Australia Leisure and Hospitality Group Pty Ltd v Commissioner of Police [2020] WACA157
Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240
Briginshaw v Briginshaw (1938) 60 CLR 316
Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Source
Original judgment source is linked above.
Catchwords
Australia Leisure and Hospitality Group Pty Ltd v Commissioner of Police [2020] WACA157Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240Briginshaw 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 Service [2001] NSWADT 50Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206McDonald v Director-General, Social Security [1984] FCA 57, (1984) 1 FCR 354Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97Moujalli v Roads and Maritime Services [2017] NSWCATAD 14`1Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10Sterjovski v Director-General, Department of Transport [2002] NSWADT 10Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Judgment (13 paragraphs)
[1]
Reasons for decision
The applicant Mr Christopher Kogias applied to this tribunal on 4 March 2020 for review of a decision by the respondent on 28 August 2019 refusing to issue the applicant with a category AB firearms licence on public interest grounds. The respondent took the view that it was not possible to attest that issuing the licence would not entail "virtually no risk" to public safety.
The applicant had held a shooter's licence under the previous legislation since 1988 and had been issued with a "one shooter" licence on 23 May 1992. On 21 December 1993, he was voluntarily admitted as an inpatient at St George Hospital Psychiatric Unit. Information received by the respondent from psychiatric staff at the hospital stated that the applicant was suffering from a mental illness characterized by delusional jealousy and consequently presented a serious risk of physically harming himself and others. It was recommended that his firearms licence be suspended. The licence was suspended on 29 December 1993 and revoked on 31 January 1994.
The applicant appealed against the revocation of his licence, but on 29 April 1994, a Local Court dismissed his appeal.
Subsequently, on 15 January 2002, the applicant lodged an application for a category AB firearms licence for the reason of recreational hunting. On the form he explained that his previous licence had been revoked as a result of his "ex-wife's revenge" because he had "left her and divorced her". The licence application was refused on 11 April 2002, and on 8 May 2002 he requested an internal review of that decision.
On 28 May, the respondent requested him to provide a report from a registered psychiatrist in relation to correspondence previously received from St George Hospital. An extension of time was granted to enable him to obtain such a report, and on 25 June 2000 to the respondent received a letter from Dr Makram Girgis, a clinical psychiatrist, stating that he had assessed the applicant's mental status on two occasions and found him to be mentally fit and stable with respect to his application for a firearms licence.
Nevertheless, the internal review officer affirmed the refusal of the licence, on 12 July 2002. The applicant appealed against that refusal to the Administrative Decisions Tribunal (ADT), this tribunal's predecessor. In the course of the ADT hearing, medical records indicated that the applicant had been diagnosed in 1973 with paranoid schizophrenia, at which time he had attempted to shoot himself, and that a further incident of a similar nature to that experienced in 1993 had occurred in 1996, in relation to which he had been described as experiencing delusional jealousy and depression. The ADT affirmed the refusal of the licence on 28 October 2002.
Some 16 years later, on 6 April 2018, the applicant completed a form P650, which is a declaration enabling an unlicensed person to shoot on an approved range and undertake a firearms safety training course, for the purpose of preparing to submit a new licence application. Part B(a) of the form's personal history section asked whether, in New South Wales or elsewhere, the applicant had been refused or prohibited from holding a firearms licence or permit, or had a firearms licence or permit suspended, cancelled or revoked. He ticked the "Yes" box and wrote "in 1993, pursuant to AVO".
Part B(d) asked whether he was suffering from any mental illness or disorder that might prevent him from using firearms safety. He ticked "No". In light of information previously received concerning his mental health, on 26 June 2018 the respondent asked him to provide information from a treating doctor, such as his GP, a psychologist or psychiatrist, certifying that he was entitled to answer "No" to that question.
The applicant wrote to the Firearms Registry on 21 November 2018 enclosing a letter from a psychologist, Mr Allen G Anderson, stating that in his opinion the applicant did not have suicidal ideation (which, the letter said, was not to say that an earlier time that was the case) and that he presented as a perfectly "normal man" with no particular psychological or psychiatric personality defects.
On 17 April 2019, Mr Kogias applied for a category AB firearms licence for the reasons of sport and target shooting and recreational hunting. The personal history section of the form, question H(a), asked "Have you in NSW or elsewhere, been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?" He ticked "Yes", but crossed that out and marked "No". The application was refused on 28 August 2019.
In a letter dated 19 September 2019 requesting an internal review of the decision, the applicant stated among other things that the diagnosis by the psychiatric unit at St George Hospital in 1993 was wrong and that he did not have delusional jealousy, but admitted suffering from depression and anxiety at that time as a result of multiple stressors in his personal and work life. He also said that his earlier diagnosis of schizophrenia was wrong and he had never suffered from that condition, and further that he had never attempted to shoot himself, though he had thought about doing so. The letter also pointed out that he had not disclosed his past mental health issues to any current treating practitioners because he considered them to be irrelevant, given their age.
Before receiving the decision of the internal review, the applicant applied to this tribunal for review of the decision to refuse him an AB firearms licence on 4 March 2020. The internal review affirmed the decision on 18 May 2020 (exhibit R2).
[2]
Applicable legislation
Section 11(7) of the Firearms Act provides that the Commissioner "may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest".
As was pointed out above, one of the matters in controversy in this application relates to information provided by the applicant in a form P650, in connexion with the exemption for unlicensed persons shooting on approved ranges and for persons undertaking firearms safety training courses. In that regard, cl 129 provides in pertinent part that:
29 Requirements relating to exemption for unlicensed persons shooting on approved ranges and for persons undertaking firearms safety training courses
(1) The purpose of this clause is to prescribe requirements relating to the exemption under section 6B of the Act of persons from the requirement to be authorised by a licence or permit to possess or use a firearm.
