Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 94 ALR 11
Briginshaw v Briginshaw (1938) 60 CLR 316
Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADT AP 16
Source
Original judgment source is linked above.
Catchwords
Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 94 ALR 11Briginshaw 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] NSWADT AP 16Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Elley v Commissioner of Police, New South Wales Police Force NSWCATAP 237
Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117
Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 366
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
McDonald v Director-General, Social Security [1984] FCA 57, (1984) 1 FCR 354
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110.
Category: Principal judgment
Parties: Mr John Tony Malgioglio (Applicant)
Judgment (14 paragraphs)
[1]
Counsel:
Ms C Langford (Respondent)
[2]
Solicitors:
Norton Rose Fulbright (Respondent)
File Number(s): 2023/00257833
[3]
Reasons for decision
The applicant Mr John Tony Malgioglio applied to this tribunal on 10 August 2023 for review of a decision by the respondent Commissioner to revoke his category AB firearms licence.
Mr Malgioglio had been issued with the licence on 15 March 2021, to expire on 15 March 2026. The licence was suspended, however, on 18 October 2022 after police had been called to intervene in a domestic incident at his residence. in the course of which he had made several threats of self-harm and displayed suicidal ideation. He had held a kitchen knife to his chest, and after his wife had intervened to stop him, had attempted to attach a tube to his car exhaust with the expressed intention of taking his own life.
On 5 April 2023, the Firearms Registry requested that he obtain a mental health risk assessment (MHRA) in view of concerns regarding the disclosure of "undiagnosed depression" from the previous year. He was asked to provide the assessment within a set timeframe (exhibit R1, pp 71-760.
On 2 June 2023, as no MHRA had been received and the mental health concerns not being allayed, his firearms licence was revoked. He sought an internal review of that decision on 19 June 2023 and on 22 June 2023 the Firearms Registry wrote to him approving an extension of time to provide the MHRA by no later than 10 July 2023. No MHRA had been received by the time the internal review affirmed the decision on 18 July 2023.
The matter came on for hearing on 13 December 2023. As the applicant is somewhat hard of hearing and unfamiliar with tribunal procedures, his wife Mrs Roberta Malgioglio assisted him on a McKenzie friend basis.
[4]
Applicable legislation
Section 24(2) of the Firearms Act sets out a number of grounds on which a firearms licence may be revoked, including s 24(2)(c), which empowers the Commissioner to revoke a licence if she is of the opinion that the licensee is no longer a fit and proper person to hold a licence.
Section 24(2)(d), provides that a licence may be revoked "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 issues in the present application are thus whether the applicant is no longer a fit and proper person to hold a licence and whether it is not in the public interest for the applicant to continue to hold a licence.
[5]
Respondent's evidence
The respondent did not call oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1) and a further list of tendered documents (exhibit R3).
One of the documents relied on was a statement by Constable Farhan Mazharullah filed on 5 December 2023 (exhibit R2). As Cst Mazharullah was required by the applicant for cross-examination, the contents of his statement should be outlined at this point. It begins by stating that he is a constable currently working as a general duties officer at Liverpool City Police Command and has held that role for about 2 years.
As a general duties officer, his role is to attend to incidents reported by members of the public that require police assistance. He regularly attends incidents involving suicide or self-harm or both and is experienced in identifying risk associated with those situations.
On 14 October 2022 at approximately 10:00 pm a task was broadcast through police radio regarding possible threats of self-harm. With Constable True he attended the applicant's residence in Chipping Norton, also in company with Constable Bartolo and Constable Meredith. When they arrived at the applicant's residence, the applicant's wife informed them that he had left the residence and entered bushland adjacent to the property while making threats of suicide, after the two had been arguing earlier that evening. The two officers entered the bushland to locate the applicant, while Csts Bartolo and Meredith remained with the applicant's wife to provide counsel and take a full account.
A short time later they located the applicant sitting in the dark near a lake. They engaged in conversation with him, in the course of which he said he was fearful of losing his family because of his wife repeatedly kicking him out. After some time, he agreed to accompany them back to their vehicle for the purposes of mental health treatment.
Cst Mazharullah conferred with Csts Bartolo and Meredith, who reported that the applicant and his wife were involved in a protracted verbal argument regarding infidelity and they had an unstable and turbulent relationship. The applicant had made several threats to kill himself, using words to the effect of "I'm done with life" and "I'm going to end at all". He engaged in conduct amounting to threats of self-harm, including holding a kitchen knife to his chest and attempting to affix a pipe to the exhaust system of his car.
