Martin v Commissioner of Police

Tribunal's approach

1. Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].

Evidence

1. The Applicant provided a statement dated 9 November 2020. He gave evidence and was cross examined. He was unrepresented at the hearing but his former solicitors had provided: 1. transcript of conversation between the Applicant and officer of the Firearms Registry on 18 May 2019; 2. email correspondence between the Applicant and Firearms Registry staff; 3. Local Court transcript of part of the hearing on 25 July 2019 and "Advice of Court Result''; 4. documents concerning the acquisition and disposal of various firearms; 5. affidavit of Matthew Phillip Fitzgerald, the Applicant's former solicitor dated 15 December 2021 annexing (minus duplications): 1. transcript of Local Court hearing dated 6 May 2021 2. Local Court judgment 3. Sentencing transcript 4. Exhibits tendered in Local Court 5. report of Dr Bruce Stevens, clinical psychologist, dated 5 November 2020.
2. Submissions were also provided by the Applicant's former representatives. The Applicant also provided his own submissions, upon which he elaborated at the hearing.
3. In addition to the documents (including a supplementary bundle) filed pursuant to s 58 of the ADR Act, the Respondent relied on the affidavit of Sergeant Gary Keevers dated 10 December 2020, which included the statement of Senior Constable Mark Schmidt, prepared for the Local Court prosecution. Sergeant Keevers, who also gave evidence in the Local Court, was not required for cross examination before me, notwithstanding that the Applicant challenged Sergeant Keevers' version of events.
4. The Respondent also relied on confidential material filed in relation to which I made Confidentiality Orders under s 64(1)(b) and (d) of the CAT Act. I also made Orders under s 49(2) of the Act as to the confidential part of the hearing.

What led to the revocation of the Applicant's licence?

1. On 8 May 2019, Police were called to the Applicant's house in response to an alleged domestic violence incident. Police issued an Interim AVO against the Applicant, but the matter was subsequently withdrawn.
2. As a result of the incident, the Applicant's licences were suspended. Licensing Police also came to the view that the Applicant was in possession of a defaced/altered firearm and had failed to comply with labelling requirements under the Act, and, also, that he failed to comply with a request by Police to attend an interview and provide copies of his dealership records. The Applicant was subsequently charged with 33 offences under various sections of the Act. Fifteen charges under s 36(1) of the Act were subsequently withdrawn. The outcome of the remaining charges is discussed below.
3. Before me the Respondent relied on aspects of the Applicant's conduct in relation to alleged contraventions of the Act: s 24(2)(b)(ii). It also relied on s 24(2)(b)(i) of the Act, contending that the Applicant supplied information in his licence application which he knew to be false or misleading in a material particular. More generally, it was submitted that it is not in the public interest for the Applicant to hold the licences: s 24(2)(d) of the Act and cl 20 of the Regulation.

Alleged contraventions of the Act: s 24(2)(b)(ii), s 45(6), s 47(1) and s 66(1) of the Act

1. Section 24(2)(b)(ii) of the Act provides that a licence may be revoked if the licensee contravenes any provision of the Act or the Regulation, whether or not the licensee has been convicted of an offence for the contravention. The Respondent relied on the Applicant's conduct in respect of s 45(6), s 47(1) and s 66(1) of the Act.
2. I observe that the two charges under s 45(6) of the Act were not proven to the criminal standard and the Applicant was found not guilty. All charges in respect of s 47(1) of the Act were found proven but the charges were dismissed and no conviction was recorded: s 10 of the Crimes (Sentencing Procedures) Act 1999. The Applicant said in his evidence before me that he had intended to appeal against the Local Court decision (although it would appear he now be out of time to do so). As to the charge under s 66(1) of the Act, the Applicant was found not guilty. Nonetheless, the Tribunal is to take into account matters indicating criminal conduct even though the particular offences were not charged or, as here, have not been proven or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 (Joseph CA) at [62] - [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70.
3. As previously discussed, the standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities and there is no onus of proof. The task before me was to consider if I could be satisfied, on the balance of probabilities, as to the Applicant's alleged conduct.
4. In applying s 24(2)(b)(ii) of the Act, the Tribunal said in Lynch v the Commissioner of Police [2002] NSWADTAP 43 at [47] 47. [the fact that an individual] escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable. When considering evidence of criminal conduct, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

Alleged failure to comply with demand made by a police officer: ss 45(6)(a) and (c) of the Act