(2) It is a condition of the approval under Part 8 of a shooting range that a club or range official must ensure that each person who, in accordance with section 6B (1) (a) of the Act, possesses or uses a firearm at the shooting range but who is not authorised by a licence or permit to do so completes and signs a form containing the following questions before the person uses any firearm at the shooting range -
(a) Have you, in New South Wales or elsewhere -
(i) been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?
(ii) been the subject of a firearms prohibition order?
(iii) within the last 10 years, been convicted of an offence involving firearms, weapons, prohibited drugs, robbery, violence or terrorism?
(iv) within the last 10 years, been convicted of an offence of a sexual nature?
(v) within the last 10 years, been the subject of a family law or domestic violence order or an apprehended violence order (other than an order that was revoked)?
(b) Have you ever attempted suicide or self harm?
(c) Have you in the past 12 months been treated or referred for treatment for alcoholism, drug dependence, or a mental illness within the meaning of the Mental Health Act 2007 or as a mentally disordered person within the meaning of that Act?
(d) Are you currently, in New South Wales or elsewhere -
(i) subject to a good behaviour bond?
(ii) subject to an interim apprehended violence order?
(iii) suffering from any mental illness or other disorder that may prevent you from using a firearm safely?
(3) It is a condition of the approval under clause 144 (4) of a person to be an instructor for a firearms safety training course that the person must ensure that each person who, in accordance with section 6B (1) (b) of the Act, possesses or uses a firearm while participating in the course but who is not authorised by a licence or permit to do so, completes and signs a form containing the questions set out in subclause (2) before the person uses any firearm as part of the course.
(4) It is a condition of any such approval referred to in subclause (2) or (3) that the club or range official, or the instructor, as the case requires, must -
(a) prevent a person from possessing or using a firearm at the shooting range, or as part of the course, if the person has answered "Yes" to any of the questions set out in subclause (2), and
(b) record the name, address and date of birth of each person who possesses or uses a firearm at the shooting range, or as part of the course, in accordance with section 6B of the Act, and
(c) make available for inspection, by a police officer or officer of the Firearms Registry, any record made under paragraph (b) and any completed and signed forms under subclause (2) or (3).
(5) Without limiting the operation of subclause (4) (a), if the person concerned has answered "Yes" to any of the questions set out in subclause (2), the club or range official, or the instructor, as the case requires, must prevent the person from possessing or using a firearm at the shooting range or as part of the course.
Maximum penalty - 50 penalty units.
(6) A person may complete and sign a form for the purpose of this clause to replace and correct a form previously completed and signed by the person for that purpose, in which case the answers given on the earlier form are to be ignored for the purposes of determining the person's entitlement to possess or use a firearm after the replacement form is signed.
[3]
The evidence
The respondent did not adduce any oral evidence, but relied on the s 58 documents (exhibit R1) and certain other documentary material. The applicant presented both oral and documentary evidence.
[4]
Mr Christopher Kogias - applicant
The applicant tendered an affidavit sworn on 17 September 2020 (exhibit A1) in which, after outlining some procedural matters, he stated that his licence had been revoked in 1994, but he began using firearms when he was 16, in 1963. He had owned and used a wide range of firearms of different types until 1993 when his licence was suspended and his firearms were impounded. During that period he used firearms a great deal in recreational hunting and target shooting, and was a member of the Sporting Shooters Association for many years. In all that time he used and handled firearms very responsibly and with great care. He was trained in firearms use by his late father and also by the Australian Defence Force. In all those years that he owned and used firearms, he had not at any time been involved in misusing them or using them in a dangerous manner. He had always been a law-abiding citizen. He studied to be a lawyer because he respects the law and the very important role it plays in civil society.
He has no criminal record or any record of violence or unruly behaviour. He also has an excellent driving record since he began driving when he was 16. He had covered many thousands of kilometres in driving over that long period, and at 73 years of age still does a lot of driving. As part of his National Service training, he served for 6 years in the Citizen Military Forces (CMF) and was trained to use a number of small arms as well as light anti-aircraft guns.
It was not correct to say that he had been an inpatient of the psychiatric unit in St George Hospital in December 1993. He had admitted himself as a voluntary patient at a time he was under a lot of stress as his marriage of 21 years had broken down and he was working full-time in a very responsible position, while trying to study for his law examinations. The stress of all that was causing him escalating memory loss, which caused him great distress and anxiety and forced him to postpone his examinations and try to rest and recuperate.
As regards his suffering mental illness at that time, he admitted that he had depression and anxiety caused by the factors mentioned above. He did not have "delusional jealousy" at the time in relation to his then wife of 21 years, which was what some young doctors who saw him at the hospital for only a few hours diagnosed him as having. There was never any domestic violence in their marriage, nor did he ever make any threats towards his then wife or anyone else. The police were never called about any domestic violence or complaints about his conduct.
[5]
Mr Bradley Jones - psychologist
A forensic psychologist, Mr Bradley Jones, prepared a detailed report concerning the applicant dated 21 September 2020 which gives a thorough description of his background, including his diagnoses of paranoid schizophrenia in 1973 and delusional jealousy in 1993. On the basis of his clinical forensic interview, the results of relevant clinical and personality profiles and collateral information contained in documentation provided to the author, Mr Jones concluded that the applicant is not suffering from any psychiatric or psychological disorder.
He also answered the specific questions posed by the Firearms Registry risk assessment, noting the 1973 and 1993 diagnoses but stating that the current assessment showed the applicant no longer to be suffering a mental illness or mental condition. He did not think the applicant's condition or impairment had the potential to put public safety at risk. He also noted that "Whilst it cannot be categorically stated that Mr Kogias will not relapse, there is no information or evidence to indicate that he will relapse. Mr Kogias's current life circumstances (employment, relationship) are very strong protective factors against relapse".
