Lawson v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2022-12-15

Introduction

This is an application by Mr Anthony Lawson ("the Applicant") for review of a decision by a delegate of the Commissioner of Police ("the Respondent" or "the Commissioner"). The decision was to revoke the Applicant's licence under the Firearms Act 1996 ("the Act").

Background

The Applicant has no criminal record. He is a serving Corrections Officer who possesses and uses firearms in the course of his employment.
In March 2002 the Applicant was granted a Category AB firearms licence. The licence was renewed on several occasions. The most recent renewal was in January 2018. The licence was to expire in January 2023, but it was suspended in October 2019 and revoked in May 2021. The decision to revoke the licence was affirmed on internal review.
The Applicant has applied to the Tribunal for external review of the revocation decision.

Issues

The Tribunal is to determine whether the correct and preferable decision is to revoke the Applicant's firearms licence.
This determination requires consideration of whether the Applicant is a fit and proper person to hold a firearms licence and whether it would be contrary to the public interest for him to do so.

The role of the Tribunal

Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred by section 75 of the Act. The Tribunal's jurisdiction includes review of decisions by the Respondent to refuse an application for a firearms licence.
Section 75 of the Act provides for the review by the Tribunal of a decision to refuse an application for a firearms licence under the Act. This application is made under section 75 of the Act and the ADR Act.
Section 63 of the ADR Act provides that in determining and application, the Tribunal is to determine what is the "correct and preferable decision" having regard to the material before it. In reaching the correct and preferable decision, the Tribunal may: 1. exercise all of the functions that are conferred or imposed by the Act on the Respondent; and 2. affirm the Decision, vary the Decision, set aside the Decision and make a decision in substitution of the Decision, or set aside the Decision and remit the matter for reconsideration by the Respondent.
There is no formal onus of proof. In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review. Its consideration is not limited to material that was before the Respondent at the time it made the decision which is under review.
The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. The Tribunal should consider all relevant materials and ignore all irrelevant materials.
The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]: "[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. … [83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17]."
In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review.
The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. However, in determining the review, the Tribunal, must exercise its discretion in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].
The underlying principles of the Firearms Act are, relevantly: 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety; and 2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.
The underlying principles set out in section 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety: Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 at paragraph [44].
Section 24 of the Act provides: 24 Revocation of licence ... (2) A licence may be revoked - (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or … (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or … (d) for any other reason prescribed by the regulations..
Clause 20 of the Firearms Regulation 2017 provides that the Commissioner 'may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence'.

The public interest

The term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (No 2) (1995) 131 ALR 657, the Industrial Relations Court stated at 681: The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel said that: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
In Cusumano v Commissioner of Police at paragraph [23] Deputy President Hennessy stated: "There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
Section 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at paragraphs [27] - [28] Deputy President Hennessy said that in terms of public safety: "27 …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
Ward v Commissioner of Police dealt with the issue of whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at paragraphs [130] - [134].
The question of risk is not, however, to be approached in an absolute or mechanistic way, 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 at paragraphs [64] - [66].
In determining this issue, 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: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].
As noted, the Respondent also contends that the Applicant is no longer a fit and proper person to hold a firearms licence and that it is not in the public interest for him to continue to hold the licence.

Fit and proper person

The Firearms Act places an emphasis on the need for licensees being fit and proper for the role. The Tribunal has considered the issue of whether an Applicant is a fit and proper person to hold a licence under the Firearms Act on numerous occasions.
The issue of the Applicant's fitness and propriety is one of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184 at paragraph [40]. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [39].
In the context of the Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at paragraph [22].
The question of a person's fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' (at 156-7): "The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

Material before the Tribunal

The Respondent relies on the section 58 documents. This material includes a number of records held in the COPS database. The Respondent also relies on two statements provided by the Applicant's ex-partner and a number of other statements provided by persons who had witnessed events referred to in the COPS records.
The Respondent's solicitors also provided written submissions.
The Applicant relies on his own evidence and submissions. He provided two affidavits and appeared at the hearing, gave evidence, and was cross-examined. He also relies on evidence from his current partner and a number of other referees. I note for completeness that the referees each speaks highly of the Applicant.
The Applicant relies on a report provided by Mr Bradley Jones, Forensic Psychologist. Mr Jones was unavailable to give evidence or for cross-examination due to ill health.
Dr Andrew Frukacz, Psychiatrist attended the hearing and gave evidence and was cross-examined.

