2019, there was no problem in obtaining his licence even though the Commissioner had the information regarding the 1997 convictions available on his record. He has no other criminal convictions recorded against him.
During 2021 he became involved in a workplace incident where he was employed as a sheet metal worker by Allied Air Conditioning and Refrigeration (Coffs Harbour) Pty Ltd. In the course of the incident it was alleged he threatened to shoot one of his workmates in the head. He denies that allegation completely and was never charged over it.
Because of that dispute, he suffered from a stress-related condition and made a workers compensation claim. He was interviewed by an investigator named Jeffrey Brindle and provided a 9-page statement to him. That statement details the incidents that were occurring at work. He was treated for a stress-related condition and saw Lyn Howell, a psychologist in Coffs Harbour.
He is no longer employed by Allied Air Conditioning and has a new job where he is very happy and no longer suffers from that stress-related condition.
When he completed his firearms licence renewal application dated 22 October 2021, he answered "No" to the question, "Have you in the past 12 months, been referred or treated for a mental or nervous disorder or illness?". He answered "No" to that question as at the time of doing so, he believed he was not suffering from a mental or nervous disorder. His doctor had advised that he was suffering from stress due to the workplace incident and he therefore honestly answered that question to the best of his knowledge and belief and was not attempting to provide false or misleading information to the Commissioner.
He enjoys sports target shooting and hunting and it is for those genuine reasons that he is seeking to hold a licence as he has in the past.
In oral evidence in chief by AVL he referred to a hand-written letter he had written in connexion with the workers compensation claim (exhibit R3, p 35) in which he made reference to what he regarded as a false allegation by his supervisor Ross Currell that he and another worker, James Daly, had left some machines switched on overnight. In the letter he wrote, "I replied to this obnoxious tirade but turned and walked away to prevent any escalation of the event. Soon after in the heat of the moment I may have said things to Daly that I almost immediately regretted".
[4]
Respondent's evidence
The respondent relied on documentary evidence, including the s 58 documents (exhibit R1). Three persons who had completed written statements for the respondent were required by the applicant for cross-examination.
[5]
Const. Shannon McLaughlin
Constable Shannon McLaughlin of Coffs Harbour police, the officer in charge of the investigation into the alleged threats, in oral evidence adopted her statement dated 8 March 2023 in which she said, relevantly, that on 14 August 2021, she spoke with Brock Wilson, HR manager of Allied Air Conditioning and was informed of an incident that occurred on 13 August 21 at about 11:00 a.m. between the applicant and his supervisor. The applicant was denied his request to take tools belonging to the company home. After that occurred, he approached James Daly and "ranted about the supervisor". During the rant, he stated, "I'd love to bring in my rifle and shoot the c*** [Ross] in the head. I'll bring my 22 with a 10-round mag and unload on him". Mr Daly reported his concerns to Mr Wilson, who in turn contacted police.
Const. McLaughlin recall speaking with Mr Wilson, who reported recent aggressive behaviour of the applicant. Mr Wilson had knowledge that Mr Keys possessed firearms and expressed genuine concern that he might follow through with his statement. She later completed paperwork to suspend the applicant's firearms licence because of the threat he made.
In cross-examination the officer said she had spoken to Mr Wilson at the police station, initially at the front desk and later in an interview room. Initially she made entries in her notebook and then prepared a COPS database entry (event E 82682834, 14 August 2021). She would later have looked up the database to ascertain whether the applicant had a firearms licence.
She had never attended at Allied and could not recall whether she had asked to speak with Mr Daly or Mr Currell. She had not been with Senior Constable Borger when he visited the Allied premises on 1 September (id., p 15). When she had spoken to Mr Wilson at the station, he had said he regarded the threat as serious.
She had never tried to interview the applicant. No charges had been laid, and no steps were taken towards an AVO. The evidence they had obtained was insufficient to support an arrest. Mr Mainstone pointed out that police had not attended at Allied until 1 September although they considered the threat to be serious and knew the applicant was licensed, and asked why no further action was taken. The witness replied that it was not necessary as his firearms had been taken. Another car crew had spoken to him when taking possession of his firearms. He was interviewed at his home address.
[6]
Senior Constable Christopher Borger
S/C Borger adopted his statement dated 9 March 2023 (exhibit R4) attaching a copy of a letter from the applicant dealing with the circumstances in which the applicant's firearms were seized. S/C Borger wrote that on 1 September 2021, in response to a workplace incident that occurred on 13 August 2021, he attended Allied Air Conditioning at ***** , Coffs Harbour and spoke to Brock Wilson, taking down more information that is contained in E82682834.
