Matus v Commissioner of Police

Relevant legislation

1. The general principles are set out in section 3 of the Act, relevantly: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and … (2) The objects of this Act are as follows: … (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,
2. 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.
3. Section 63 of the Administrative Decisions Review Act 1997 (NSW)("the ADR Act") provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
4. The hearing is a hearing "de novo" - meaning that the Tribunal may consider the matter from the start including taking into account fresh evidence brought by either party. The Tribunal is not restricted to the consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. There is no presumption that the Respondent's decision is correct.
5. Section 11 of the Act provides for restrictions on the issue of licences: 11 General restrictions on issue of licences … (3) A licence must not be issued unless: (a) 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, and … (4) Without limiting the generality of subsection (3)(a), 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: (a) the applicant's way of living or domestic circumstances, or (b) ...
6. The term "reasonable cause to believe" in this context was considered by the Tribunal in the matter of LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at paragraphs [41] - [43]: 41 The term "reasonable cause to believe" has been considered by the courts in contexts other than those the subject of this application. For example, in the context of discovery under Order 15A, Rule 6 of the Federal Court Rules, in Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013, BC 200305547, Emmett J stated: "[10] There is no dispute as to the nature of the task that arises under r6(a). The words, 'where there is reasonable cause to believe that the application has or may have the right to obtain relief' are not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief. It is not necessary to demonstrate whether or not the applicant has the belief". 42 In New South Wales v Taylor (2001) 178 ALR 32, the High Court considered the term "no reasonable cause to believe" as it appears in s.151A(5) of the Workers Compensation Act 1987 (NSW). At [15] of the joint judgment of Gleeson CJ, McHugh and Hayne JJ, they stated: "It is true that the notion of 'reasonable cause', although often used in legal instruments, is an awkward expression. A cause is a cause is a cause. Beliefs about causes may be reasonable, but causes are neither reasonable not unreasonable. They are facts even if, as current legal doctrine insists, they often involve value judgments." 43 In my opinion, the abovementioned principle in Taylor and test enunciated by Emmett J in Austrac equally applies in that the Tribunal, as was the Commissioner, must objectively be satisfied, from established facts of the matters set out in paragraph 24(2)(a) of the Act. These matters are that LY's domestic circumstances are such that she may not personally exercise continuous and responsible control over her firearm.
7. Section 11(7) of the Act provides that the Commissioner may also refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
8. Section 19 of the Act provides that a licence may be issued subject to conditions.
9. Section 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.

The public interest

1. The term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (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.
2. 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."
3. In Cusumano v Commissioner of Police [2001] NSWADT 50 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."
4. 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."
5. 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].
6. 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].
7. 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].

Confidentiality orders

1. In April 2021, the Tribunal made orders in relation to material that had been filed on a confidential basis. Senior Member Ransome made the following orders: "(a) The application for orders under s59 of the ADR Act is granted. The Commissioner of Police is not required to give to the Applicant the material that was the subject of that application: (b) The publication of the Confidential Material and Confidential Statement is prohibited. This order was made under s 64(1)(c) of the Tribunal Act. (c) the disclosure of the Confidential Material and the Confidential Statement, or matters contained in the Confidential Material and the Confidential Statement is restricted to the respondent, the respondent's legal representatives and the Tribunal. This order was made under s 64(1)(d) of the Tribunal Act (d) the publication and reporting of the hearing of this application, including any evidence given during the hearing, is prohibited. This order was made under ss 64(1)(b) and 64(1 )(c) of the Tribunal Act."

Issue for determination

1. The Tribunal is to determine whether the correct and preferable decision is to refuse to grant the licence application.

Material before the Tribunal

1. The Applicant filed two statements. He also relies on reports from Dr Joseph Dunn, a psychiatrist, and Mr Rolf Reed, a psychologist. Dr Dunn appeared at the hearing and gave evidence as did the Applicant. Ms M, the Practice Manager at a medical practice where the Applicant works, provided a character reference in support of the Applicant. The Applicant and Mr Kable both made submissions in support of the Applicant's case.
2. The Respondent provided documents in relation to the application filed pursuant to section 58 of the ADR Act ("the section 58 material"). As noted above, the Respondent also filed material on a confidential basis.
3. Senior Constable Wayne Jackson provided both open and confidential statements in support of the Respondent's application for orders in relation to the confidential material. Senior Constable Jackson is a Compliance Coordinator at the Firearms Registry. In that role he deals regularly with firearms licensing matters, audits firearms dealers, provides training and conducts courses on firearms licensing and undertakes a number of other duties related to firearms.
4. Ms Norquay, solicitor for the Respondent, provided both written and oral submissions.