1. There was no dispute that the Applicant, as a firearms dealer, was obliged to keep certain records. Those records include a Register of Acquisition and Disposals of Firearms (PAB 28) and a Dealer's Advice Book - Standard Transactions Notice of Acquisition or Disposal of a Firearm or Spare Barrel (PAB 31). Subsections 45(6)(a) and (c) of the Act provide, to the effect, that a firearms dealer, must, on demand made by a police officer at any time produce the record to the officer who may inspect and make copies of any entries in it, and to furnish to the officer any information in the dealer's possession with respect to any firearm or firearm part that has been manufactured, acquired or received under the authority of his dealer's licence, or that the dealer has in his possession or has supplied or otherwise transferred or repaired under the authority of the licence. The Respondent alleged the Applicant failed to produce the records required to be kept under s 45 of the Act, in particular his PAB 28 and PAB 31 Registers, and to furnish information to Sergeant Keevers that was in his possession with respect the firearms that were acquired or received under the authority of his firearms dealers licence.
2. Sergeant Keevers' evidence was that on 16 May 2019 he contacted the Applicant by telephone and had "required" his attendance at Lake Illawarra Police station the following morning with his PAB 28 and PAB 31 Registers and any evidence he had in relation to the fifteen firearms which, at that time, appeared to be unregistered. As one of the firearms appeared to have been defaced, he informed the Applicant that that was a serious matter for which the penalty was up to 14 years imprisonment. He said they agreed to meet at 9.00 am the following day. The Applicant did not attend the Police Station as arranged nor did he contact Sergeant Keevers to explain why he did not attend.
3. The Applicant denied that there was an arrangement for him to attend at 9.00 am on 17 May 2019. He did not dispute that he was told he was going to be called in by Sergeant Keevers, but denied that there was a "direction" to attend on 17 May at 9.00 am.
4. Sometime after that date, Sergeant Keevers received correspondence from the Applicant's then solicitors dated 16 May 2019 to the effect that the Applicant had been advised "not to engage in any interview with, or talk to Police". The Applicant said in his evidence that he spoke to the solicitor on 16 May 2019, the date of the letter, which included an addendum made after he had spoken with Sergeant Keevers. He said the letter was the solicitor's suggestion and he recalled receiving a draft which he approved.
5. Before the Magistrate and before me the Applicant's evidence was that he was not directed to attend the Police Station and provide information. He admitted that Sergeant Keevers requested that he gather all documents together as soon as he was able to get them. He said if he has been called in then he would have attended. However, he said in cross examination before me that the intention was that his solicitor would attend.
6. The Applicant said that following the telephone conversation with Sergeant Keevers, he did not receive any further contact from him. In his evidence he said he waited for Sergeant Keevers to contact him, as he had expected Sergeant Keevers to contact him or his solicitor. He submitted that if Sergeant Keevers had in fact directed him to attend the Police station the next day, why would Sergeant Keevers not have called or emailed him to follow up or make a further direction to attend. By the time he was able to gather his documents together - about one week after Sergeant Keevers' request - he had lodged a complaint about Sergeant Keevers. He said he heard nothing of an alleged direction to attend and provide information until the charges were laid in June 2019.
7. The Applicant referred to the transcript of a telephone conversation with an officer from the firearms registry dated 18 May 2019. There he said he had received a phone call from Sergeant Keevers in which he was told about the potential 14 year penalty. He was referred in cross examination to his statement noted in the transcript that: …it's quite concerning when [Sergeant Keevers] called me and said "I'm going to call you in and put questions to you that you're in possession of unregistered firearms, that carries an offence (sic) of 14 years in prison…"
8. The Applicant was recorded as saying he had already sent in all the information he was required to provide but that he had told Sergeant Keevers he would photocopy "this evening" every PAB 31 and all the postal receipts for information he had already supplied to the Firearms Registry. He was recorded as saying he would "get everything to [Sergeant Keevers]". In cross examination he did not recall saying "this evening" and noted that there were several entries in the transcript where the recorded dialogue was noted as "indistinct", and suggested the transcript was in error in referring to "this evening". In my view, this explanation is implausible.