The Respondent's case.

The Applicant has come to Police attention on numerous occasions for domestic incidents involving violence and intimidation. The Respondent submits that these incidents reveal a lack of self-control and character traits which would make the general public concerned about the Applicant being authorised to use and possess firearms.
As noted, the Respondent relies on the history of reports which allege that the Applicant's former partner was the subject of ongoing domestic violence. It is alleged that the Applicant was responsible for ongoing mental abuse and that over the years he had subjected his ex-partner to verbal abuse, physical assaults, threats, and intimidation. The reports refer to the Applicant's temper and they gave rise to police concerns for the safety of both Applicant's ex-partner and their children.
As noted above, the COPS entries provide details in relation to the various incidents that were referred to in the internal review statement of reasons.
In a witness statement dated 13 November 2017, the Applicant's ex-partner provided a chronology of alleged incidents involving the Applicant that she alleged occurred during the time of their relationship and following their separation.
She referred to a number of incidents that occurred after she had separated from the Applicant in which the Applicant attended her residence unannounced when he was not welcome and would not leave when he was asked to do so. Several of the incidents are alleged to have been in breach of an AVO that was in place at the time. Many of these incidents that she alleged are reflected in COPS entries. The Applicant's ex-partner was not available for cross-examination.
In a subsequent statement that she made in October 2019, the Applicant's ex-partner provided a further chronology of alleged incidents that she alleged had occurred prior to their separation and afterwards. Many of these incidents are also recorded in COPS entries.
The Respondent points to several reports made to the Police as of particular concern.

7 March 2014

On 7 March 2014, Police were called to a medical centre as the Applicant's ex-partner was crying and distressed. The Applicant's ex-partner alleged to Police that the Applicant had returned from nightshift at about 6.20am on 7 March 2014 and began verbally abusing her. She alleged that the Applicant was under the impression that she had been cheating on him while he was absent.

13 November 2017

On 13 November 2017, the Applicant's ex-partner attended Wellington Police Station and reported ongoing domestic incidents between the Applicant and herself between 2009 and 2017. She alleged that:

the Applicant had previously threatened to kill her with his firearms if he found out that she had cheated on him;
she held fears around the unpredictability of the Applicant's behaviour, stating that he goes into rages, and she is terrified when this happens; and
the Applicant had tracked her down and had followed her around town. She was too scared to get out of her vehicle and go into the Police Station.
She was so scared of the Applicant that she phoned Wellington Police Station and Police met her out the front of the Police Station to ensure her safety.

She provided a statement in which she made numerous allegations against the Applicant.
Due to the fears Police held for the Applicant's ex-partner, Police took out an interim Apprehended Violence Order for her protection.

16 September 2019

In September 2019, the Applicant's ex-partner made the decision to separate from the Applicant and end their relationship. On 16 September 2019 she attended Bathurst Police Station seeking advice on her current situation. She had moved out of the family home in June and ended the relationship on 7 September. She told the Police that she believed that due to the Applicant's employment as a Correctional Officer, the ADVO was never made final. She stated that whilst the AVO was in place, their relationship was much better.
She stated that since moving out of the family home, the Applicant had attended her home without invitation and at times refused to leave, as he did not want the relationship to end. She requested that the Police speak with the Applicant about him staying away from her home.
Police spoke with the Applicant over the phone. He claimed that he attended the home late at night as he was worried about his ex-partner. Senior Constable Cooper spoke to the Applicant and informed him that his behaviour was bordering on stalking and harassment. The Applicant was told of the ramifications should he not comply with his ex-partner's wishes that he stay away.