The Respondent's case

1. The Respondent did not call any oral evidence but relied on written material, including the section 58 material and the material filed on a confidential basis.
2. The Respondent's identified a number of issues as providing support for its position that the licence application should be refused. These include: (a) the Applicant, A and B have been the subject of numerous police reports due to the mental health issues in the household; (b) as a result the of B's serious mental health issues, concerns are held that the Applicant may not personally exercise continuous and responsible control over the firearms because of his way of living or domestic circumstances; (c) the Applicant has a history of depression that remains unresolved; (d) the Applicant failed to disclose his mental illness in numerous applications for firearms licences, therefore providing false and misleading information to the Respondent; and (e) the Applicant was charged and found guilty of possessing an unregistered firearm. The matter was dismissed pursuant to section 10 of the Crimes (Sentencing Procedures) Act 1999.
3. I have provided a brief reference to the mental health issues in the household above. In regard to the Applicant's mental health, the Respondent contends that the Applicant has been receiving treatment and taking medication for depression for many years.
4. As noted, the Applicant was arrested in July 2018, and charged with several offences. The Respondent contends that, whilst in Police custody, he disclosed to Police that he suffered from depression. He also disclosed that he had been receiving intermittent treatment as well taking daily medication for the condition. This information is included in the Custody Management Record which is included in the section 58 material.
5. It is not in dispute that the Applicant lodged a re-application for his Category AB licence in November 2019. In the application form the Applicant responded "No" to the question of "Have you in NSW or elsewhere 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?". The Respondent contends that this response was not correct as the Applicant had been treated for depression in the previous 12 months. The Respondent also contends that the Applicant had not responded correctly in earlier re-applications for his Category AB licence because he had not declared that he was receiving treatment for depression.
6. The Respondent points to the reports provided by Dr Dunn and Mr Reed. Mr Reed had diagnosed the Applicant as having a major depressive disorder shortly before the re-application and both he and Dr Dunn had treated the Applicant in the relevant period. The Respondent submitted that the treatment should have been declared on the re-application forms. Licence applicants are required to answer accurately because the Firearms Registry is unable to undertake its own inquiries.
7. In regard to the finding that the Applicant was guilty of possessing an unregistered firearm, the Respondent noted that the Applicant received the firearm from a patient approximately two weeks before it was discovered. He was aware the firearm was unregistered and that the person handing him the firearm did not hold a current NSW firearms licence. The Respondent submitted that the possession of an unregistered firearm or failure to take steps to regularise the registration creates considerable risks for the public safety and the conduct demonstrates a lax attitude towards the strict requirements under the Act. The Applicant should have known better, particularly during an amnesty. The Respondent submitted that it was open to the Applicant to inform his patient that they should instead deliver the unregistered firearm to a Police station, rather than take possession of it himself and exposing himself to unlawful conduct under the Act.
8. The Respondent submitted that for these reasons it is not in the public interest for the Applicant to hold a firearms licence; and therefore the correct and preferable decision is to affirm the decision to refuse the Applicant's application for a Category AB Firearms Licence.
9. However, the Respondent submitted that if the Tribunal were minded to set aside the decision to refuse the Applicant's application, conditions should be imposed in regard to the storage of the Applicant's firearms.

The Applicant's case

1. The Applicant gave evidence in support of his case. He also relies on the reports provided by Dr Dunn and Mr Reed. Dr Dunn attended the hearing and was cross-examined.

The Applicant's evidence

1. The Applicant provided two statements in which he addressed the issues raised by the Respondent.

Mental Health Issues

1. He stated that he has been a keen shooter and been in continuous possession of firearms for over 50 years. He acknowledged that from time to time he has sought professional help in dealing with stress. In his opinion he has managed his depression in a responsible and proactive manner. He relies on the favourable psych reports provided by Dr Dunn and Mr Reed who have both known him for several years. Both have concluded that the Applicant is a fit person to be in possession of a firearms licence and that he is not considered to be a danger to himself or any other member of the general public.
2. The Applicant disagrees that B's mental health issues are escalating. He stated that since 2015, B has had longer periods of stability and domestic harmony. He is independent, honest and law abiding. B drinks alcohol infrequently. He has stopped binge drinking and all alcohol fuelled aggression has ceased. Community support has improved and B's mental state and medication compliance is monitored closely. He has demonstrated insight into his chronic mental health issues and his need for continuing outside support.
3. He stated that he understands the Respondent's concerns that B's proximity to the Applicant's property represents a possible risk in that he may gain access to the Applicant's firearms and harm himself or someone else. However, the Applicant stated that B lives independently in a detached residence on the property and has no access to the main dwelling. Consequently, he has no access to the Applicant's firearms. The Applicant further stated that B has no knowledge of or interest in firearms and has no involvement in the sport of shooting.
4. The Applicant stated that for B to have access to the Applicant's firearms he would need the Applicant's cooperation or, alternatively, B could break into the house, locate the gun safe and somehow break into it. He submitted that both scenarios are at best farfetched hypotheticals. He said that the solution is to not store the firearms on the premises. They have been stored at a friend's property.