After the firearms were seized, he recalled speaking with the applicant who wanted to reclaim his firearms. He received telephone calls from the applicant who mentioned that he was receiving treatment for workplace-related injuries. He clearly recalls explaining to the applicant that it was most likely he would require a mental health assessment and that this request would be sent to him in the near future. On 23 August 2021, the applicant wrote to the Coffs Harbour/Clarence Region commander in respect of the seizure. This was the applicant's letter dated 23 August 2021 which is attached to S/C Borger's statement.
In cross-examination the witness said that when he visited Allied on 1 September, he knew that the applicant's firearms had been seized because of the report on 14 August. He had viewed the body worn video footage of the seizure and had discussed it with other officers. No electronically recorded interview of the applicant was made. The officer in charge of the matter, Const. McLaughlin, knew of the allegations from the documents. It was a matter not to be taken lightly, especially if the applicant had a licence. It would have been usual to interview him and seek to obtain an ERISP. All the workers had been spoken to, but they would not give statements. No charges had been laid because they could not obtain statements from the witnesses. A personal AVO would only be obtained if an offence had been detected.
In re-examination the witness said he had been aware that the applicant had been suspended from work and his firearms licence had been suspended also. Consequently the immediate threat had been addressed.
[7]
Brock Wilson
Mr Wilson adopted his statement dated 9 March 2023 in which he explained that he is a human resources manager employed by Allied in Coffs Harbour and has been with the company approximately 15 years, and in his current role for about 7 years. He worked with the applicant at Allied during the latter's employment between 2019 and 2021 and also interacted with him socially on occasion.
He stated that on 13 August 2021, the applicant was employed by Allied as a sheet metal fabricator. He was second in charge of staff employed or engaged in the sheet-metal workshop of Allied. His direct manager was Ross Currell. He had a history of being difficult to manage in the workplace. He would often refuse to follow directions or refuse to do tasks because he felt they were beneath him. Mr Wilson was aware that there was some friction and interpersonal issues between the applicant and others in the workplace, particularly in relation to mask-wearing.
On 13 August 2021 he was approached by an apprentice with the company, James Daly. Mr Daly reported to him that after having a request to take tools home refused by Mr Currell, the applicant had approached Mr Daly and said, "I'd love to bring in my rifle and shoot the c*** (Mr Currell) in the head. I'll bring my .22 with a 10 round mag and unload on him".
Mr Daly was junior to the applicant in the workplace and had no reason as far as Mr Wilson was aware to lie about the interaction. As Mr Daly was an apprentice and subordinate to the applicant, he was not in a position to bully the applicant. He seemed genuinely concerned about what the applicant had said to him. Mr Wilson then separately telephoned to other staff of Allied to ascertain whether they were also aware of the alleged threat. He did not explain the context of his call and spoke to each staff member separately. They each confirmed to him that they had heard the threat and generally described the applicant as having lost control.
Given the seriousness of the threat and the fact that he was aware that the applicant at the time possessed firearms, he reported the matter to the police. As a licensed firearms holder himself, he was aware that it is a very serious matter to threaten to use a firearm against another person. On 14 August 2021 he spoke with police when they attended Allied and provided them with company records relevant to the alleged threat.
[8]
Applicant's submissions
The applicant relied on written submissions filed on 6 April 2023 in which Mr Mainstone submitted that the respondent had overstated the risk posed by the applicant. The assessment of risk in the present case incorporated some discrete considerations in relation to his actions in the workplace and regarding his reapplication for his licence. In addition the respondent contends that the applicant not only failed to answer a question in his application correctly, but also that he knew it was false or misleading. The respondent contended this was a serious breach of the Act.
In Legallant v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 47 and in Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25, the tribunal had found in favour of an applicant who had committed a serious contravention of the legislation. Further, the contention that the applicant is a dishonest person is not open on the evidence. To so find as a discrete fact would require cogent or strict proof in accordance with Briginshaw v Briginshaw [1938] HCA 34.
In Legallant and in Webb the tribunal had stressed that the assessment of risk had to be approached in a nuanced way and that minimal, fanciful or theoretical risk could be excluded from consideration. The applicant submits that there is no real risk that the applicant would ever use a firearm in the manner indicated, but also agrees that he has regrets over the incident, despite denying that he used the words attributed to him.
The following matters give credence to his assertion:
He was given a direct and powerful lesson from being stood down from his job and having his firearms licence application refused.