9. Before me, the Applicant provided new evidence that Sergeant Keevers knew that, following the domestic violence incident on 8 May 2020 between the Applicant and his wife, the Applicant was staying at a hotel for about a week, and consequently would not be in a position to access his firearms documents which were at the house. He said that while he may have said he would photocopy everything, he denied that, because of accessibility problems, that he had said that he would do so "this evening". There was no evidence though that he been denied access to the home. In fact, the Applicant had readily accessed the home on 9 May 2019, after he had gone to the hotel, in order to remove the firearms, and there was no evidence that the access arrangements had changed.
10. Before the Magistrate, the offences were not established to the criminal standard and the Applicant was found not guilty of the charges. However, the Magistrate made a number of observations in his judgement, which, he said, cast significant doubt on the Applicant's evidence regarding this charge. For example: At [40], it was noted that: It is interesting to note that the accused, in his evidence in chief, explained that in the telephone conversation he had with Keevers on 15 (sic) May 2019 he did not understand that he was directed to do anything. However, under cross-examination, he volunteers that Keevers, in that same conversation, had asked him to gather together his records which he told the court he was unable to do until sometime around 20 or 21 May 2019 and then (not having heard further from Keevers) proceeded to scan and email the relevant records to the Firearms Registry after speaking to someone from the registry. His answer to the first question given in his evidence in chief that he was not directed to do anything does not sit comfortably with the evidence he gave to the court under cross-examination about the same conversation in which he was directed to gather together his records in anticipation of a forthcoming investigation. At [42], his Honour stated: It is somewhat mystifying that the accused would compile all of his records as he had been requested to do, only to then scan and email the material to the firearms registry without informing Keevers that those records were now ready for inspection in circumstances where, on his own evidence, he had already provided that information to the registry as required by the Act. At [47], it was noted that: It seems improbable and indeed unlikely that Keevers would not have sought to have the accused produce his records, particularly in circumstances where he had formed the view that a number of those weapons were unregistered.
11. The issue for me was whether I am satisfied on the balance of probabilities if Sergeant Keevers made a demand that the Applicant produce the records for inspection, and whether the Applicant failed to comply with that demand. As noted at [21] above, I am to take into account the Applicant's conduct even though the charges have not been proven.
12. It appears that the Applicant's telephone conversation with Sergeant Keevers is likely to have precipitated the Applicant's addendum to his solicitor's letter to various Police officers and the advice to the Applicant not to engage with Police. The Applicant's evidence before me was that the solicitor would attend, which suggests to me, that there was, at least by the time the solicitor's letter was sent to Police on 16 May 2019, there had already been a demand to attend. While the Applicant approved the solicitor's letter, there was no evidence that he followed up whether his solicitor had attended as he planned, nor, on his evidence, that he had himself followed up with Police, in circumstances where he conceded he had been directed to gather his material.
13. In relation to his submission that Sergeant Keevers had not followed up with him, that is perhaps unsurprising, as, on the Applicant's account, he had left the matter in his solicitor's hands, and Police had been informed to that effect. Moreover, by that time he had lodged a complaint against Sergeant Keevers, so it might not be unusual that he received no further contact from Sergeant Keevers.
14. Like the Magistrate, I also had some reservations about the Applicant's account. His evidence was that while he did not understand that he was directed to do anything, he conceded that he had been asked him to gather together his records, which he said he did, notwithstanding that he claimed he had already provided the information. Apparently, he did not inform Sergeant Keevers that he was doing so. It also seems improbable that Sergeant Keevers, having formed the view that a number of the firearms held by the Applicant were unregistered, would not have sought to have the Applicant produce his records. Further, it seems improbable that the Applicant would have been asked only to "gather" the material, without the concomitant obligation of producing them; merely gathering the material would not serve to aid Police in relation to the information sought.
15. I therefore find, on the balance of probabilities, that the Applicant failed to produce his records in accordance with Sergeant Keevers' demand, in contravention of ss 45(6)(a) and (c) of the Act.