In oral examination by telephone at the hearing, Mr Jones said that his consultation with the applicant on 15 September 2020 lasted about 3½ hours. The tests used are valid and recognized instruments, and include questions about whether the subject has experienced anxiety and depression in the last two weeks. He pointed out that psychiatrists do not usually perform psychometric tests.
In cross-examination, Mr Jones conceded that the tests involved self-reporting and that a subject who understood the relevance of the scoring system could seek to give a favourable impression. The tests were reliable only if the subject told the truth and contain no questions testing for invalidity. The Minnesota personality inventory does, however, contain tests to detect deception, by asking the same question in several different ways. The applicant had put himself in a positive light, but that did not suggest that his answers were untrue. Not everyone fits into a clinical category, but that does not mean that they are telling lies. It is a matter of clinical judgment and there was no evidence that the applicant was being deceptive.
The tests used spoke to the previous week and two weeks, although the Minnesota test was not time specific in that way. The suicide question would be reflected in the overall score and would be a big red flag. The report's conclusion on p 7 that the applicant was not suffering from any psychological or psychiatric disorder meant that he did not suffer from the disorder at that time. Referring to the 1973 and 1993 episodes, Mr Jones said that people have such periods in life which may depend on the stresses they are experiencing and their background. Such incidents could be isolated, and one would look at conditions existing at the time and consider whether resilience had developed.
[6]
Mr Allan Anderson - psychologist
The applicant also relied on a psychologist's report by Mr Allan Anderson dated 5 November 2018 (exhibit A1, annexure J), which stated that he had assisted the applicant using the Personality Assessment Inventory (PAI), which is frequently used and highly regarded as a test of the personality and a person's functioning within the community.
The PAI results on the applicant presented as a particularly "normal" personality with no apparent defects that would require further examination. He had no psychological or psychiatric problems that would in any way hinder him holding a licence for firearms. He noted the respondent's concern about the applicant's answer to his question regarding self-harm or suicide. On his assessment, in collaboration with the Clinical Interruptive Report of the PAI, he stated categorically that in his opinion Mr Kogias does not have suicidal ideation. "That is not to say that the time in his early history this was the case. However I can state that he presents as a perfectly 'normal' man with no particular psychological or psychiatric personality defects. That certainly includes the fact that he does not have suicidal ideation".
[7]
Dr Makram Girgis
The applicant also tendered a short hand-written letter from a consultant psychiatrist, Dr Makram Girgis, dated 25 June 2002 (exhibit A1, annexure F). The letter stated that Dr Girgis had assessed the applicant's mental status on two occasions (including the date of the letter) and had found him to be mentally stable. With respect to his application for a firearms licence, he "found him to be a person who is fit to have a firearms licence".
After the hearing the applicant by consent tendered a handwritten chronology of the relevant stages of his interaction with the Commissioner (exhibit A6; page 3 of the chronology is missing).
[8]
Applicant's submissions
The applicant relied on two sets of detailed written submissions, one filed on 22 September 2020 (exhibit A5) and the other on 30 October 2020 (exhibit A3). In the former the applicant denied that he had been suffering from delusional jealousy in 1993 or that he was of unsound mind as that term is understood in the law. He pointed out that he had spent a lifetime as a law-abiding, useful, responsible and hard-working member of society and had held a number of responsible positions of employment over a period of 43 years, with 21 of those years being in full-time Commonwealth service.
His educational and work history and absence of any police record or report showed that there was no factual basis for the diagnosis performed. He had possessed and used all types of firearms over several decades from the age of 16 years and had spent six years in the army reserves, where he was trained in the use of small arms and artillery pieces. Not at any time had he put public safety at risk. The diagnosis by the two psychiatrists at St George Hospital was based on a very short interview and was deeply flawed as it was not based on any credible evidence.
The allegation that he had schizophrenia was incorrect and he was wrongly diagnosed with the illness. He had never had the symptoms associated with it. His work record proved that he had never had schizophrenia, which is a life-long and debilitating disease that needs medication to control it. The 1973 attempted suicide by the applicant referred to was only over a thought that he had about suicide and he did not attempt to carry it out. That was the only time he had thought about it.
There was no evidence of any conduct or behaviour of the applicant that was attributed to delusional jealousy. Apart from those episodes of depression and anxiety in 1973 and 1993, which were brought on by some life problems and were of short duration, the applicant had not had any other episodes of mental health problems in his life. The Commissioner had relied on language in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28], that said that the Commissioner had the responsibility to ensure that licenses were only held by persons who pose "virtually no risk to public safety". In Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66], however, the tribunal had said that the question of risk was to be viewed "in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct".
[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 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.
[10]
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.
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]).
[11]
Current mental health
The Commissioner does not contend that the applicant is currently suffering from a mental illness. For that reason the respondent does not rely on s 11(4)(c) but treats the question as a matter relevant to the public interest.
The respondent's concerns arise from the fact that the applicant was diagnosed in 1973 as suffering from paranoid schizophrenia, and in 1993 as having delusional jealousy. Information about the 1973 diagnosis came to light only in the course of enquiries in connexion with the applicant's unsuccessful appeal against licence refusal in 2002.
The applicant's position is that he had never suffered from those conditions and that the diagnoses were wrong. He acknowledges that he was suffering from depression and anxiety at the relevant times but submits that they were short-lived episodes and that he has had no mental health problems since 1993. He points to his successful work record, his unblemished criminal history, absence of any reports of domestic or other violence and his extensive, incident-free handling and use of firearms in a sporting context since 1963 and in the Citizen Military Forces for six years.