Statement of the Applicant's ex-partner dated 27 October 2019

The Respondent relies on the evidence of Senior Constable Belinda Cooper.
The Applicant's ex-partner contacted Senior Constable Cooper in October 2019, and she attended an appointment with Senior Constable Cooper on 24 October 2022. She returned on 28 October 2019 to complete a detailed statement.
Senior Constable Cooper stated that over the hours it took to take the statement from the Applicant's ex-partner, she observed that she was timid and afraid.
In her statement that was completed on 28 October 2019 the Applicant's ex-partner outlined numerous incidence in which the Applicant was alleged to have approached her when he was not welcomed. For example, she stated:

"On the 7th September 2019 I told Anthony that our relationship was officially over, and that I didn't want to be with him anymore. I told him this over the phone and then sent him a follow up text message to him confirming what I had told him. He didn't take the news well."
"The very next day he just turned up to the house with breakfast and the kids let him in. I was in total shock that he found me yet again. I asked Anthony how he found where I was living and he basically admitted he tracked me using [their daughter's] iPad app. When Anthony turned up to the house, the kids let him in. He took my phone and car keys from me and told me we needed to talk."
"On the 10th October Anthony came to my work place in the morning. He wanted to talk and refused to leave. I thought I was going to have to put the place into lockdown due to his behaviour and that there were children around. I kept asking Anthony to leave but he refused. It was about 15 minutes later that Anthony left. I felt really scared when Anthony was there and he just doesn't care that I was at work and I had little kids around me."

Notwithstanding this evidence, in a letter to the Firearms Registry in regard to the revocation internal review process, the Applicant's ex-partner wrote on 20 August 2021: I wish to confirm that Anthony Lawson and myself are now in an amicable co-parenting situation. We have agreed upon and almost finished our financial separation and parenting consent orders and are working together as this is in the best interests of the children. Anthony has asked me to send you an email as confirmation that this is the case as I believe you are currently reviewing his application. If you wish to contact me to discuss matters any further please feel free to do so.

Ms Debra Crawford

In a statement dated 1 November 2019, Ms Debra Crawford gave an account of a number of incidents that she had either heard or observed in which the Applicant had acted aggressively towards his ex-partner.

Ms Maria Wright

In a statement dated 4 November 2019, Ms Maria Wright gave an account of incidents that she had either heard or observed in which the Applicant had acted aggressively towards his ex-partner. She referred to several occasions on which the Applicant had attended his ex-partner's workplace and refused to leave and on other occasions he would ring constantly on his ex-partner's work phone. She also reported that the Applicant's ex-partner had confided in her about how she was distressed by the Applicant's behaviour.

Ms Tiffany Wright

In a statement dated 5 November 2019, Ms Tiffany Wright gave an account of an incident that she had observed on 25 October 2019 in which the Applicant had acted aggressively towards his ex-partner. Ms Wright stated that the Applicant's ex-partner had told her that she was scared about the situation with the Applicant as it was worsening.
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Ms Chenhall, the Respondent's solicitor, submitted that there is a real concern in the community about firearms in homes and the potential for domestic violence incidents to involve firearms. This concern arises from incidents of domestic violence where the use of firearms has resulted in death and significant harm to partners and members of the family.
The Respondent does not dispute that the Applicant does not have any convictions. Ms Chenhall also submitted that many matters involving allegations of domestic violence do not result in formal convictions because the alleged victims do not wish to proceed. Victims of domestic violence often do not report incidents involving domestic violence or where they have reported such incidents do not pursue proceedings for a range of reasons including the fear of repercussions. For this reason, the fact that incidents involving domestic violence do not give rise to finding of guilt in a criminal prosecution is immaterial in the context of firearms licensing decisions.
In the present matter, there are COPS entries that indicate that the Applicant's ex-partner was reluctant to give a statement because of concern for how it might impact on the Applicant's work.
Ms Chenhall referred to my decision in Grenfell v Commissioner of Police [2021] NSWCATAD 124 in which I concluded that it was not in the public interest for the applicant to hold a firearms licence in circumstances where he was subject to a provisional AVO that was later withdrawn. Ms Chenall also points to a number of other decisions that identify allegations of domestic violence as a cause for concern.
In relation to the Applicant's failure to disclose his psychological treatment, Ms Chenhall referred to Tribunal decisions which have held that it is not in the public interest for an Applicant to continue to hold a firearms licence in circumstances where the licence has been obtained on the basis of an application that is misleading in any material particulars. In Bladen v NSW Commissioner of Police [2015] NSWCATAD 240, Senior Member Scahill held at paragraphs [53] - [54]: 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. It is not relevant that Mr Bladen has not been prosecuted in the past for any offence involving the use of a firearm. Given that Mr Bladen has on four occasions determined that he did not need to comply with aspects of the licensing scheme, the Tribunal cannot be certain that there is virtually no risk that he will decide it is unnecessary to comply with other aspects of licensing - thereby presenting a risk to public safety.
The Respondent contends that the Applicant's conduct over a number of years, as reported by his ex-partner, demonstrates that he is not a fit and proper person to hold a firearms licence. His propensity to threats and acts of violence demonstrates that he cannot be trusted to have possession of firearms without danger to public safety or to the peace.
Further it is submitted that the Applicant's conduct provides significant cause for concern as to whether it is in the public interest, particularly in terms of public safety, for the Applicant to be licenced to use and possess firearms.