Failure to affix proper labels: s 47(1) of the Act

1. The Applicant was charged with 15 offences under s 47(1) of the Act. That section provides that licenced firearms dealers must affix and keep affixed to each firearm in the dealer's possession (other than for the purposes of maintenance or repair) a label showing the entry number for that firearm as entered in the record required to be kept under Part 5 and the identifying number (if any) of that firearm. This means that the label should show: an entry number for the firearm in the Applicant's PAB 28 Register; and the serial number for the firearm. All charges were proven.
2. Recently, in Fisher v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 320 at [53] Emeritus Professor Walker SM said: 53. The general rule in such cases is indeed that the finding of a court cannot be challenged before the tribunal other than in exceptional circumstances. Nevertheless, an applicant may present to the tribunal matters pertaining to a conviction or finding of guilt, provided that they do not contradict the facts that had to be found in arriving at such a finding: Lahood v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 18, [73] - [75].
3. Therefore, I turned to consider if there were "exceptional circumstances" such that I should go behind the Magistrate's findings.
4. The evidence of Sergeant Keevers was that on 14 May 2019 he had attended the firearms dealership to which the Applicant had surrendered his firearms, in response to concerns raised by the dealer that the firearms were unregistered. On inspecting the firearms, Sergeant Keevers noticed that none of them had a label affixed showing the entry number of each firearm in the Applicant's PAB Register or any details of the serial number, and they only appeared to have a reference to the Applicant's PAB 31 book. Two of the firearms did not have any attached label. Images of the labels when inspected were annexed to the statement of Senior Constable Schmidt, which had been prepared for the Local Court prosecution, and which itself was annexed to Sergeant Keevers statement.
5. The Applicant provided a photocopy of fifteen tags, which he claimed had been affixed to his firearms. Notably, these tags do not have an entry number for the Applicant's PAB 28 Register, only his PAB 31 Register, and therefore do not comply with s 47(1) of the Act. It is also unclear why such tags would have been attached in addition to the tags which were located by the firearms dealer and Sergeant Keevers. The Applicant denied that the claimed original labels were in fact brought into existence by him simply for the purpose of defending the charges and that they had not originally been affixed to the weapons as he had adduced in his evidence in chief.
6. The Magistrate reviewed the evidence and found that the firearms which were the subject of the charges were acquired by the Applicant as a firearms dealer from other licenced dealers between February and April 2019. The firearms were required to be labelled with information specified under the legislation which the Applicant said he carried out. The Applicant's evidence was that after his licence was suspended and before he surrendered the firearms to the other dealer, he removed the labels which were, "extremely detailed" because he "had some concerns at the time" that the labels that were on the firearms "would either be destroyed or misplaced". The purported originals, the Magistrate found, seemed new and pristine. The Applicant had said that he replaced them with "simple tags'' bearing only the "corresponding entry number to the logbook" in order to facilitate "the transition to" the dealer. They all appeared, the Magistrate observed, to be written in the same handwriting and with the same pen compared to the replacement tags which appeared somewhat aged, soiled and frayed at the edges.
7. The Magistrate found that the Applicant failed to keep labels on his firearms as required by the Act. In making that finding, the Magistrate observed at [65]: I am troubled by and have difficulty accepting the evidence adduced by the accused on this issue. He seems to have, on his own evidence, removed the complying tags or labels on 9 May 2019, photographed them and then kept them. He replaced them with non-complying labels because of his concern or fear that they would be lost or misplaced notwithstanding that those weapons were being surrendered to a licensed firearms dealer. The reasons proffered by the accused to explain his actions are, with great respect, simply not credible or plausible in my view and stretch credulity. Accordingly, I reject that evidence.