He denied that he was an inpatient at St George Hospital in 1993 (on the ground that he voluntarily admitted himself) and denigrates the two hospital psychiatrists who assessed him as "some very young and inexperienced medical interns" (exhibit R1, annexure 5). Yet Dr Grassy was the staff specialist in psychiatry and Dr Skarbek was the psychiatry registrar - they were far from being "some inexperienced medical interns". In cross-examination the applicant claimed that the diagnosis resulted from the fact that "The doctors didn't like me", a dubious proposition.
Further, the two hospital psychiatrists explicitly wrote that the applicant was "currently an inpatient of St George Hospital Psychiatry Unit" (exhibit R1, annexure 7). And the fact that they took the trouble to write formally to Kogarah Police, at a time when firearms were regulated by the more liberal legislation in force in 1993, and recommended licence suspension, shows that they viewed his condition as serious.
Mr Kogias also argued that the diagnosis was wrong because the head of psychiatry at St George Hospital allowed him to go home, whereas the other two psychiatrists recommended detaining him. Their 21 December 1993 letter did not, however, recommend keeping him as an inpatient, but only that his firearms licence should be suspended.
[12]
False or misleading information
The other ground on which the respondent seeks to affirm the licence refusal is the applicant's provision of false or misleading information in documents lodged under the Firearms Act: "The applicant holds himself out to be a person who has strictly upheld the law in his private and professional capacity. However the conduct of the Applicant in providing false and misleading information on two occasions without explanation or without acknowledging that he has acted inappropriately are matters of significant concern", the respondent contends.
Legislation such as the Firearms Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and similar orders serve the public interest by establishing a regulatory structure for an activity that not only protects the public from harm, but also helps to maintain public confidence in the licensing scheme by signalling that those whose activities do not meet the required standards will not be granted a licence or permit: Moujalli v Roads and Maritime Services [2017] NSWCATAD 141, [52] - [53]. One of the expressed objects of the Firearms Act is "to establish an integrated licensing and registration scheme for all firearms": s 3(2)(b).
Specifically in the context of firearms licensing, the tribunal stated in Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240, [26], that "the system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act". That such information must be true and correct is made explicit by s 70, which states that "A person must not, in or in connexion with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular…."
The most current matter of concern is the applicant's submission of false information in his licence application by answering "No" to the question whether he had had a licence revoked or refused. Also relevant is his answering "No" to a similar question in a P650 form, but the application is the principal concern.
He applied for a licence on form P561. The form is signed twice and bears two dates, 6 November 2018 and 11 April 2019. It was received by the registry on 17 April 2019 (exhibit R1, annexure 3). In it the applicant did not disclose that he had previously had his licence revoked and a licence application refused. He had crossed out a cross in the answer "Yes" to question H(a) and replaced it with the answer "No", which constituted a false and misleading statement. He had signed the declaration acknowledging that he was aware that it is a serious offence to make a statement in the application that is false and misleading, and certified that the information was true and correct in every respect. That was prima facie a contravention of s 70.
[13]
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: 04 December 2020
In this case the respondent does not contend that the applicant is not a fit and proper person to have possession of firearms within the meaning of s 11(3)(a) of the Firearms Act, or that he is of "unsound mind" within the meaning of s 11(4)(c). The issue in this case is thus whether it would be contrary to the public interest for a category AB licence to be issued to the applicant, within the meaning of s 11(7) of the Act.
He was in St George Hospital for about five or six days after he had voluntarily admitted himself. The doctor who was head of the psychiatric unit at the time believed him when he explained that he did not have delusional jealousy, and that he was the one who ended his marriage, and wanted nothing further to do with his wife. The head of the unit believed him and she permitted him to discharge himself from the hospital. In doing so, it would seem that she did not agree with the diagnosis of the other two doctors who had diagnosed delusional jealousy and refused to allow him to leave the hospital. As for harming himself, he would not have voluntarily admitted himself to the hospital for his depression and anxiety if he had any intention of harming himself.
His 2002 application for a firearms licence was refused because it was alleged he was of unsound mind and had schizophrenia, but that was not correct. He did have depression and anxiety, but those conditions did not mean that he was a danger to himself or anyone else, and he definitely was not. And he was definitely able to handle his own affairs.
He was wrongly diagnosed with schizophrenia many years earlier, in 1973. His whole life, and what he had achieved over many years of hard work, showed that he could not have had that very debilitating disease for which there is no cure and for which sufferers need to take medication for life. He had not taken any drugs for any psychiatric condition since 1994 because he had no mental health problems since then, nor had he had to see any psychiatrist or psychologist. He had been able to function very well since then, as was shown by what he had achieved by way of becoming a lawyer and running a busy and successful but small law practice on his own.
Annexure E to his affidavit showed his employment for 21 years in a large Commonwealth department, where he had interacted with a large number of staff and management, and had a supervisory position. He also interviewed many thousands of clients of the Department over that 21-year period. As a supervisor, he was often required to intervene in very difficult situations involving dealings with angry and sometimes violent clients who were abusing staff. He would not have been able to do those things if he had schizophrenia.
The report that he had attempted to shoot himself in 1973 was untrue. He admitted that he had thought about taking his own life, but that was just a passing thought. The main reason he was not successful in his 2002 application to the ADT was that he had been unable to obtain a proper medical report from a psychiatrist. The psychiatrist he did see in 2002, Dr Girgis, produced a very brief, handwritten half-page document that merely stated that he was mentally stable and was suitable to hold a firearms licence. In no way did it address the questions in the letter from the police that Mr Kogias had given him. As he expected, the report was given little weight by the tribunal, but at that time it was too late for him to seek another report from a different psychiatrist.