[6]
Applicant's evidence and submissions
As the applicant had not filed a witness statement, he did not give oral evidence. In the course of the hearing he did, however, make certain representations of fact or opinion which, with the respondent's consent, I chose to treat as unsworn evidence.
He said that he had not done any shooting for 20 years and owned only one firearm, an ordinary side-by-side shotgun that he had inherited from his father and which was stored at his uncle Francesco's residence.
The applicant said that he did not consider that he represented a threat, including a threat to himself. He was a good person and had no record of violence. The events of the night of 14 October represented a one-off brought about because his wife was angry with him. It was a small mistake in his life and the respondent was seeking to "crucify" him over something small.
Many of the statements in the documents were not true. For example, his wife had known that he owned one gun. It was necessary to look at the nature of the person in question and he had no violent history.
The applicant had also emailed some documentary evidence to the respondent, who agreed to provide a copy of it to the tribunal to assist the applicant. The documents (exhibit A1) comprised three character references and a letter from Nick Grapsias, PhD, a psychologist, dated 6 July 2023. Their contents are outlined below.
[7]
Approach
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
[8]
Incident of 14 - 15 October 2022
The central matter relied on by the respondent in support of the revocation decision was the incident outlined above on 14 - 15 October 2022 in which the applicant had engaged in an argument with his wife, Mrs Roberta Malgioglio, after she caught him lying about having a second telephone (exhibit R1, pp 23 - 25, event report E91317152).
The argument continued for some time, Roberta accusing him of cheating again and lying. She told him that he was ejected from the house and was no longer allowed in the house and it was all over. The argument continued for a substantial amount of time before the applicant entered the kitchen, picked up a kitchen knife and held it against his chest, stating that he was done with life and wanted to end it all. Roberta managed to stop him from using the knife by pushing and slapping him.
Both parties then went outside and continued arguing about her finding the telephone that she had not been aware of. This continued for some time until the applicant entered his vehicle and picked up a pipe to attach to the exhaust system in an attempt to gas himself. Roberta had again prevented him from doing so.
After a further short argument, the applicant said he had had enough and it was time to end it all. He then headed into the bushland located near Chipping Norton Lake. Roberta, screaming and crying, frantically attempted to prevent him from entering the bushland, but was unable to stop him. At about 10:00 pm police attended the address before heading towards the bushland in an attempt to locate the applicant. After a short time they found him, sitting down in the dark near the lake. Police held a lengthy conversation with him before convincing him to head back to the police vehicle so he could be conveyed to Liverpool Hospital and treated pursuant to s 22 of the Mental Health Act. Police subsequently attended at the applicant's uncle's residence to collect his firearm or firearms.
A clinical specialist nurse assessed him at 2:40 am on 15 October to 2022 and reported that he had moved back into the family home six weeks previously, but his relationship with his wife had deteriorated. He had minimized the situation, the nurse observed. His wife had denied him access to the home but he had "fought his way in" and the couple then "got physical with each other". He reported that his wife wanted to sell the family house because it was in his name and she wanted to protect herself and buy her own place so she could know she had a place to stay. When he had arrived home on the 14th he had found all his clothes out the front of the house. He denied suicidal ideation and thoughts of self-harm and denied any homicidal ideation. He had no plan or intent.
[9]
The references
The applicant relied on a number of references (part exhibit A1), the first, dated 4 October 2023, being from Mr James Pollfrone, senior manager at Lo Surdo Braithwaite, who have been the applicant's accountants for over 20 years. He states that he has always known the applicant to be of good character and had never seen any behaviour to contradict that statement. He is a hard worker and to provide for his family he had embarked in a cleaning business in 2007, to supplement his work as a bus driver. He had been a bus driver for as long as he had been a client of the firm.
The applicant's son Antonio [aged 18] in an undated letter states that his father John had made many mistakes in his life. He himself had been affected by mental health issues nearly all his life and the mistakes his father had made recently came from a lack of judgment and mental health issues. Those mental health issues that his father struggles with had been hard to witness and he had been trying to help himself by attending therapy. When you take things away from those with mental health issues because of safety and lack of trust, you are punishing them when you must be rewarding them. Antonio believed now that his father is of sane mind and that he is coping very well. Those weapons were much more than weapons, they are family heirlooms, to take them away and destroy them would show a lack of understanding for family heirlooms and their significance. There are of great importance to his father, who deserves to be rewarded, as he is trying his best to be better every day.
Ms Kathy Memovic, centre director of Young Achievers LLC of Liverpool, wrote on 25 September 2023 that she has known the applicant for over 17 years. He is currently a subcontractor at Young Achievers as a caretaker. He is very reliable, honest and most professional in all his business and personal associations with Young Achievers Early Learning Centre.