8. Before me the Applicant repeated his contentions. Those facts have been determined by the Magistrate in finding the offences proven; I do not find there to be "exceptional circumstances" such that I should go behind the Magistrate's decision. I therefore find, on the balance of probabilities, that the Applicant contravened s 47(1) of the Act.

Possess defaced firearm: s 66(1) of the Act

1. Section 66(1)(b) of the Act provides that a person must not, unless authorised by the Commissioner to do so, use, supply, acquire or possess a defaced firearm or give possession of a defaced firearm to another person. It is a defence to such as charge if the defendant proves that he did not know, and could not reasonably be expected to have known, that the firearm was a defaced firearm.
2. The Magistrate found that the serial number of a Bentley shotgun had been defaced, but, notwithstanding his reservations about the Applicant's credit, considered the prosecution had not discharged its onus that the lack of knowledge on the part of the accused was unreasonable.
3. From the judgment, in summary, the Applicant's evidence was that the subject firearm was the first Bentley he had acquired and that prior to the acquisition, he was unfamiliar with Bentley shotguns. The Magistrate found, at [83], this evidence difficult to reconcile with the Applicant's chronological handwritten records of his purchases - the Applicant had in fact purchased 3 previous Bentleys. The Applicant's evidence was that he was unfamiliar with weapons of this kind. As the Magistrate observed though, at [86], he had already purchased Bentley shotguns in the months preceding this acquisition, and this did not assist the Applicant's credit.
4. The Applicant gave evidence before the Magistrate that the Bentley arrived by post with one or two other firearms from a Queensland dealer. In fact, it appears that he purchased four Bentley shotguns which arrived simultaneously.
5. The Respondent submitted that, just as it was readily apparent to Sergeant Keevers on an initial inspection of the firearm that it appeared to have been defaced, the Tribunal should be satisfied that the Applicant, as a firearms dealer (who is expected to check serial numbers of firearms when they are acquired), also could be expected to have known that the firearm had been defaced.
6. Before me the Applicant said that when he received the Bentley it was battered and "covered in scratches", and he merely copied the serial number from the information he obtained from the Queensland dealer. He said it did not appear to be intentionally defaced. He said that, if he had thought it was defaced he would have taken it to the Police, rather than proceed to register it. The Applicant's evidence was that he observed a five digit serial number when he inspected the Bentley but otherwise had no reason to believe that the serial number had been defaced. Although he acquired further weapons of the same type, he had not noticed anything different about the serial numbers. The evidence of a firearms' analyst from Australian Criminal Intelligence Commission was that the serial numbers on weapons of this type all bear 6 digits and some have an "A" prefix. The Magistrate observed at [84] that the serial number in all but two of 6 Bentley shotguns the Applicant purchased contained 6 digits and begin with the "A" prefix. That indicates to me that there was no complete uniformity in the way the Bentleys which the Applicant held were numbered; that is, it cannot be said that all the Bentleys, except for the one in question, were consistently marked. The Applicant was issued with his dealer licence on 16 February 2019, that is, only 3 months before his firearms were seized. The Applicant's reliance on the Queensland dealer's record suggests to me that he either did not check the firearm number or was unaware of the usual identification protocol for that type of firearm. That he merely relied on the Queensland dealer's record or failed to check the number himself suggests a degree of careless in his record-keeping inconsistent with his strenuous assertion before the Magistrate that he meticulously kept his records in conformity with the legislation: at [85]. However, I cannot be satisfied on the balance of probabilities that the Applicant knowingly possessed a defaced firearm.