The Applicant's case.

The Applicant relies on his own evidence. He provided two statements and gave oral evidence.
He has no criminal record. He has held a firearms licence since March 2002 with no reported breaches of the Act or Regulation. He uses firearms in his employment. He explained his work situation in the following terms: I completed my chemical munitions recertification course which is a two day refresher course that is required for me to be legally allowed to use chemical munitions in a Correctional Centre. I also have continued to work armed posts within Bathurst Correctional Centre approximately every second shift and approximately once per week in the community, being mainly hospital escorts where myself and another officer are tasked to take an inmate to hospital for medical treatment. Usually this would require the inmate and officers to spend extended hours in the hospital waiting area with other members of the community, including children, whilst being armed. I always ensure that I remain professional whilst managing various inmates including maximum security. To this day, I maintain the highest level of firearms safety when dealing with firearms in my role as a Correctional Officer.
The Applicant noted that in the period leading up to their separation, his ex-partner had been diagnosed to be suffering from post-natal depression. He contends that the allegations that she made against him need to be considered in light of that diagnosis. In relation to those allegations, he framed his conduct as arising out of concern for her welfare and that of their children.
When he found out that his ex-partner and children were in Wellington, he was concerned for their welfare as it was out of character for his ex-partner to travel to where she had no one to support her. He decided to go to Wellington to see if they were safe.
In relation to the ADVO, the Applicant stated that the order was based on a statement that his ex-partner had given to the police which he believes to be not true. He said that his ex-partner attempted to have the ADVO withdrawn but the matter went to a hearing and was dismissed. Costs were awarded in the Applicant's favour for part of the expenses he had incurred. His firearms licence was subsequently reissued.
His evidence is that he and his ex-partner separated in 2019 but, while they lived apart, they initially maintained a relatively amicable relationship. However, he said that the communication subsequently stopped. He was not allowed to see the children as per their previous arrangements and only had minimal time with them. He contradicted the evidence given by his ex-partner of how the relationship transpired in the period following the separation. He also raised a number of issues in regard to his ex-partner's conduct which he highlighted as having aggravated the situation. He said that he contacted the police about one issue but that they did not seem to take it seriously.
In January 2021 his daughter told him that she was abused by his ex-partner's new partner. He immediately filed a complaint, and the police took an ADVO against both his ex-partner and her partner as their daughter had stated that she had told her mother days earlier and that she did not report the issue to Police.
The ADVO was later removed from his ex-partner as it was agreed that it was in the best interests of the children to have contact with both parents.
The Applicant accepts that there has been a history of domestic issues between him and his ex-partner. This particularly concerned their separation and custody arrangement of their children. His evidence is that those issues have been resolved, by way of finalisation of both the children's custody and their financial separation and the relationship is now amicable. He points to correspondence from his ex-partner to the Firearms Registry in August 2021 as evidence confirming this to be the situation.
The Applicant is now in a committed and stable relationship with his new partner and the co-parenting arrangements appear to have resolved any future conflict between the Applicant and his ex-partner.
As noted, the Applicant relies on the report of Mr Bradley Jones. The report records that the Applicant had been diagnosed as suffering from Persistent Depressive Disorder and Attention Deficit Hyperactivity Disorder. The diagnosis was made by Dr Andrew Frukacz, Psychiatrist. However, Mr Jones indicates the Applicant's conditions are successfully managed and he is of stable mental health. Further, the Applicant's evidence is that he is no longer taking any medication regarding depression.
Dr Andrew Frukacz gave evidence and was cross-examined. His evidence was that his report had been varied at the request of the Applicant. He accepted that his report was based on information that the Applicant had provided to him. He was unaware of Mr Jones' report or of the Applicant's evidence that he had ceased medication.
The Applicant denies ever threatening to kill himself and asserts that there is no evidence to suggest that he has attempted to do so.
The Applicant refutes the Respondent's contention that he wrongly answered, "No" in answer to the question "Have you ever attempted suicide of self harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness".