In the community John is known as a loving husband and father to his children and as someone who is nurturing and offers assistance to friends and families.
[10]
The psychologist's letter
Nick Grapsias, PhD, psychologist of New View Psychology of Tullamarine, Victoria, provided a letter dated 6 July 2023 (part exhibit A1) in which he stated that he had been seeing the applicant for telehealth appointments at Moorebank Medical Centre. He had come to see Dr Grapsias for relationship issues and had explained that in the last year he and his wife had an altercation that resulted in his moving out of the family home and the police confiscating his firearms. The firearms were not on his property at the time but securely locked at a relative's home.
Since that incident he and his wife had been working on their relationship and John is now living back at home with the family. When he had been recently screening John for depression and anxiety using the Diagnostic Manual for Mental Disorders criteria, John had said he does not suffer from any depressive or anxious symptomatology and reported no self-harm or suicidal ideation, nor any threats to self or others. He said he is sleeping well, continuing with self-care and is happy to be back with his family. He did not report any intrusive thoughts, catastrophizing or any rumination. He had no past criminal convictions and reported no past history of violence.
Dr Graspias had recently spoken to the applicant's wife to see how she felt about John obtaining his firearms back. She was very supportive of his having his firearms returned and went further to explain that the firearms were very special family heirlooms from John's father and it would be a tragedy if they were to be destroyed. She stated that she felt safe with John having them back and reported no concerns. She also stated that the guns will be securely locked at a relative's home and reported that their relationship is now much better.
Dr Graspias wrote that he saw no reason why John could not have his firearms returned. He had not expressed any suicidal or aggressive behaviour and has no criminal record. He had also reported that he does not drink or take illicit drugs. He believes it would greatly improve John's mental well-being if he could resume his sport and hobby again. The applicant was currently continuing with his regular psychological appointments. Treatment to date had included CBT, ACT, Mindfulness and supportive counselling. He is always cooperative and pleasant-mannered in therapy.
[11]
Fit and proper person
The first ground on which the respondent contends that the revocation should be affirmed is that the applicant is no longer a fit and proper person to hold a firearms licence. Section 24(2)(c) creates a discretionary power to revoke a firearms licence "if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence".
The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
[12]
Public interest
The second ground on which the respondent relies is that it would be contrary to the public interest for the applicant to continue to hold a licence. The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
[13]
Evaluation
The respondent submitted that the applicant is a person who had made repeated threats of self-harm or suicide or both, against the background of an apparently tumultuous domestic relationship. On 15 October 2022, Mrs Malgioglio had reported to the assessor at Liverpool Hospital that she was concerned that he would threaten to end his life again. The applicant's risk of self-harm could not be seen as fanciful or theoretical, not only in view of the events of 14 October 2022, but also the applicant's history of impulsive behaviour, relationship problems and, in his son's words, "mental health issues". The applicant had not given a statement, nor had Mrs Malgioglio, though she had been consulted by Dr Graspias, who found that she was very supportive of his application and felt safe with the applicant having his firearms back, reporting no concerns. However, she had said that the guns would be securely locked at a relative's home and, it was submitted, her lack of concern could have depended on their being locked away in a different household.
The description in the letter was an incomplete history that left out the central event triggering the licence cancellation, the applicant's suicide attempt. Indeed, Dr Graspias stated that the applicant "reported no self-harm or suicidal ideation". The natural inference was that the applicant had failed to disclose the entirety of his history to the psychologist, nor had Dr Graspias been provided with the applicant's full medical or police history. It was thus not safe to rely on his opinion regarding whether the applicant posed a risk to himself or others.
The references from Ms Memovic and Mr Pollifrone suffered from the same defect, neither referee appearing to have been apprised of the events of 14 October 2022. Although each assesses his character favourably, neither does so in light of the conduct with which the present proceedings are primarily concerned. The respondent also pointed out that the applicant has an extensive history of traffic offences, starting from about four months after he qualified for his provisional driver's licence (exhibit R1, pp 12 - 17). His record has not improved of late, and on 25 August 2022 he failed to stop at a traffic light and on 15 February 2023 he exceeded the speed limit while driving a heavy vehicle.