Conclusion in relation to s 24(2)(b)(ii) of the Act

1. The Respondent submitted that in light of the Applicant's contraventions of the Act, that the Tribunal should exercise the discretion in s 24(2)(b)(ii) and affirm the decision of the Respondent to revoke the Applicant's licences.
2. The Appeal Panel held in Commissioner of Police v Joseph [2016] NSWCATAP124 (Joseph AP) at [53] that firearms dealers provide the only lawful conduit for the passage of weapons to ordinary members of the community, and that they must carry out their responsibilities with scrupulousness, and strictly observe the manifold business requirements to which they are subject. The Applicant has not done so.

False statement in application: ss 24(2)(b)(i) and 70 of the Act

1. Section 24(2)(b)(i) of the Act provides that a licence may be revoked if the licensee supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence. Further, s 70 of the Act imposes severe penalties on a person who, in connection with an application for a firearms licence, makes a statement or provides information that the person knows is false or misleading in a material particular.
2. On 16 July 2010, when the Applicant applied for a personal firearms licence, he answered "no" to the personal history question in the application: Have you ever attempted suicide or self-harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness? (Tribunal emphasis)
3. On 27 September 2011, a decision was made by the Administrative Appeals Tribunal (AAT) to refuse the Applicant's claim for compensation relating to an anxiety condition arising out of his employment: Martin and Comcare [2011] AATA 664. The decision records that the Applicant's claim was made in March 2009 and that a further claim for aggravation of the condition was made in September 2009.
4. The AAT decision records that the Applicant was examined for medico-legal assessment of the claimed condition in the 12 months preceding his application dated 16 July 2010 - on 12 June 2009 by consultant psychiatrist, Dr Anne-Marie Rees, and on 13 November 2009 by consultant psychiatrist, Dr Michael Robertson. (Later medico-legal psychiatric reports were conducted for the purposes of the AAT hearing by Dr Inglis Synnott on 11 October 2010 and Dr Christopher Canaris on 13 May and 16 May 2011.) The Applicant submitted that assessment by the four (sic) psychiatrists, as part of his claim for compensation for an anxiety illness, did not need to be disclosed on his firearms licence application.
5. The AAT decision recorded that the Applicant had sought medical attention for his anxiety condition from his doctor on 12 March 2009, which was the day after he left work following an incident at work in December 2008 that gave rise to his first claim (the first incident). His evidence before the AAT was that, at the time he went off work, he was suffering from an anxiety condition, he was feeling distressed and was suffering from sleeplessness and headaches, and had a feeling of tightness in the chest and had trouble breathing. He later learnt that these were symptoms of panic attacks which were occurring approximately once a week for about 10 minutes. He took considerable time off work and sought workers compensation. In January 2010 Comcare accepted that he suffered an anxiety condition but denied liability. In September 2009 a second claim was lodged with respect to an incident in July 2009 (the second incident), in which he claimed aggravation of his anxiety condition. Comcare accepted that he suffered an aggravation of his psychological condition but denied liability.
6. The AAT recorded that Dr Rees, who examined the Applicant at Comcare's request on or about 12 June 2009, reported in relation to the Applicant's then current problems, that the Applicant said his sleep was still very poor and he was awake until 3.00am. He reportedly told Dr Rees that he felt depressed and anxious and his appetite was poor and he was continuing to lose weight. He reportedly told her he was unmotivated and not enjoying life as usual and was irritable and angry, and arguing with more with his wife. Dr Rees concluded that the Applicant was suffering from an adjustment disorder with anxious and depressed mood which included panic attacks, for which, at the time of her report, he had not received any reasonable medical treatment. The AAT observed that based on the history the Applicant gave Dr Rees in June 2009, she thought he was still suffering significant symptoms at that time.
7. The Applicant was recorded as having given evidence that immediately after the second incident in July 2009 he experienced an almost instantaneous recurrence of his symptoms; his panic attacks resumed but, whereas previously they occurred two or three times a week and lasted for 10 to 20 minutes, now there were a few occasions when they lasted several hours. The panic attacks gradually abated and reached a point by late 2009 where they were no longer significant. His evidence was that he had trouble sleeping about 80 per cent of the time. He had headaches, loss of appetite and decreased mood, and did not want to do anything that he would normally do.
8. On 8 September 2009 the Applicant had consulted his general practitioner, Dr Paul Lumbewe, who recommended he see a psychologist or psychiatrist. The Applicant gave evidence that he did not see a psychologist or psychiatrist because he could not afford the cost. There was no evidence before me that Dr Lumbewe actually referred the Applicant to a psychologist or psychiatrist. The Applicant's evidence before the AAT was that Dr Lumbewe prescribed medication to help him sleep but, he said, he only took it for approximately seven days.
9. Dr Robertson, in his report of 17 November 2009, recorded that the Applicant had told him that his panic attacks subsided in June 2009, but worsened after the second incident; and that by August 2009 he had begun to experience episodes of tearfulness and tremulousness, which appeared to correlate with worsening of his panic symptoms. Dr Robertson diagnosed the Applicant as suffering from an adjustment disorder with anxious and depressed mood.
10. Dr Synnott saw the Applicant on 11 October 2010 at Comcare's request. He was of the view that, at the time the Applicant went off work in March 2009, that the Applicant met the diagnostic criteria for an adjustment disorder but that by July 2009 it was at least in partial remission. Dr Synnott noted that the Applicant had not had any specific treatment for his psychological symptoms since early 2009, but the AAT did not record to what treatment the doctor referred. In any event, "in early 2009" would be outside the period to which the question related. Clearly, Dr Synott did not regard the prescription of sleeping tablets by Dr Lumbewe to amount to "treatment" for the Applicant's mental illness.