Mr Mainstone, the Applicant's solicitor, referred to Section 4 of the Mental Health Act 2007 which defines mental illness as "a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms - (a) delusions, (b) hallucinations, (c) serious disorder of thought form, (d) a severe disturbance of mood, (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a) - (d).
Mr Mainstone noted that in both the report of Mr Jones and of Dr Frukacz, the Applicant was diagnosed as suffering from Persistent Depressive Disorder and Attention Deficit Hyperactivity Disorder, which were both successfully managed by medication. He submitted that there is no evidence to suggest the Applicant was ever admitted into a treatment facility or that his conditions posed a threat to his personal protection or the protection of others from serious harm.
Further, he submits that the Respondent has not adduced any evidence to refute the report of Mr Jones and Dr Frukacz, or that the Applicant posed any threat to his protection from serious harm or to any other person from serious harm.
Mr Mainstone noted that the treatment provided by the Applicant's psychologist in 2017 related to him coping with his relationship difficulties as reported by Mr Jones. There is nothing in the evidence to suggest the treatment he received was for a mental or nervous disorder.
It is submitted the Applicant was receiving counselling, not treatment for a mental illness or nervous disorder and for that reason he answered the question in an honest manner based on the purpose for which he was receiving that counselling.
In his evidence the Applicant disputed the version of several events identified by his ex-partner and provided an alternative explanation for the incidents. Under cross-examination he could not remember a number of the events.
He did not accept the Respondent's assertion that he had subjected his ex-partner to ongoing domestic violence, threats, and intimidation. He claimed that his ex-partner was diagnosed by her doctor to be suffering from post-natal depression leading up to and during their separation.
The Applicant relies on a reference provided by Senior Assistant Superintendent Brett Hanrahan. Senior Assistant Superintendent Hanrahan outlined his knowledge of the Applicant regarding his occupation as a Corrections Officer and his use of firearms in the course of that occupation. He clearly regards the Applicant as a suitable person to possess and control firearms.
The Applicant has provided evidence of the Family Court Consent Orders that are now in place between him and his ex-partner. His evidence is that since the implementation of those Orders, his relationship with his ex-partner has improved significantly.
Mr Mainstone submitted that this would allay any concerns about future adverse interactions between the Applicant and his ex-partner. He also submitted that the Tribunal would take comfort from the contents of the 20 August 2021 letter sent by the Applicant's ex-partner to the Firearms Registry confirming the status of their relationship.
The Applicant also relies on evidence from his current partner regarding his character. She wrote: I am writing this letter to provide a character reference for Mr Anthony Lawson whom I have known as a friend and colleague for a period of 6 years. During this time I have found Mr Lawson to be an honest and trustworthy person who is extremely dedicated to his family. During our relationship over the last two years I have trusted Anthony to care for and fulfil a parental role with both my children. I believe he has been a good role model and had a positive effect in both their lives. Anthony is committed to providing a good life for myself and both our children. We continue to have a good relationship. Anthony is highly regarded in his workplace by both peers and management. He is a hard working dedicated employee. He is a beloved friend and neighbour to many people in our town and frequently attends community events. I was surprised to hear about Anthony's suspension as I believe him to be a man of good moral character. Anthony has had a difficult past with the passing of his brother and his father in recent years. He has been able to handle many difficult situations including his separation with [the Applicant's ex-partner] with calmness and a level head and displays a positive outlook on life. I don't believe Anthony is a threat to himself or any other person. Anthony has always maintained an amicable and professional relationship with [his ex-partner], even at times when it has not been reciprocated. Their relationship has improved dramatically in recent times.
It is submitted significant weight should be given to this evidence.
In conclusion, Mr Mainstone submitted the Tribunal would be satisfied that the Applicant's mental health is stable and that he is no longer taking medication for depression. It is submitted that the Tribunal would be satisfied that he is not a risk to either himself or the public should he again be allowed to possess and use firearms.
It is submitted the Tribunal would be satisfied the Applicant is a fit and proper person and that it is not contrary to the public interest for him to again possess and use firearms.
Therefore, the decision to revoke the Applicant's licence should be set aside.