Dr Joseph Dunn

1. Dr Dunn is a psychiatrist who has been treating the Applicant since 1997. He has seen the Applicant at varying intervals but at least once per year in that time. He reported that the Applicant has a mood disorder which is atypical but is probably best categorised as a mild type II bipolar affective disorder. His mood state has been reasonably stable over many years. The bipolar nature of the mood shifts is largely settled and the Applicant's mood instability over the past 20 years has been minimal.
2. He has no reason to believe that the disorder would affect the Applicant's fitness to possess and use firearms. He did not identify a current risk that the Applicant's condition may impact on his ability to exercise continuous or responsible control over firearms. He is not concerned that any relapse would impact on this ability. He does not think that the Applicant's condition has the potential to put public safety at risk, if he were to have possession and use of a firearm.
3. He agreed that there is virtually no risk to public safety in the context of the Applicant's future ability to safety possess firearms.
4. As noted above, Dr Dunn attended the hearing and was cross-examined. He agreed that he is responsible for the Applicant's medication and considers that performing this role can be described as treatment. He didn't agree with Mr Reed's assessment that the Applicant has depression but he conceded that Mr Reed may have seen the Applicant at a time when he was depression.

Mr Rolf Reed

1. Mr Reed is a Registered Psychologist. He has been treating the Applicant since October 2019. Mr Reed's initial assessment was that the Applicant presented with symptoms consistent with a diagnosis of Major Depressive Disorder.
2. He currently sees the Applicant on a one hour per month basis. The Applicant attends for supportive counselling and de-briefing regarding his role as a carer for A and B.
3. Mr Reed's view is that the Applicant's condition does not in any manner affect his fitness to possess and use firearms. It does not adversely impact his capacity to think in a rational manner. He said that the Applicant has complied with all treatment recommendations that Mr Reed provided to him. Mr Reed did not identify a current risk that the Applicant's condition may impact on his ability to exercise continuous or responsible control over firearms.
4. He stated that the Applicant clearly demonstrates the capacity to form rational judgements, exercise willpower and control physical acts in accordance with rational judgement. He does not think that the Applicant's condition has the potential to put public safety at risk, if he were to have possession and use of a firearm.
5. He stated that he has no hesitation in stating that, in his professional assessment, there is virtually no risk to public safety in the Applicant's future ability to safely possess firearms.

Possession of unregistered firearm

1. The Applicant stated that he was charged and pleaded guilty of possessing an unregistered firearm. The firearm was handed to him by a patient, who was unlicensed and believed the firearm in question had substantial value due to its age and history. A firearms amnesty was in place at the time of the offence and he had a plan to have the weapon surrendered or registered within the timeframe of the Amnesty. He planned to have a gunsmith assess the firearm and it would either be registered if it was useable or if it was not useable it would be surrendered under the amnesty.
2. He admitted to making an error in judgement. He believes that it was a stupid but honest mistake and there was no element of deception or malicious intent. He stated that he is genuinely sorry for the mistake and guarantees it will never happen again.

Answering questions on the applications incorrectly

1. The Applicant accepted that he did not disclose his mental illness in his numerous applications for firearms licenses. However, he maintains that he was mentally well, and did not believe that he was treated for any of the conditions referred to in the application 'in the proceeding 12 months' leading up to the re-applications.
2. He does not accept that he has been continuously mentally ill since 1997, especially in a way that would prevent him from being able to personally exercise continuous and responsible control over firearms.
3. He accepted that he had seen Dr Dunn and Mr Reed but at the time he did not believe it was for "treatment". He categorised the visits as maintenance. He now accepts that the visits were a form of treatment.
4. He agreed that he honestly disclosed his history of past treatment for depression in a Police interview. He stated that 2019 turned out to be an "annus horribilis" for him. A had suffered severe mental health issues and he took time off work to look after her at home and support her through her hospital stays and home recovery stage. He consulted Mr Reed for some supportive counselling. He did not associate what he was going through at the time with 'treatment for mental illness' in the context of the license renewal. Rather, he saw it as supportive counselling.
5. Mr Reed provided him with the coping skills necessary to work through the anxiety and grief and to cope with his professional duties as a doctor and personal challenges arising from A's serious mental health issues.
6. He said that Dr Dunn described the anxiety and grief that he experienced at that time as an "adjustment disorder" and he considered it a normal reaction given the nature of A's illness.
7. The Applicant stated that he had elected to see Dr Dunn and Mr Reed and that he was in fact a well patient. He said that he attended Dr Dunn to collect scripts but that he would have sought supportive counselling even if he did not have a history of mental illness. He did not deliberately attempt to deceive the Firearms Registry.

