Kogias v Commissioner of Police

Reasons for decision

1. 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.
2. 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.
3. The applicant appealed against the revocation of his licence, but on 29 April 1994, a Local Court dismissed his appeal.
4. 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 On the form he explained that his previous licence had been revoked as a result of his "ex-wife's revenge" because he had "left her and divorced her".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.
5. 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.
6. 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.
7. 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".
8. 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.
9. 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.
10. 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.
11. 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.
12. 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).

Applicable legislation

1. 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".
2. 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.

The evidence

1. 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.

Mr Christopher Kogias - applicant

1. 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.
2. 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.
3. 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.
4. 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.

Mr Bradley Jones - psychologist

1. 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.
2. 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".
3. 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.
4. 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.
5. 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.

Mr Allan Anderson - psychologist

1. 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.
2. 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".

Dr Makram Girgis

1. 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".
2. 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).

Applicant's submissions

1. 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.
2. 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.
3. 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.
4. 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".

Consideration

1. 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.
2. 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.
3. 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.
4. These are not adversarial proceedings. There is accordingly no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and in s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. Nevertheless, the civil standard of proof, the balance (preponderance) of probabilities, is accepted as a useful guide for tribunal deliberations.

The public interest

1. 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.
2. 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.
3. 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.
4. 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].
5. 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]).

Current mental health

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

False or misleading information

1. 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.
2. 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).
3. 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…."
4. 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.
5. 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.

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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