11. Dr Canaris, saw the Applicant in May 2011 at the request of the Applicant's then solicitors. Dr Canaris gave oral evidence that the fact that the Applicant had his last panic attack several weeks before the second incident, and then his next panic attack the following day, suggested "a significant causal relationship". The Applicant reportedly told Dr Canaris that his symptoms had not abated by the time of the second incident and that he "certainly did not think he had recovered" by that time. The doctor considered that there was "some evidence of aggravation" in the sense of some delay in the Applicant's recovery. Dr Canaris observed that the Applicant had delayed in seeing his doctor following the second incident but thought that could be explained by the stigma attached to mental health treatment as well as the culture in the military and police. He also suggested that the Applicant may have been reluctant to go out because he was suffering ongoing symptoms.
12. The AAT found that the Applicant's oral evidence that his panic attacks had all but subsided by the end of 2009 to be at odds with the history taken by Dr Robertson that, in November 2009, he was still experiencing panic attacks two to three times a week. Before me the Applicant said he thought he had had only one panic attack, which is clearly at odds with the history taken by the various consultant psychiatrists and his evidence before the AAT.
13. Dr Bruce Stevens examined the Applicant on November 2020. He made a diagnosis of Adjustment Disorder with mixed anxiety and depressed mood (in full remission). In coming to that view, it appears that Dr Stevens relied, in relation to the Applicant's psychological history, on the medical evidence referred to in the AAT's decision. There was no contention by the Respondent that the Applicant currently suffers any mental illness.
14. In his statement dated 9 November 2020 the Applicant wrote that in answering "no" to the question he believed that answer to be true as, at no time, did he receive any treatment, nor had he been referred to any doctor, for an anxiety illness, adjustment disorder, anxiety, depression or panic attacks, or for any mental disorder or illness in the 12 months before the application.
15. The Respondent contended that the Applicant's circumstances clearly fall within the ambit of having been "treated or referred for a mental or nervous disorder or illness" and would be a matter that needed to be disclosed in his application. In particular, the Respondent contended that the Applicant had been "referred for a mental illness" in the 12 months preceding his firearms application because, as part of the assessment of his condition in relation to his claim against Comcare he had been referred to a number of psychiatrists. I observe that the "referrals" upon which the Respondent relied were made in the context of the Applicant's Comcare claim and were clearly for medico-legal purposes. I do not consider that these are the types of "referrals" to which the question relates. Instead, "referral" in that context, in my view, concerns circumstances where a person has been referred by his GP or some other person for specialist psychiatric or psychological intervention. If it were otherwise, any contention of mental illness, which is referred for medico-legal opinion in the workers compensation context, would attract an obligation to report, no matter how spurious the claimed condition and irrespective of whether a diagnosis was made of a mental health condition.
16. Having said that though, the Applicant's condition was significant enough for him to make a claim for compensation arising out the first incident in December 2008 and a claim for aggravation arising out of the second incident in July 2009. After the second incident he continued to experience panic attacks at least until towards the end of the year. He experienced some sleeplessness, for which he had been prescribed medication although he had only taken it for a week. I do not consider the prescription of sleeping tablets, taken for one week, to amount to "treatment" for his mental health condition. I observe that this view is in accordance with the recorded evidence of Dr Synott before the AAT.
17. The Applicant's answer in July 2010 was, to the day, 12 months after he claimed to have experienced an almost instantaneous recurrence of his symptoms with panic attacks two or three times a week, and lasting several hours. Although the panic attacks gradually abated and reached a point by late 2009 and were no longer significant, it remains that the Applicant suffered them well within the 12 months of the application.
18. The Respondent submitted that the Applicant's answer was a clear attempt to circumvent what is a reasonably clear question that seeks to ascertain whether a potential applicant has any mental health issues that need to be disclosed and assessed as part of their suitability to obtain a firearms licence. While I agree that that may have been the intention of the question, the submission overlooks the precise question which was posed; it does not ask if an applicant has been diagnosed with a mental illness. A positive response is only required if an applicant has been referred or received treatment for their mental illness. In this matter there was no evidence that the Applicant was in fact referred for assistance in relation to his mental condition, nor that he received treatment, in the relevant period.
19. The Applicant took offence, he said, at the Respondent claiming that he had suffered a mental illness. His concerns, however, are clearly misplaced, because all the psychiatric evidence before the AAT was to the effect that in 2009 he suffered an anxiety condition. Furthermore, his contention that he suffered a (work-related) psychiatric condition and aggravation of that condition was the very subject of his contention before the AAT. He clearly cannot have it both ways. The Applicant said that as part of his previous training he knew what a "mental illness" was, as defined by the Mental Health Act 2007. I observe that the definition, relevantly, refers to a condition that seriously impairs temporarily the mental functioning of a person and is characterised by the presence in the person symptoms including a severe disturbance of mood, which, in my view, would include the panic attacks which the Applicant told all the psychiatrists that he suffered, and were detailed in his Comcare claim brought under the Safety, Rehabilitation and Compensation Act 1988 as a mental ailment.
20. The Applicant did not contend that his response was an accident or unintentional mistake. The Respondent submitted that the Tribunal should be satisfied that the Applicant supplied information which was to his knowledge false or misleading in a material particular. For the reasons discussed above I do not consider this to be the case, having regard to the precise question asked. I make no comment as to whether the Applicant took advantage of the poorly worded question to avoid disclosing his diagnosed mental illness.