There was no evidence of any further incidents as the applicant is no longer employed at that workplace.
The applicant is in fact regretful and remorseful for the "workplace incident", as is evident from his handwritten note delivered to his then workplace on 16 August 2021.
The applicant would now be aware of the very serious custodial consequences that would follow in the event of any future incidents or breaches, thus creating a significant deterrent against further contraventions.
The contraventions in Jameson and Legallant were more serious and the moral culpability higher than in the present case, given that in the present matter the applicant was not charged with any offence, but is alleged to have knowingly provided a false answer to a question in his application.
[9]
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 CAT Act (s 30) and the Firearms Act, including the Commissioner's refusal of 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.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. 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 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]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
[10]
Fit and proper person
The first ground on which the respondent's case was based was that the applicant is not a fit and proper person to hold a licence. Section 11(3)(a) provides 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".
The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
[11]
Making of threats
The Firearms Registry received documents recording that on 13 August 2021, the applicant had threatened to shoot another employee at his workplace, Allied Air Conditioning, with one of his firearms, which he was licensed to possess. He had allegedly said "I'd love to bring in my rifle and shoot the c*** in the head. I'll bring my 22 with a 10-round mag and unload on him". After speaking with other employees who corroborated the wording of the alleged threat, Mr Brock Wilson, the company's HR manager, reported the threat to police on 14 August 2021.
In his statement dated 9 March 2023 (exhibit R3), Mr Wilson said that the applicant had a history of being difficult to manage in the workplace. He would often refuse to follow directions or refuse to do tasks because he felt they were beneath him. There was some friction between him and others in the workplace, particularly in relation to mask-wearing.
On 13 August 2021, he was approached by an apprentice, James Daley, who reported to him that after having a request to take tools home refused by his immediate supervisor Ross Currell (or following a reprimand about leaving machines switched on, or both), the applicant had approached Mr Daley and said "I'd love to bring in my rifle and shoot the c*** [Mr Currell] in the head. I'll bring my 22 with a 10-round mag and unload on him".
Mr Daley was junior to the applicant in the workplace and had no reason, as far as Mr Wilson was aware, to lie about the interaction. He seemed genuinely concerned about what had been said to him. Mr Wilson then separately telephoned other staff to ascertain whether they were also aware of the alleged threat, without explaining the context of his call, and ensuring that he spoke to each staff member separately. They both confirmed to him that they had heard the threat and generally described the applicant as having lost control.
Given the seriousness of the threat and the fact that he knew the applicant possessed firearms, he reported the matter to the police. The applicant was stood down from his employment pending investigation on 15 August 2021. After he was stood down, he made complaints about bullying in the workplace and initiated a workers compensation claim.
In cross-examination Mr Wilson said that after speaking with Messrs Daley, Carroll and Duckett he messaged the applicant and informed him that he had been stood down without pay. The investigation by Mr Jeffrey Brindle of Employers Mutual Ltd for the purposes of the workers compensation claim disclosed that this had not been a one-off occasion. There had been previous threats (not necessarily involving firearms), but staff had brushed them off as workplace tension.
[12]
Failure to disclose in licence application
The applicant's general practitioner, Dr Andrew Croaker, on 20 August 2021 referred him to a psychologist at the Australian Psychology and Wellness Centre after the applicant "developed adjustment disorder with depression/anxiety as a result of workplace bullying" (exhibit R1, p 91). On 30 August 2021, he attended his first session, of eight, with a psychologist, Lyn Howell, who administered a Depression Anxiety and Stress 21 test (DASS - 21), a self-report scale designed to measure the negative emotional states of depression, anxiety and stress. The applicant's responses indicated mild depression, no anxiety and mild stress. Ms Howell provided supportive care (id., 85).
Ms Howell reported to Dr Croaker on 15 October 2021 that he had attended five of the eight planned sessions funded by workers compensation with her, and reported that the applicant was managing well and was without any stress symptoms.
On 22 October 2021, the applicant submitted the present firearms licence application (id., pp 36 - 40). He answered "No" to the question "Have you, in the last 12 months, been referred or treated for a mental or nervous disorder or illness?" (id., 38). The applicant had, however, attended five sessions of treatment administered by Ms Howell for his mental health condition, pursuant to his very recent workers compensation claim.
The applicant claimed that as at 21 October 2021, he did not know that his answer was incorrect. The respondent disputes that assertion on the following grounds:
On or around 16 August 2021, he had submitted a workers compensation claim for mental injuries.