Consideration

I note that the Applicant's firearms licence has expired and therefore he will need to reapply for the licence regardless of the outcome of this matter.
This is a difficult matter insofar as the Applicant's evidence is clear and the evidence on which the Respondent relies is unable to be tested. None of the Respondent's witnesses have been available to give evidence.
As in all firearms matters where there is an allegation of domestic violence there is a need for extreme caution. This is particularly so in matters where firearms are involved. As I have noted above, domestic violence incidents are a serious cause for concern, even where the alleged perpetrator is not convicted of an offence and where there is no misuse of a firearm.
The public interest test involves, but is not limited to, looking at the Respondent's conduct and not the fact of the conviction or otherwise: Joseph v NSW Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] - [64]. It has been repeatedly stated that "in the context of the scheme under the Act, domestic violence incidents are a serious cause for concern, even where the alleged perpetrator is not convicted of an offence where there is no misuse of a firearm": see Grenfell v Commissioner of Police at paragraph [103].
In the present matter there are some allegations that are supported by evidence from witnesses. Ms Maria Wright gave an account of incidents that she had either heard or observed in which the Applicant had acted aggressively towards his ex-partner. Her evidence dealt with the Applicant's conduct when he attended his ex-partner's workplace and refused to leave. These observations are independent of those given by the Applicant's ex-partner.
Ms Tiffany Wright gave an account of an incident that she had observed on 25 October 2019 in which the Applicant had acted aggressively towards his ex-partner.
The Applicant has sought to downplay the allegations made against him. Both of these witnesses have given evidence that contradicts the Applicant's evidence.
Some doubt must be placed on the evidence from the Applicant's current partner regarding his character insofar as it refers to how the Applicant handled his separation from his ex-partner. The evidence does not suggest that this was done with calmness and a level head.
In the circumstances, I accept that it is probable that the Applicant has acted aggressively towards his ex-partner. I am unable to make a finding as to the extent of that conduct. I also accept that it is probable that the Applicant was experiencing his own period of distress following the separation and that he attended his ex-partner's residence when he was unwelcome. As was the situation at the ex-partner's workplace, it is probable that he was reluctant to leave.
Despite the unavailability of Mr Jones, I accept that currently the Applicant's conditions are managed by medication. Dr Frukacz was not a reliable witness as he was unaware of relevant information. In the circumstances I attribute little weight to Dr Frukacz's evidence.
However, the evidence did not significantly vary Mr Jones's view that the Applicant's conditions had been successfully managed and he was of stable mental health.
Notwithstanding the difficulty in ascertaining the extent of the Applicant's conduct, I accept the Respondent's submission that these two incidents, which are described in the evidence of Ms Maria Wright and Ms Tiffany Wright, reveal a lack of self-control and character traits which would make the general public concerned about the Applicant being authorised to use and possess firearms. For that reason, it is my view that it is not in the public interest for him to hold a firearms licence at this time.
In the circumstances, it is my view that the correct and preferable decision is to revoke the Applicant's firearms licence. Therefore, the decision under review should be affirmed.
I make no finding that the Applicant knowingly provided false or misleading information contained in his licence application.
Further, I do not need to determine whether the Applicant is no longer a fit and proper person to hold a firearms licence.
In that regard I note that it is comforting to know that the Applicant and his ex-partner now have an amicable relationship. It is also comforting to know that the Applicant is well regarded in his workplace and that he has demonstrated a responsible use of firearms in that context.
As noted, the Applicant's licence has expired. I recommend that he undertake an anger management course prior to reapplying, in order to address my concerns in relation to aggressive conduct.

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: 05 December 2023

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