As part of his current firearms licence application, he had completed and signed a form P561 on 16 November 2018 in which he indicated at H(a) "Personal history", that he had a firearms licence cancelled. He answered question (H)(d) with a "No", because he did not attempt suicide in the past, he only thought about it. He completed a form P650 also on 5 November 2018 so that he could complete a firearms safety course on a rifle range. On that form at B(a) "Personal history", he answered "Yes" to having a firearms licence cancelled. He answered "No" to question B(e) that he did not attempt suicide, for the same reason as given above. Because he had indicated that he had a firearms licence cancelled, he was not permitted to do the firearms safety training course.
He was informed that he should see a treating doctor, "(such as your GP, psychologist or psychiatrist)" to determine if his circumstances had changed and whether he should answer "Yes" or "No" to question B(d) (scil. B(e)). He was also advised that if his doctor could certify that he could answer question B(e) differently, then he could do so relying on cl 129(6) of the regulation. Over the years since 1994, he had not had much contact with doctors because he had been in good health and had no mental problems. He had not disclosed his past medical history to any doctor, because he had had no problems with his general or mental health for many years. He did not see the relevance of mentioning much of his past mental health issues to any psychologist because he had no problems for over 24 years and was still not having any problems.
He was assessed by Allan Anderson, psychologist, who after some hours of testing him provided him with a report dated 5 November 2018. That report showed that he presented as "a perfectly 'normal'" man with no particular psychological or psychiatric personality defects and no problems that would hinder him holding a firearms licence.
On 6 November 2018 he completed an application for a firearms licence (form P561), on which he indicated at H(a), as to whether he had had a firearms licence cancelled, with a "No". He also answered question H(d) with a "No", because he had not attempted suicide in the past, he had only thought about it. Then on 7 April 2019 he successfully completed a safe shooting course at the Wingham rifle range and also completed a form P650, on which he answered "No" to questions B(a) and B(e) in accordance with cl 129(6) of the regulation. The criticisms in the registry's refusal letter of 28 August 2019, that he "failed to declare that he had previously had his firearms licence revoked and had a firearm application refused" were answered by his reliance on cl 129(6).
It was not correct that he would present a risk to the safety of the public because of mental illness. Throughout the 30-year period that he had owned and very frequently used firearms, there was no evidence that he had used them in any way other than very responsibly and with great care. He had never been charged with any firearms offence or any criminal offence during that whole period. As for the mental health issues that he had in 1973 and 1993, which were only depression and anxiety, those were resolved many years ago and to this day he had not had any mental health problems, or any physical health problems. Nor does he take any type of medication for any mental or physical health problems, because he has none.
In oral evidence by telephone at the hearing, the applicant adopted that affidavit. When asked about the report of the 1973 incident, he said he had broken up with his fiancée who was going overseas. He was upset when she departed and was not feeling well, so he went to hospital. He had considered suicide. He had been diagnosed with schizophrenia but had not attempted to shoot himself. He did not take hold of a gun, though he seriously considered shooting himself and told the hospital staff so. He did not know why the report referred to an attempt. After that he never saw his former fiancee again and recovered from the episode. He received treatment with drugs in the hospital, and for two weeks thereafter.
The 1993 incident arose through his breakup with his wife. He voluntarily admitted himself to hospital because of stress and memory loss and was there for 5 days. He did not know why he had been diagnosed with delusional jealousy. He had received medication during the five days he was in the hospital, but was not suffering from schizophrenia, nor did the hospital report say he was. He was mentally ill at both times, in 1973 and 1993, but his problems were situational. He did not receive any treatment after leaving hospital, but was simply told to take it easy. At that time he was living with his mother. If he had needed help he would have sought it.
The ADT 2002 report referring to an incident in 1996 was not correct, as he was very well at that time and Hennessy DP had said he was of sound mind. He had received a payout when he left the Commonwealth service and was able to buy a house. It was in 1993 that he had received the jealousy diagnosis. That was because the doctors did not like him.
He had told Allan Anderson about his mental health issues and diagnoses, and had told him that they were wrong. Mr Anderson did not refer to schizophrenia in his letter, because he did not agree with that diagnosis. He had later told Mr Anderson that his report was insufficient for the registry's purposes, and Mr Anderson had said that it would be better if he saw psychiatrist. He had then seen Dr Girgis, whom he told about his history.
Asked about his statement in his affidavit that he had not disclosed his past medical history to any doctor because he had had no problems with general mental health for many years, he reiterated that he had not told any doctors because he had no problems. When he saw Mr Anderson, he did tell him about his history and suicidal ideation, but did not tell his GP or other doctors because those matters were not relevant. He agreed that Mr Anderson had not mentioned suicidal ideation, but stated that he had in fact told him, and he was shocked to learn of the schizophrenia diagnosis.
He had twice tried to see a psychiatrist, but was unable to do so in time, and had been lucky to see the psychologist Mr Bradley Jones. He would have gone to a psychiatrist and revealed his entire history. The reason he had approached the Wingham rifle range after being rejected by Port Macquarie was that Wingham was closer. He had no reason to lie and did not need to complete a safety course because he had previously held a licence.
About his answer to question B(a) on his P650 for Wingham rifle range dated 11 April 2019 where he had marked "No" but crossed it out and substituted "Yes", he denied that he had initially given a false answer so that he could undertake the safety course. He said the initial answer "No" was an error but he had corrected and initialled it. He could not explain it, but he had corrected it. It was not by design.
Mr Zoppo then drew the witness's attention to his licence application dated 17 April 2019 (exhibit R1, annexure 3), question H(a), dealing with refusal, suspension, cancellation or revocation of a firearms licence or permit. He had initially checked "Yes" but had crossed it out and substituted "No". The witness agreed that he had changed it, but he thought he could change it by relying on cl 129(6). He could not understand why he had said "No". It was not intentional, and he had said "Yes" on his later forms. It was an error that he had corrected.