On 20 August 2021, he was referred by his general practitioner to a psychologist (id., 91). He must have appreciated that the referral was for a mental disorder or illness, rather than a physical one.
In his workers compensation statement on 8 September 2021, he stated that he had consulted his GP because of symptoms of stress-related condition and had been referred to a psychologist for eight sessions for treatment of a "psychological condition" (id., 91, 155 - 156).
By 15 October 2021 he had completed 5 sessions with a psychologist, with three more planned, which again he must have been aware were for the purpose of treatment for a mental disorder or illness, and
[13]
The public interest
The "public interest" factor 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.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
[14]
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: 20 April 2023
Parties
Applicant/Plaintiff:
Keys
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
He said he recalled writing the letter, but said what he had "regretted" was an argument about the wearing of COVID masks. Earlier in the day he had said he was planning to collect a new rifle, but would not say there was any threat involved. He was concerned about the wearing of COVID masks because his wife had undergone some surgery that led to her immune function being compromised. He didn't want to risk contracting COVID and passing it on to her. There was no way he would use a firearm against anyone.
In cross-examination Ms Sims drew his attention to the personal history section of his 2011 application where he had answered "No" to question (d), dealing with whether he had ever attempted suicide or self-harm or whether in the last 12 months he had been referred or treated for a mental or nervous disorder or illness. He had answered "No" to that question. He did not think that if he had answered "Yes" that the Firearms Registry might have needed more information, but agreed that if he had, it might have affected his licence. He understood that the Firearms Registry needed full information
He acknowledged that his most recent application was in October 2021, just after his licence had been suspended, and said he had applied then in order to keep the licence going. He agreed that he had answered that question "No" and said that in August 2021 he had been stood down from work and had initiated a workers compensation claim, which involved seeing Dr Croaker, general practitioner. He agreed that Dr Croaker had on 20 August 2021 referred him to a psychologist, Lyn Howell of Australian Psychology and Wellness Centre for "adjustment disorder with depression/anxiety" (exhibit R1, p 91), with whom he had then undergone five sessions.
Asked whether Ms Howell had been treating him for those conditions, he replied that he wanted to clear up the allegations that had been made about him, as he thought there was nothing wrong with him. As he had launched a workers compensation for mental injury in August 21, was he seeing her to prove the existence of an injury, Ms Sims asked? He replied that he had been seeing her just to tell her what happened.
He agreed that in his statement for his workers compensation claim he had written that "I first consulted my doctor (Dr CROAKER) on 16 August about my stress-related condition and he arranged various test [sic] for me, which have since come back clear, indicating that my condition is stress-related. I was then referred to psychologist, Lyn HOWELL of Coffs Harbour. I have had two sessions with her and have another 6 to go in my present referral. I have not been prescribed medication".
He disputed, however, that in October 2021 he had therefore recently been treated for stress, depression and anxiety, but acknowledged that he had filled out a questionnaire indicating depression and anxiety (exhibit R1, p 156). He denied, however, that his statement in his October 2021 application was not correct, as he felt alright. He agreed that it was within 12 months of the application, explaining that he had made a mistake. When it was pointed out to him that he had been in treatment only weeks before, he replied "I don't know what to say - I just went tick, tick, tick" (on the questionnaire). He had thought that there was a difference between psychiatrists and psychologists, and he felt okay. He agreed that he had ticked the wrong box, but said it was not deliberate, just careless.
The applicant acknowledged that he enjoys shooting and attends the club multiple times a month. He also talked about guns at work, as they were his hobby. At Allied Air Conditioning, he had previously been a leading hand for a while. He had left Allied for a period, attracted by higher wages and other benefits, but returned after he had started there as things did not work out. He did not get on with Ross Currell because of the facemasks issue, and it was not a good relationship.
There had been incidents at work. He had spoken to James Daly about his not wearing a mask at work, and explained his wife's medical condition. "I was annoyed and pretty hard on him at the time, but later apologized. I think he was upset. I also mentioned to James that I was picking up a new .22 rifle, but did not say anything about bringing it to work or shooting anyone. That happened on the Friday before he got stood down from work (exhibit A1, p 8, exhibit R1, p 166). Asked whether he had said to Daly that if his wife contracted COVID as a result of Daly's not wearing a mask, "I'll kill you", he admitted that "it might be close to that" as he was upset. He did not think that incident had happened the week before the 13 August threat, and thought it was at about the same time.