Conclusion in relation to breaches of the Act

1. I have found that the Applicant breached s 45(6)(a) and (c) of the Act and s 47(1) of the Act.
2. In Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 Hennessey DP said that if the breaches of the Act or Regulation are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety, which is a fundamental objective of the Act. In Bevan v Commissioner of Police [2004] NSWADT 1, the Tribunal stated at [26]: ... Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety (see s3(1)(a) of the Act). (Tribunal's emphasis)
3. The Applicant's contraventions in the present matter are not merely "technical"; the Act sets out clear obligations and the Applicant has failed to comply with those obligations. His failure to comply cannot be disregarded as an oversight. The Applicant's contraventions of the Act cannot be considered as merely technical, as they relate to fundamental obligations of dealers. Although the Applicant had only been a firearms dealer for three months prior to his licence suspension, ignorance of the requirements of the Act is no excuse.

Public interest: ss24(2)(d) 30(4) of the Act and cls 20 and 21(1)(a) of the Regulation

1. Section 24(2)(d) of the Act provides that a licence may be revoked for any reason prescribed by the Regulation. Similarly, s 30(4)(b) of the Act states that a permit may be revoked by the Commissioner for such other reasons as may be prescribed by the Regulation. Clause 20 of the Regulation 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, as does cl 21(1)(a) of the Regulation with respect to a permit.
2. The expression "public interest" is not defined in the Act. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. The public interest "is an inherently broad concept" which permits reference "to a wide range of factors" in making the decision: Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25].
3. The discretion to make a decision in the public interest is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23]. The underlying principles stated in s 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. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
4. I observe that the Applicant has no criminal record, other than in relation to the identified breaches of the Act. The "public interest" factor, however, allows a consideration of issues going beyond the character of an applicant to be taken into account; public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
5. The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [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. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
6. The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
7. The Applicant wishes to continue operating as a firearms dealer; he must have a personal firearms licence in order to so. Private interests however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. They include 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 at [33].
8. [NOT FOR PUBLICATION]
9. In cross examination the Applicant acknowledged that following the suspension of his firearms dealers licence he was not permitted to acquire or sell firearms. He said he could still sell some "accessories" and conceded that he had continued to sell stocks, scopes and slings, as well muzzle brakes. A "firearm part" is defined in the Act as a barrel, breech, pistol slide, frame, receiver, cylinder, trigger mechanism, operating mechanism or magazine designed as, or reasonably capable of forming, part of a firearm. The Applicant submitted that anything that does not relate to the functioning of a firearm is not a "part". The Applicant's contention overlooked that the breadth of the definition which includes an operating mechanism reasonably capable of forming part of a firearm. I am satisfied that a muzzle brake, at least, is an operating mechanism reasonably capable of forming part of a firearm, and hence the Applicant was prohibited from selling that part while suspended: s 43 of the Act.
10. [NOT FOR PUBLICATION]

Allegations of domestic violence

1. The Respondent also relied on allegations of domestic violence between the Applicant and his wife. These matters have been untested, and I have therefore not taken them into account.

The "Bunnings incident"

1. On 11 August 2021 the Applicant came to the attention of Police, for allegedly failing to comply with Public Health Orders whilst at Kembla Grange Bunnings, and he has been charged with offences. The Applicant has elected to defend the charges against him and these are to be heard in March 2022. Rather than delay this matter further, I informed the parties that, at this stage, I would have no regard to the allegations against the Applicant arising from the Bunnings incident, and, and would only consider those matters if I was unable to reach a conclusion without reference to that matter, in which case the parties would be invited to make further submissions. I have decided that I am able to reach a decision in this matter, which would not be altered even if the charges relating to the Bunnings incident were resolved in the Applicant's favour.

Conclusion

1. The public interest requires that licensees be aware of, and comply with, the legislative requirements for holding a licence: Vella v Commissioner of Police, New South Wales Police Service [2003] NSWADT 91 at [4], and Cook v Commissioner of Police [2003] NSWADT 30 at [34]. Responsibilities of licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25]. See also Todorovski v Commissioner of Police [2019] NSWCATAD 192 at [130].
2. The Appeal Panel in Joseph AP at [32] the Appeal Panel accepted that a firearms dealer sits at the "apex" of the regulatory system, and plays a central role in the orderly and lawful circulation of firearms in the community. It also observed at [53]-[54] that: In our view, and as reflected in the detail of the firearms law, the public has a high interest in ensuring that firearms dealers licences only be granted to persons in whom trust and confidence can be placed in relation to a range of matters. Those matters include: their business competence, their ability to implement complex standards in relation to such matters as security of weapons, record keeping and reporting to authorities, and their capacity, where necessary to deal appropriately and confidentially with those authorities, in particular the police.
3. The Appeal Panel in Masterson v Commissioner of Police [2017] NSWCATAP 206 stated at [133]: In our view, the possibility that the holder of a licence may not comply with the law is a relevant matter in exercising a discretion to revoke a licence on public interest ground...the test is very wide and in matters of public safety and the possession and use of firearms, it could hardly be suggested to the contrary.
4. I have found that the Applicant has contravened s 45(6) and s 47(1) of the Act, and probably also, s 43 of the Act; his conduct in relation to compliance creates concerns for his ability to operate as a firearms dealer. Further, full cooperation with the Firearms Registry and Licensing Police is necessary in ensuring the effectiveness of the firearms licensing and registration regime and I consider the general public could not be confident that the Applicant would in the future so engage if any discrepancies or issues were detected. I do not consider the Applicant has demonstrated that he has not been frank in his dealings with Police, or in his evidence before the Local Court in relation to the offences, or before me. The Magistrate made several observations in relation to the Applicant's evidence to the effect that his evidence lacked credibility. I too have expressed my reservations about the Applicant's evidence and I also have reservations about his candour. The Applicant has not at any time accepted responsibility for his conduct, nor expressed remorse for his behaviour.
5. In light of the Applicant's contraventions of the Act, his conduct and attitude in response to Police investigations, his sale of firearms parts while suspended and the findings I have made with respect to the confidential material, I cannot be satisfied that, at this time, there is virtually no risk in the Applicant holding his licences.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 02 March 2022