If the applicant had said that his history was not relevant, that could be a material observation, as there was no ground for doubting the 1973 and 1993 diagnoses. A patient's opinion on such matters carried little weight.
It was pointed out to the witness that both of those incidents had followed personal relationship break-ups and he was asked whether that could happen in the future. He replied that he could not rule out functional difficulties arising in the future. If Mr Kogias was suffering from schizophrenia or delusional paranoia, that could be a concern in relation to firearms. While there was a possible risk, everyone presents some risk and the question is not what is possible but its probability. It means looking at variables to discern the probability of such an event. He did not think there was any real or appreciable risk at present, but if similar circumstances were to arise, there would be some possibility of relapse, but it would depend on the circumstances and on the treatment received. So far there had not been any recurrence in 27 years.
The 1993 episode might not have required any medication after release as the situation could alleviate. One would need to ask the doctors who treated him in 1993 to comment properly. If he had received no treatment after his release in 1993, the risk of relapse would depend on what he had learned in the course of treatment, his resilience and support network. But 1993 was 27 years ago and there had been no other instances, although he would have faced the ordinary stressors of life. People can improve in their ability to handle stress, but it is hard to quantify.
In re-examination Mr Jones said that his face-to-face consultation with the applicant, apart from the time taken to complete the tests, was about 2½ hours. He had seen no symptoms of depression, no disturbed thoughts, anger or communication breakdown, and no symptoms of schizophrenia.
In the further written submissions filed on 30 October 2020 (exhibit A3), the applicant stressed that there was absolutely no evidence of conduct on his part to show that there was ever a risk to the public because he owned firearms. There had never been any behavioural pattern suggesting that he is of unsound mind. He stressed once again that his diagnosis of schizophrenia in 1973 was incorrect, although he admitted that he had thought about suicide in 1973, but not in 1993. The two St George doctors in 1993 had not diagnosed him with schizophrenia.
The respondent contended that he had completed a P650 form for Wingham rifle range and not disclosed that he had previously had his licence revoked or refused. But that form did show that he did in fact answer "Yes" to the question of whether he had a firearms licence suspended, cancelled or revoked. That was clearly shown in a copy of that form (exhibit A1, annexure K).
Answering "Yes" to that question had been an error, because he had intended to answer it with "No". The reason for that related to a letter dated 26 June 2018 from the registry (exhibit A1, annexure I). That letter informed him that if he saw a treating doctor and that doctor determined that his circumstances had changed, he could then change the answers he had put in his P650 form, relying on cl 129(6). That was what he did, after seeing the psychologist Allan Anderson, who assessed him as not suffering from any mental illness and that he was a normal person. That explained why he had answered those P650 forms with the answer "Yes" to the question about licence cancellation or refusal on the forms signed in November 2018 and also why he had answered "No" to the same question on 11 April 2019 below the date of November 2018. Those were the forms that he had amended pursuant to the advice in the letter from the registry dated 26 June 2018.
As to the contention that in his application for a firearms licence in 2019 he had not disclosed his previous licence revocation, that was incorrect. He completed a form P561 on 6 November 2018 and indicated on that form that he had a licence cancelled. His letter dated 18 January 2019 to the registry confirmed those two facts (exhibit A3, annexure A). The copy of the form showed that initially, when he first signed the form or 6 November 2018, he had answered "Yes" to the question about prior suspension or refusal, as mentioned in his letter of 18 January 2019. He sent that form to the registry at about that time.
Then on 11 April 2019 he crossed out the "Yes" answer and substituted "No", when he again signed the same P561 form on 11 April 2019, just below where he had signed it earlier on 6 November 2018. He sent that amended form to the registry after he had seen Mr Anderson, and relied on the advice from the registry letter of 26 June 2018 that he could change his answers. His letter dated 15 April 2019 confirmed that he had also sent a form P561 to the registry. That was the amended form, where he had crossed out his answer "Yes" and replaced it with "No".
"I admit that how I answered those forms has complicated things. That was not my intention at the time. However, I did not provide false or misleading information to the Commissioner of Police, and nor did I provide a false application. It was never my intention to do so", he wrote. He maintained that the psychiatrists had misdiagnosed his condition in 1973 and 1993, and that on both occasions the psychiatrists were wrong. That was because between 1973 and 1993 he had no symptoms of any mental illness that required treatment. "Surely this is evidence enough to show that I did not have the mental illness diagnosed by those doctors in 1973 and 1993", he continued.
The psychologist's report from Mr Anderson stated that "Mr Kogias presents as a perfectly normal man with no particular psychological/psychiatric personality defects", and that he had "no suicidal ideation". The comprehensive report from the well-qualified and experienced forensic psychologist, Mr Bradley Jones, and that of Mr Anderson, showed that the respondent's claim that there was no evidence from a psychiatrist that he no longer suffered from that illness was very misleading. That is because there is such evidence from well-qualified psychologists, which is by no means inferior to a psychiatrist's evidence. In any event technical difficulties and other problems had prevented him from obtaining a report from a psychiatrist, though he had attempted to arrange for one from Dr Chris Pollock.
Further, the illnesses he had in 1973 and 1993 could not have been very serious, because since that time he had not had any mental health issues, nor had he needed to seek medical treatment or take medication for such a problem or for physical health problems.
The applicant's internal review request filed with the Firearms Registry or 23 September 2018 (exhibit R1, annexure 5) also assists in further understanding of the applicant's position. In it he states that, contrarily to the letter from the St George Hospital psychiatrists, he had not been an inpatient in December 1993, because he had admitted himself as a voluntary patient.