He had lost his temper with Ross Currell on 13 August, but did not make any threats. He said later that he was going to collect the new rifle. In his letter for the purposes of workers compensation he had indicated that the incidents with Ross Currell and James Daly were connected with "the seizure [of his firearms] last Saturday evening" (exhibit R3, p 34). He regretted what he had said to Mr Daly and as regards Mr Currell he regretted saying that he was going to collect the rifle. He said Mr Currell had accused him about leaving the machines switched on, but everything had been turned off. He denied that he had said he would unload a clip of cartridges into Mr Currell's head. Mr Duckett had been there also. When it was pointed out to him that they had both [Daly and Duckett] said he had made the threat, he replied that he did not know why Mr Duckett would. He had only taken photographs and sent them to Brock [Wilson]. After that he had been suspended from work with no pay pending the investigation.
In re-examination he was asked about the intake form he had completed for his psychological examination, specifically the questionnaire (exhibit R1, pp 155 - 156), which asked whether the patient had experienced particular states never, or occasionally, or frequently, and provided a list of numbers to use for scaling when completing the form. He said he did not know what the numbers meant, and could not say that he had noticed them. He was then asked how he could answer the questions in that case, and replied that when he thought about it, he would have done so.
When completing the licence application form he had not known what mental illness was, and had no intent to deceive. He was then asked why he had undergone treatment, and replied that he did not know, he had not wanted to do it, but had to do it for workers compensation purposes.
He had not used any derogatory terms about Ross Currell when talking to James Daly after his confrontation with Mr Currell. He was more annoyed with being accused wrongly. He had been in a new position with a different employer since 2022 and was very happy there, and there were no issues.
The applicant was stood down from his employment pending investigation on 15 August 2021. After he was stood down, he made complaints about bullying in the workplace and initiated a workers compensation claim, which was handled by Employers Mutual Ltd. On 16 August 2021 the applicant's wife delivered a handwritten letter from the applicant to Allied.
In cross-examination Mr Wilson said that he had recorded the details of the alleged threat as a note in his in Outlook the next morning. He had spoken to two other staff separately immediately after the report, and did not quote what Mr Daly had said to him.
He had been aware of issues between the applicant and Ross Currell and had spoken to a number of staff, including Messrs Daly, Currell and Duckett. After that he messaged the applicant about the threat and told him that he was stood down without pay. He had spoken to Mr Currell on 13 September. Mr Jeffrey Brindle had spoken to the staff members in connexion with the workers compensation claim and Mr Wilson had obtained copies of their statements. He had not interviewed the applicant, but had left that to Mr Brindle. There had been other incidents of threats, extending over a couple of months leading up to Mr Wilson's calling the police which were noted in Mr Brindle's report. It was not a one-off occasion. After 13 August he had left it to Mr Brindle to interview the witnesses. There had been previous instances of threats, but the staff had brushed it off as workplace tension.
In re-examination Mr Wilson said that both Messrs Daly and Duckett had said on 13 August that there had been prior threats. Mr Daly had mentioned that about a week before 13 August, the applicant had made a threat to him about not wearing his mask because of concerns about his wife's immune condition, and had said "[I]f I get it and she gets it and dies, I'll kill you too". He had been concerned about it and made a note in his mobile phone, and then decided to make notes about any further threats.
Even if the tribunal was satisfied on balance that the words alleged to have been said were said, there was no evidence to suggest that the applicant attempted to carry out those threats or ever intended to do so. The words would have been made out of frustration caused by his workplace situation and were never going to be acted upon.
The applicant has an unblemished history with firearms and firearm storage, and is remorseful for the "workplace incident". Another factor is his evidence in regard to his understanding as to how he answered a question on his application. It was difficult to understand what benefit the applicant could have derived from being intentionally dishonest with the Firearms Registry in relaying the circumstances of the treatment he received from healthcare professionals
It was reasonably possible that he had made an error in completing the application if he became confused. He believed he was suffering from stress due to the workplace incident and it was for that stress that he received treatment. It was submitted that the tribunal would be satisfied that this was his belief at the time of reapplying for his licence.
The applicant is remorseful for his actions at his former workplace and has made it clear that he has learned a valuable lesson from the experience, including the tribunal process. He is in a far better position now than he was in 2021 to judge that any such conduct as alleged is entirely unacceptable. There was significant disincentive by way of further serious punishment for the applicant to contravene the firearms legislation. He has demonstrated that he has a strong capacity and desire to comply with laws that are designed to preserve public safety, such as firearms legislation. On the state of the evidence, the tribunal is not in a position to make a positive finding is that the applicant was intentionally untruthful.