One would not expect a person to have an unblemished traffic record after working for 34 years full-time as a bus driver and truck driver, but the applicant's record is unimpressive. It began in 1982 when he incurred a demerit points cancellation (one of three cancellations at various times) only four months after receiving his provisional license in November 1981, and it includes some 12 speeding infringements and a variety of other moving violations, including negligent driving, although nothing that appears to have involved causing personal injury. As was noted above, there has been no marked improvement in recent times and the record notes an offence of speeding while driving a coach or heavy vehicle in February 2023, disobeying a traffic light in August 2020 and a demerit points suspension in June 2017. Such a history may not rise to the level of in itself justifying licence revocation, but it does not assist the applicant's case on the public interest issue.
[14]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 December 2023
Parties
Applicant/Plaintiff:
Malgioglio
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
The officers formed the view that the applicant had made an attempt to kill himself and a mutual decision was made that there was sufficient evidence to detain him under s 22 of the Mental Health Act 2007 for the purposes of mental health assessment and treatment. Shortly afterwards they conveyed him to Liverpool Hospital, where Cst True filled out a form requesting that he be assessed by a medical officer.
The applicant's wife had reported behaviour of the applicant which caused Cst Mazharullah concern. In his opinion, the applicant did attempt suicide on that occasion. His mental health at the time was unpredictable, and moving forward he had doubts as to the applicant's holding firearms.
In oral evidence at the hearing Cst Mazharullah adopted his statement. By way of cross-examination, the applicant asked the witness on what basis he claimed to be able to judge the applicant's mental condition. The witness replied that he had found the applicant sitting in the dark by a lake and that the conversation described above had taken place. Further, he took into account the reports by Csts Bartolo and Meredith of their conversation with his wife. It was part of his role as a general duties officer to attend to incidents reported by members of the public, and he regularly attends incidents involving suicide or self-harm or both, and is experienced in identifying risks associated with such incidents.
There was no further cross-examination, and no re-examination.
Roberta said she had thrown him out of the house, and he "went nuts". She said he "goes psycho when angry" but denied that he was violent, but there was pushing and grabbing while he was trying to get into the house and he picked up the knife. Roberta slapped him to get him to pay attention. When he obtained the hose that he was attempting to plug into his exhaust pipe, she took the keys while he was uttering thoughts of ending his life. He entered another car but she got in the way and threatened to walk out. She had not seen the hose that he was planning to use. She had not known that he owned firearms, and was shocked by the news.
The interviewing nurse reported that he was engaging minimally with her, was not forthcoming and was minimizing the situation. He did not appear despairing or hopeless, and denied suicidal or self-harm ideation. The nurse gained the impression that his insight and judgment were poor and observed, perhaps somewhat ambiguously from a lay perspective, that "Resolved suicidality in context of escalating interpersonal stressors, on a likely background of Cluster B personality traits". There was no current evidence of such, or any evidence of pervasive mood disturbance. There was extensive safety planning conveyed and discussed, including the risks of harm to family and firearms use mitigated through liaison with police. The assessment concludes as follows:
Client currently does not express evidence of psychosis or pervasive mood disturbance, however is minimising events leading to admission. Client displays a cluster of b & c personality vulnerabilities, and has been a victim and perpetrated [sic] of DV, client to be seen by S/W for assistance with this. Current personality vulnerabilities not modifiable by MH admission. Currently not determinable under the MHA. Offered voluntary admission, however declined. Least restrictive care is for client to remain in the community with MH supports" (id., 25).
The assessment concluded that the risk of suicide, self-harm or violence was low at the time of assessment, as were vulnerability to harm from others and risk to children under 18. He was remorseful of his actions. He also denied previous suicidal ideations or thoughts of self-harm (id., 13).
The hospital's psychiatric registrar, Dr Ali Darwich, in his review of 15 October 2022 (exhibit R3, p 16) noted the background of separation from his wife for the last seven years, and an affair over the last three years. His wife had found out, causing further issues in the last six weeks. An argument about it escalated at home last night, with John being kicked out of the home by his wife. At that point, John reported feeling an immense amount of anxiety and stress, resulting in impulsive behaviour of obtaining a kitchen knife and threatening to harm himself, pointing it at his neck. His wife had slapped him at that point in an effort to re-orientate him. The incident was witnessed by his 17 year old daughter and possibly his 18 year old son.
John had then described going outside to "clear his head", walking to the park. His wife had assumed he was continuing to self-harm, and with concerns for his safety called police. He was remorseful of his actions and under ongoing stress as he had been informed that his wife intended to place an AVO against him. He confirmed that he is a licensed firearms user, with firearms locked in a safe at his nephew Joseph's home in Newington. When the matter was discussed with Joseph, he said he had no concerns for John's safety and was happy to look after him for the next two days.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
The applicant is a married man aged 58 with a son aged 18 and a daughter of 17. He has no record of non-traffic convictions and no history of violence or of threatening violence towards others, nor is there any history of drug or alcohol abuse. He has held firearms licences since 1989 with no suggestion of any firearms contraventions or of any improper or careless use or storage of firearms.