He did not have delusional jealousy at the time in relation to his then wife of 21 years, "which is what some very young and inexperienced medical interns wrongly diagnosed me as having". The doctor who was the head of the psychiatric unit at the hospital believed him when he explained to her that he did not have delusional jealousy and that he had separated from his wife. She permitted him to discharge himself from the hospital, but would not have done so if she had thought he was a risk to himself or anyone else.
He had not disclosed his past medical history to any doctor, because he had had no problems with his general health or his mental health for years now. "I therefore did not see the relevance in my doing so. Over the years I completed a law degree via part-time study whilst working full-time, and I have practised law since October 2001".
He decided to see a psychologist, as suggested by the registry letter of 26 June 2018, to have them do a mental health assessment of him. "I did not see the relevance of mentioning my past mental health issues to this Psychologist because they had become irrelevant as I had no problems were over 24 years. I was assessed by Psychologist Allan A Anderson who provided me with a Report dated 5 November 2018", which found that he had "no psychological/psychiatric problems which would in any way hinder [his] holding a licence for firearms".
He was not permitted to undertake a firearms safety course because he had completed a form P650 declaring under question 8(a) that he had a firearms licence cancelled. "I then did nothing further until 7 April 2019 when I went to the Wingham rifle range and successfully completed an SSAA Safe Shooting Course, and I also completed a P650 form that was handed out to me by the course instructor. He advised he was going to post this form to the Firearms Registry. On the form I answered "no" to questions 8(a) and 8(e) in accordance with clause 129(6) of the Firearms Regulation 2017".
"What I have said in the above paragraph answers the criticism…that I 'failed to declare that I had previously had my licence revoked and had a firearms application refused'", he wrote.
In oral submissions by telephone at the hearing, the applicant reiterated those points, and added that three medical reports had said he had no mental problems that would impact on firearms safety, from Dr Girgis, Mr Anderson and Mr Jones.
He had had no problems since 1994 and had not taken any medication. There was no evidence of any mental illness or of any threat to public safety. His illnesses had been serious but of short duration. He had recovered and had no problems since 1993. There was no evidence that he presented any danger and he had no record of criminal offences or of violence. He was a law-abiding citizen. He had not attempted to mislead when completing his forms, but had simply made some errors.
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].
It has recently been held, in the context of liquor licensing, that the decision-maker should take account of public benefits only in so far as they arise from the licensing scheme itself. In Australian Leisure and Hospitality Group Pty Ltd v Commissioner of Police [2020] WACA 157, [50] - [52], the Western Australia Court of Appeal pointed out that, "There is a difference between what, in general terms, might be characterised as a public benefit - as the economic benefit factors undoubtedly are - and identification of the concept of the public interest in the context of [liquor licensing]".
The court continued: "Virtually all statutory regulation has the capacity to impact on economic activity in a general sense, if not directly then at least indirectly. It does not follow from the circumstance that other economic activities may be affected, either positively or negatively, by the exercise of the statutory power or discretion granted on a public interest criterion, that economic benefits are a relevant public interest consideration….We construe the public interest criterion in s 38(2) of the Act as encompassing the public interest in relation to the sale, supply and consumption of liquor. We identify that as being the relevant content of the public interest from the subject matter, scope and purpose of the Act…."
The respondent's public interest case in this matter is in two parts. First, whether the applicant's current mental state may cause his possession and use of firearms to prejudice public safety. Secondly, whether the applicant's provision of false and misleading information when making a licence application and completing a P650 form means that it would not be in the public interest to grant him a licence.
The applicant argued that there was no evidence to support the 1973 and 1993 diagnoses, and pointed to his untroubled personal and employment record since 1993. Yet the diagnoses are evidence in themselves. While the forensic psychologist Mr Bradley Jones said that the incident-free history over the intervening period was a positive sign and could indicate among other things that he had developed greater resilience in coping with the stresses of life, he could not rule out a relapse if the applicant were to find himself in similar circumstances in the future.
The respondent submitted that in the absence of a recent evaluation by a psychiatrist, the 1973 and 1993 diagnoses were still matters of concern. The applicant explained that he had twice attempted to arrange for a psychiatrist, Dr Chris Pollock, to carry out an evaluation, but his efforts had been frustrated by technical problems and other circumstances. Further, he had supportive assessments from a psychiatrist and two psychologists, Dr Girgis, Mr Anderson and Mr Bradley Jones.
Dr Girgis's brief, hand-written report dated 25 June 2002 (exhibit A1, annexure F) states that he found the applicant "to be a person who is fit to have a firearm licence". The letter does not respond to the detailed questions posed by the respondent and is insufficient for licensing purposes. Nevertheless, it is an assessment from a consultant psychiatrist following two sessions with the applicant and cannot be completely disregarded.
The psychologist Mr Anderson's report dated 5 November 2018 also does not respond to the specific questions on which the Commissioner requires answers, but is quite categorical that the applicant presented as a particularly normal personality with no apparent defects that would require further examination and with no psychological or psychiatric problems that would in any way hinder him holding a firearms licence.
"I can state categorically," he continued, "that in my opinion he does not have suicidal ideation. This is not to say that at the time in his early history this was the case. However I can state that Mr Kogias presents as a perfectly 'normal' man with no particular psychological/psychiatric personality defects". Although it does not meet the criteria required for the Commissioner's purposes, the report does constitute evidence that the applicant is not currently suffering from any mental illness.
The comprehensive report by a forensic psychologist, Mr Bradley Jones, dated 21 September 2020 is to a similar effect and does respond to all of the questions posed by the Commissioner. On the basis of a clinical forensic interview, analysis of the results of relevant clinical and personality profiles and collateral information contained in the documents provided to him, Mr Jones concluded that the applicant is "not suffering any psychiatric or psychological disorder". In cross-examination Mr Jones acknowledged that a patient's opinion about a diagnosis carries little weight, but otherwise did not significantly qualify his conclusions.