The applicant is a person who is very well regarded and has the support of his current employer for retention of his firearms licence.
At the hearing the applicant relied on the written submissions and added that in relation to the alleged threat, which the applicant denied, he had given the context that there was an issue between himself and Mr Currell. There are various versions of the language used and it was not clear what words had actually been used. The police response was notable in that the officer in charge at no time interviewed the applicant or the witnesses, though the allegation was serious. There had been no charge or an AVO application. Even if the words had been said, were the words intending a course of action, or uttered out of frustration in the workplace? One had to look at the context.
As regards the answer in the application form, it was part of the workers compensation procedure that he was referred for counselling. The questions from the intake form on p 95 of exhibit R2 mostly did not apply to him. He had told the psychologist that he had no history of depression or anxiety (exhibit R1, p 96). He had been under the impression that he was being treated for stress, not for a psychological disorder. He thought he was not suffering from a mental illness. Further, the wording of the question was confusing.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22].
Mr Currell in his statement dated 13 September 2021 for the Employers Mutual workers compensation investigation (part exhibit R3) wrote that when he had come to the workshop on 13 August 2021 he received a call from an installer, Mr Kane Eastman, who said he had been told that the applicant had been making threats against him, that he was going to pump a 10-shop magazine into his head.
Later that day James Daley approached him and showed him some notes on his mobile telephone that he had taken relating to what the applicant had said to him. "It was along the lines of 'he bought a new rifle, he was going to sight it in over the weekend and bring it in on Monday and put a ten-shot magazine into the c***'s head'…. The threat really put the wind up me because I don't know Paul that well and I hadn't been threatened before. It was a new and difficult situation for me…. I still worry about the situation. I don't want to work with Paul again or even run into him. I am concerned that he will carry a grudge and possibly carry out his threat either directly or indirectly".
James Daley's statement dated 13 September 2021 (part exhibit R3) stated that on about 6 August 2021, the applicant made a threat to him about not wearing his mask. He had said "Put your mask on, my wife has just had surgery and has no immune system, so if I get it from you and she gets it and dies, I'll kill you too". He had shrugged it off at the time, but when he thought about it, he was concerned and made a note on his mobile phone. He then decided to make notes about any further threats the applicant might make. That led to him making notes about the incident on 13 August and eventually reporting it to Ross [Currell].
Subsequently (and the statement is not clear about the date) he was in the workshop when he heard Ross Currell telling the applicant that he could not take equipment home any more without asking Brock [Wilson]. When Ross left the workshop a little later, the applicant had come up to him and said "I'm sick of being treated like a f***wit. I'd like to bring in my rifle and shoot him in the head. I'd love to bring in my 22 with a 10-round mag and unload on him". Josh [Duckett] was in the workshop at the time and apparently heard what was said. After that incident, Mr Daly spoke to Ross and told him what the applicant had said. Some time later, he spoke to Brock Wilson and told him as well. The applicant had not been back at work since that happened.
Josh Duckett in his statement dated 13 September 2021 (part exhibit R3) noted that he was aware that the applicant had made an allegation of being bullied by Ross Currell, but that was not what he had observed in the workshop. There had been incidents, but not bullying. When workers were required to wear masks there was a period of adjusting to the requirements (as it made their safety goggles fog up). The applicant complained about the requirement and was becoming aggressive with the other workers when raising it.
He continued: "An incident happened just before Paul was suspended from work several weeks ago. We were in the workshop and Paul was telling James how much he hates Ross. I heard Paul say, 'I'd like to bring my new gun in and shoot Ross in the head' (or words like that). That is pretty much all I heard". He was unsure about the comment and whether the applicant really meant it because he did not know him well and could not be sure whether to take his comments seriously.
He also recalled the applicant making a previous comment to him about wanting to shoot Ross. That was about two years ago, so he could not recall the actual words, but it was like what he heard him say recently (on 13 August). He did not report it at the time.
The applicant in his statement dated 31 January 2023 (part exhibit A1) wrote, "I deny this allegation completely and was never charged over this allegation." He gave no other details about the incident. The applicant made a further statement, for the purposes of the workers compensation claim, on 8 September 2021 (ibid.), In which he stated that on 13 August 2021 Ross Currell had approached him and accused him of leaving machines turned on from the previous shift. He denied the allegation but Ross continued with his accusation in a manner that the applicant considered rude. He walked away. He later spoke to James Daley and asked if Ross had spoken to him about the machines, and he said that he had. He said to James that he thought Ross was a bully. The statement gave no further details about the incident.