He has worked full-time as a government bus driver for 34 years and for 20 of those years also worked part-time as a truck driver. The position of bus driver, particularly, involves a certain degree of public trust and an expectation of safety-conscious behaviour. In that capacity he does not appear to have attracted adverse notice, although that is far from the case in relation to his private driving.
He is currently living harmoniously with his wife, though as a couple they may have had somewhat more than their share of marital ups and downs, including several years of separation They appear to be reconciled, however, and Mrs Malgioglio was very supportive of her husband at the hearing.
The central concern in these proceedings, however, is the events of 14 October 2022 when in the course of a protracted dispute with his wife he picked up a kitchen knife and held it to his chest or neck, saying he was done with life and wanted to end it all. Prevented from carrying out that threat by his wife's pushing and slapping, he went outside and obtained a hose to put into the exhaust system of his vehicle in an attempt to gas himself, but was again prevented from proceeding further by his wife.
He then said he had had enough and it was time to end it all for once, before proceeding into the bushland located near Chipping Norton Lake. Roberta tried frantically to prevent him from going into the bush, but being unsuccessful called for police assistance. The circumstances in which police found him sitting in the dark by a lake and persuaded him to accompany them to Liverpool Hospital for treatment have been outlined above. The attending police were in no doubt that there had been a suicide attempt and secured a s 22 admission accordingly.
The treatment notes by the psychiatric registrar, Dr Darwich and attending psychiatric nurses confirmed that there had been a threat with the knife and an attempt using the hose to gas himself, but observed that he denied suicidal or self-harm motivation and repeatedly commented on his tendency to minimize the seriousness of the events leading to his admission. The applicant himself does not deny the main material facts, and indeed at the hearing admitted their correctness, explaining that it was a "one-off" and arguing that he should not be "crucified" for a single "mistake".
As regards the threat to end it all with the kitchen knife, it may be noted that in the context of major domestic disputes such threats are not unknown. But they are usually just that, threats, motivated by feelings of hopelessness and consciously or unconsciously amounting to pleas for help or understanding. Proceeding to attach a hose to his vehicle's exhaust system with a view to gassing himself, however, is more purposeful and constitutes a recent actual attempt, which was interrupted by Roberta's seizing his keys.
Dr Graspias reported that he had been seeing the applicant in connexion with relationship issues and that he was currently continuing with his regular psychological appointments, with several different treatment strategies. His son Antonio's supportive letter (part exhibit A1) is quite forthcoming about his father's psychological problems. He states that his father's recent mistakes were made out of a lack of judgment and mental health issues. The mental health issues that his father struggles with "have been hard to witness and he has been trying to help himself by attending therapy". The applicant's willingness to take active steps to obtain help for his mental health problems can be viewed as being to his credit: Elley v Commissioner of Police, New South Wales Police Force [2023] NSWCATAP 237, [86].
On the evidence currently before the tribunal it would not be possible to predict confidently that the stresses of life would not result in some further self-harm attempt in the future. And Dr Graspias was clearly not briefed by the applicant with the facts of the 14 December 2022 episode.
In AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [22], Hennessy DP pointed out that "Not every suicide attempt will justify the revocation of the person's firearms licence. The Tribunal must assess the likelihood that AML will attempt suicide or self-harm again and, if that happens, the likelihood that a firearm will be used".
In view of the applicant's documented tendency to minimize the severity of the circumstances leading to his hospital admission on 14 October 2022, including his denial of any suicidal or self-harm ideation despite clear evidence to the contrary in his actions and statements at the time, the possibility of attempted self-harm in the future remains a real, and not a theoretical or fanciful, possibility.
The attempt on 14 October 2022 did not involve the intended use of a firearm, but if he had access to firearms that could be of concern. Recent fully informed expert evidence by a mental health professional on that specific point might help to allay those concerns, but there is at present insufficient evidence of that nature before the tribunal.
The applicant submits that his gun is a family heirloom and explained at the hearing that he has not fired a gun for 20 years. His wife argues that it would be a shame if his father's shotgun were destroyed. It is well established, however, that private interests cannot prevail over the public interest in the safe use and storage of firearms. Public safety is the paramount consideration in this context.
The totality of the evidence leads to the conclusion that while the applicant is a fit and proper person to hold a firearms licence, it would not at present be in the public interest for him to continue to do so, and I so find.