The applicant repeatedly stressed the absence of any mental health problems or other adverse indications in the 27 years since the St George Hospital diagnosis and, as was noted above, Mr Jones agreed that such a record was a positive sign and probably indicated that Mr Kogias had developed greater resilience in coping with life's problems and that the outlook for him was positive (although he could not completely rule out the possibility of a relapse under the pressure of circumstances).
Notwithstanding the absence of a recent assessment by a registered psychiatrist as sought by the respondent, the evidence as a whole, including the absence of any observed problems for the last 27 years, leads to the conclusion that the applicant's current mental state does not present a "real and appreciable risk" to public safety, as understood in Webb, such as would make the issuance of a category AB firearms licence to him contrary to the public interest, and I so find.
On 6 April 2018 he had completed a form P650 declaration for Port Macquarie rifle range, which pursuant to cl 129 enables unlicensed persons to shoot on an approved range for the purpose of completing a safety course (exhibit R1, annexure 2). To question B(a) about prior refusal or cancellation of a licence, he ticked "Yes", adding "in 1993 pursuant to AVO". As required by cl 129(5) in cases where an applicant marks "Yes", Port Macquarie rifle range refused him permission to undertake their course.
He completed another P650, this time for Wingham rifle range (exhibit A1, annexure H), which is signed twice and bears two dates, 5 November 2018 and 11 April 2019. In cross-examination the applicant said that he had only approached the Wingham range because it was closer, not because he had been refused by Port Macquarie. In the form P650, in response to the same question, he stated that he initially marked "No", but scratched that out and marked "Yes", initialling the change. But both the "Yes" and "No" boxes are marked, and while the "Yes" box is initialled, there is no way of knowing which was marked first, if that matters.
The applicant sought to explain his conduct by referring to a letter from Ms Tina Walker of the Firearms Registry dated 26 June 2018 which stated in part that, "We advise that upon review of records maintained by the NSW Police Firearms Registry, you are required to respond "yes" to the personal history question or B(d) [scil. B(e)] and as such your treating doctor (such as your GP, psychologist or psychiatrist, is best placed to advise whether your circumstances give rise to the requirement to answer "yes" or "no" to question [B(e)]. In the event that your doctor certifies that you are entitled to answer this question differently, you may do so by placing reliance on clause 129(6)…."
He completed another form P650, answering "No" to both questions "in accordance", he said, "with clause 129(6) of the Firearms Regulation 2017". That form P650, he wrote, was handed out by the Wingham course instructor at the end of the course. The instructor said he was going to post it to the registry (exhibit R1, annexure 5). It does not appear to be among the documents before the tribunal, but the applicant states that he answered both question B(a) and B(e) "No" (ibid.). The applicant confirmed that there was no copy of the completed form in the respondent's documents: exhibit A6, para 12.
The applicant then went on to argue that because he was entitled to change his answer to the attempted suicide question, he was also entitled to give a false answer to the question about licence refusal or cancellation on his licence application P561 form: "What I have presented in the above paragraph answers the criticism... that I 'failed to declare that I had previously had my licence revoked and had a firearms application refused'", he wrote. The applicant advanced the same argument in various formulations in other parts of his evidence and submissions: e.g. exhibit A1, paras. 47 - 49.
That proposition is untenable for several reasons. First, Ms Walker's letter nowhere suggests that the applicant may answer "No" to the question about licence cancellation or refusal. Secondly, cl 129 applies only to persons seeking to rely on the exemption in s 6B for unlicensed persons wishing to shoot on approved ranges for the purpose of completing a course. It has nothing to do with information supplied for the purposes of a licence application. Clause 129(6) explicitly states that "A person may complete and sign a form for the purpose of this clause to replace and correct a form previously completed…." (my emphasis). Thirdly, nothing in the provision, or in Ms Walker's letter, suggests that an applicant is entitled to give false information in any circumstances. Indeed, the purpose of the new form must be to "correct" an earlier form, not to produce an incorrect one.
In cross-examination the applicant said that his incorrect statements in the application and the form P650 were not by design, were errors and were not intentional). He said he could not explain them (see paras 37 - 38 above). But while a misstatement on one form might be explicable, misstatements on two separate forms would not, especially when the applicant is a lawyer. His practice of changing his answers and completing documents (P561 and P650) with two signatures and two different dates on each one (exhibit A6, paras 13 to 16) does not assist in following his line of argument. In his written submissions he conceded that "I admit that how I answered those forms has complicated things". He was right.
Among the applicant's documents were some favourable work reports and three supportive references, from Mr Richard Fischer, solicitor, Mr Philip Davies, barrister, and Ms Leanne Marlow. They are to be taken into account, but as the respondent raises no issue of fitness and propriety, they do not take the matter much further.
Whatever the true position as regards the form P650, therefore, there is no doubt whatever that the applicant was aware at the time of lodging his application (the application that is the subject of these proceedings) that the information he had given about prior licence refusal or revocation was false. The fact that he crossed out "Yes" and substituted "No", and vice-versa, in itself shows that he gave some thought to what he was doing.
The functioning of a proper system of firearms licensing is one of the stated objectives of the Firearms Act, which depends on applicants providing true and correct information in a comprehensible manner. That is the reasoning behind s 70. It is nothing to the point to claim that the registry already has access to information about prior revocations or refusals. Locating it might require the registry to conduct an investigation into the license history of every applicant, whereas it should be able to rely on the veracity of persons having dealings with it in determining whether to give an application closer attention. As an experienced legal practitioner, the applicant would have been aware of that.
In view of the evidence concerning the applicant's haphazard and negligent (at best) attitude to compliance with the legislative provisions concerning the supply of information by applicants, it is not at present in the public interest for a firearms licence to be issued to the applicant, and I so find.