When asked in cross-examination about his alleged threat to kill James Daly for not wearing a mask if his wife died of COVID as a result, he replied "It might be close to that", because he was upset. He had thought it was about the same time as the incident on 13 August, not the week before. He had lost his temper with Currell on 13 August, but made no threats. Later he said he was going to collect his new rifle. In his hand-written letter delivered by his wife to Allied on 16 August he wrote that "Soon after in the heat of the moment I may have said things to Daley that I almost immediately regretted" (id. 35). He said that what he regretted was saying that he was intending to collect his new rifle.
In his written submissions the applicant said little about the alleged threat on 13 August, merely contending that there was no real risk that the applicant would use a firearm to shoot a work colleague as alleged, and denied that he had used the words attributed to him. He had expressed regret about the incident, but when asked what he regretted, he said, as has been noted, that he regretted telling James Daly that he intended to pick up his new rifle, an improbable explanation. He categorically denied making the threat on 13 August. He said he is now working for another employer and is happy there as there are no frictions, but did not identify the new employer.
In oral submissions Mr Mainstone pointed out that there were various versions of what had been said, which left open what words had actually been used. There had been no charge arising out of the incident, or any AVO application. Even if they had been said, the words did not indicate an intended course of action, but frustration arising from a workplace issue. People when exasperated will sometimes speak about killing someone, but it is not a statement of intent, only an expression of frustration. Neither Mr Currell, Mr Daly nor Mr Duckett was required for cross-examination.
There are thus two witnesses who directly heard the applicant threaten to shoot Mr Currell on 13 August 2021, Mr Daly and Mr Duckett. The words they attribute to the applicant vary slightly, but in substance their recollections are identical. Mr Daly was concerned enough about the threat to report it to the office manager, Leanne Howard, who took it up with Mr Wilson, who in turn spoke separately to all the staff concerned and then reported it to police. There are also contemporaneous indirect reports by other persons about the episode.
If it had been an isolated incident, it might have been possible to discount it as a spontaneous outburst on the spur of the moment, but it was not isolated. The applicant had made a threat to kill Mr Daly about a week before over the issue of mask-wearing. The applicant in cross-examination effectively admitted making that threat. Mr Daly thought the threat serious enough to make a note of it on his mobile telephone and thereafter to make notes of any further threats. That led to his making notes about the 13 August incident and eventually reporting it to Ross Currell.
Again, Josh Duckett in his statement of 13 September 2021 recalled the applicant making a previous comment to him about wanting to shoot Ross Currell. It was about two years previously, so he could not recall the exact words used, but it was like what he heard him say on 13 August.
It is significant that neither Mr Daly nor Mr Duckett, who were the direct and immediate witnesses to the incident, was required for cross-examination. That adds considerable credence to their evidence. The applicant submitted that as the police officer in charge of the matter, Const McLaughlin, did not interview the applicant or James Daly or Josh Duckett, police did not attend at Allied until 1 September and no charges were laid, nor any AVO sought, the matter was not regarded as a serious threat.
But as the applicant's firearms had been seized on 14 August, any immediate threat to public safety had been neutralized. Further, the threat when made had caused serious concern to Messrs Currell, Daly and Wilson at least and had led police to suspend the applicant's firearms licence and seize his firearms On the preponderance of the evidence, I find that the applicant did make the threat as alleged on 13 August 2021 and that it was not an isolated incident.
disclosure would or might have harmed the applicant's interests, by making it more likely that his application would be refused.
As the High Court pointed out in Henderson v Queensland [2014] HCA 52, [28], the fact that a witness is disbelieved does not prove the opposite of what had been alleged, but in some circumstances an inference may be drawn from the fact that a witness has told a false story that the truth would harm his or her interests. In his application of 22 October, the respondent contended, the applicant displayed a lack of candour that could not be attributable to an inadvertent mistake or momentary lapse of judgment, given that mental health treatment administered by a psychologist was so recent to the date of the application.
In his statement of 31 January 2023 (exhibit A1) the applicant stated that he had answered "No" to the question because he believed he was not suffering from a mental or nervous disorder or illness. His doctor had advised that he was suffering from stress caused by the workplace incident. He had not been attempting to provide false or misleading information.
In his written submissions he contended that it was difficult to understand what benefit he could have derived from being intentionally dishonest with the Firearms Registry in that way. He believed he was suffering from stress caused by the workplace incident and it was for this stress that he received treatment. In cross-examination he said that he had attended the sessions with the psychologist because he wanted to clear up the allegations made about him and thought nothing was wrong with him. He just wanted to tell her what happened.
He agreed that he had been seeing a psychologist for treatment in September 2021 but denied that in October 2021 he had recently been treated for stress, depression and anxiety. His answers to the DASS-12 questionnaire had indicated depression and anxiety, but he did not believe his answer in October 2021 was incorrect because he "felt alright" even though it was within the 12 - month period, saying he had "made a mistake".
When it was pointed out to him that the treatment had been only weeks before, he replied "I don't know what to say - I just went tick, tick, tick". He had ticked the wrong box but it had been done carelessly, not deliberately. But the question is perfectly clear and he had completed the same form several times before.
In his consent form for the psychologist (exhibit R1, p 154), the applicant had declared that he understood that "Psychologists may breach confidence if they believe that their clients are at serious risk of harming themselves, harming someone else or if they believe a child's welfare to be at risk". Further, there were no ticks on the DASS-12 questionnaire form. It contains 21 questions which have to be answered by circling a number from 0 to 3. He circled 14 of the "0" squares and 7 of the "1" squares. A table at the top of the form showed that 0 meant "Did not apply to me" and 1 meant "Applied to me to some degree, or some of the time". To complete the form and make the selection he did, he had to have given the matter some thought and must have been aware that it related to mental health issues. His clai that he made a "mistake" is implausible.
The applicant's position on this point thus cannot be sustained. The question on the application form is framed in deliberately broad terms, saying "referred or treated". His referral letter said he had developed "adjustment disorder with depression/anxiety" and his own hand-written letter (exhibit R3, p 34) states that he was suffering from anxiety. His own written submissions refer to "the treatment he received from healthcare professionals". As he knew he was being referred to a psychologist, he must have realized that it was for a mental condition, not a physical ailment. At one point he appeared to be resiling from his position, answering "I don't know what to say".
He had a motive for supplying incorrect information, as answering "Yes" might have delayed or blocked his application, and he was a keen shooter. Mr Mainstone submitted that a finding of intentionally supplying incorrect information was a serious matter and needed to be established in accordance with Briginshaw principles. But Briginshaw v Briginshaw (1938) 60 CLR 316 does not apply in these proceedings, the proper standard being the balance (preponderance) of probabilities. The preponderance of probabilities in this case leads to the conclusion that the applicant knowingly provided a false answer to the question about mental health, and I so find.
Under s 11(3)(a) of the Act, a licence must not be issued unless the Commissioner (or on review this tribunal) "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". The section thus requires a positive finding that the applicant is a fit and proper person for the purposes of the licensing scheme.
The applicant is a married man aged 55 who in 1997 was fined for a mid-range PCA, possession of a prohibited drug, being an unlicensed driver and driving an unregistered vehicle, but has had no violations since then. He has had no history of firearms contraventions or adverse reports. A recent history of violence or of threatening violence, however, especially when involving firearms, is a cause for caution in firearms licensing cases.
Mr Mainstone submitted that in Legallant and Jameson the tribunal had decided in favour of applicants who had committed serious contraventions of the Firearms Act. But those cases did not involve threats of violence, with or without firearms. In addition, the applicant knowingly provided false information in the licence application that is the subject of these proceedings. That is prima facie an offence under s 70. The tribunal has pointed out that the operation of the legislative scheme depends on applicants providing true information: Leatham v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 121, [18].
As the evidence shows that the applicant made at least one recent threat to use a firearm to kill another person, in circumstances where the threat could have been (and in fact was) regarded as meant seriously and, further, that he knowingly provided false information in the application that is the subject of these proceedings, it is not possible to make a positive finding in the applicant's favour. I therefore find that the applicant is not at present a fit and proper person to hold a firearms licence.
The tribunal may take into account matters indicating conduct not in the public interest, whether or not that conduct rises to the level of criminality, including when the conduct has not led to a conviction (Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 11, [62] - [64]; Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70). While the threat or threats made by the respondent did not result in charges, they raise the risk of a threat to public safety and potential risk to the public.
Although the applicant has a history of maintaining a firearms licence without coming under adverse notice, that should be weighed against the still recent threat of assault by use of a firearm, and the applicant's lack of candour with the Firearms Registry concerning his medical treatment received with respect to his mental disorder, which occurred almost contemporaneously with his reapplication and is thus also still recent. As was said in Leatham, the licensing system depends on applicants providing correct information. In light of all the evidence, including that relating to fitness and propriety set out above, I find that it would not at present be in the public interest for the applicant to hold a firearms licence.