Ms M

1. Ms M provided a character reference in support of the Applicant as someone who has witnessed his interactions with a variety of people including patients, admin staff, nurses and fellow doctors. She is aware of the Applicant's personal circumstances as they concern A and B as well as his professional role.
2. She has found the Applicant to be a stable and reliable health practitioner, professional at all times and a real asset to the Practice. He has a good working relationship with all staff and is generally well respected by staff and patients alike. He is well respected by his colleagues and his patients openly speak well of him. He is known to be a caring and thorough doctor with good communication skills.
3. In her opinion the Applicant is a person of good character

Consideration

1. As I have noted, the background is not in dispute. It is not in dispute that the Applicant, A and B have been the subject of numerous police reports or that the Applicant has a history of mental illness. It is not in dispute that the Applicant was charged and found guilty of possessing an unregistered firearm.
2. The Applicant now accepts that he should have disclosed that he had received treatment for mental illness on the licence re-application forms by responding "Yes" to the question "Have you in NSW or elsewhere 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?". However, he maintains that he did not intend to mislead the Respondent.
3. I accept that when providing the incorrect answer on the re-application forms he believed that he was answering honestly. I accept that he viewed the treatment that he was receiving from Dr Dunn and Mr Reed as supportive counselling rather than treatment for mental illness. I accept that he did not intend to mislead the Respondent. In my view, this is not an issue that should be given any significant weight in regard to the issue of whether it is not in the public interest for the licence application to be granted.
4. It is common ground that while the Applicant was found guilty of possessing an unregistered firearm and that the matter was dismissed pursuant to section 10 of the Crimes (Sentencing Procedures) Act 1999. The Applicant's failure to act appropriately in regard to the unregistered firearm is understandable given his circumstances but it is not justified. I accept that it reflects badly on his attitude towards the strict requirements under the Act. Nevertheless, the Court's order reflects the actual risk to the public from the conduct. In my view, this is not an issue that should be given any significant weight in regard to the issue of whether it is not in the public interest for the licence application to be granted.
5. In the circumstances, the more significant issue is the question of whether there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of his way of living or domestic circumstances.
6. It is not in dispute that B lives in accommodation on the same property as the Applicant. It is also not in dispute that B has engaged in both violent and erratic behaviour that has involved both the Applicant and others. I note the Applicant's evidence that B has had longer periods of stability since a change in his medication was introduced, and that the level of support B receives has significantly improved. While this change is encouraging, the possibility of a relapse remains.
7. I also note the Applicant's view that it is farfetched to suggest that for B could gain access to his firearms. Nevertheless, it is my view that if B were to relapse, there is some risk that B could attempt to force the Applicant to provide him with that access. My only concern in relation to the issue of whether the Applicant's domestic circumstances are such that he may not personally exercise continuous and responsible control over his firearms would be if B were to relapse and adopt a violent approach towards gaining access to the firearms. I accept that the risk of this occurring is minimal.
8. I note that the Applicant has suggested that the solution is to not store firearms on the premises. I also note that the Respondent submitted that if the Tribunal were to set aside the decision to refuse the Applicant's application, conditions should be imposed in regard to the storage of the Applicant's firearms.
9. I agree with the Respondent in that regard. Notwithstanding my view that the risk is minimal, this approach would remove the risk completely.
10. In my view, the correct and preferable decision is to set aside the Respondent's decision and to grant the Applicant's licence application subject to conditions. The conditions should provide for the Applicant's firearms to be stored off the premises where he currently resides. The conditions should be able to be varied if circumstances change.

Orders

1. The decision to refuse the application by Allan Matus for a Category AB Firearms Licence is set aside.
2. The decision is made that the application by Allan Matus for a Category AB Firearms Licence is granted. The Category AB Firearms Licence is granted subject to the following conditions: (1) The Applicant is not to store or allow any firearm to be stored at his current residential address; (2) The Applicant is not to possess a firearm within 200 metres of his current residential address, unless otherwise agreed to by the Firearms Registry; (3) The Applicant is to only store his firearms at an approved shooting range or other venue to which the Commissioner agrees ("the agreed location"). Storage of the Applicant's firearms is at the Applicant's own expense; and (4) The Applicant is to notify the Firearms Registry if he proposes to store his firearms at an address other than the agreed location. This notification is to be given in writing by email or as otherwise agreed with the Firearms Registry and is to be given no later than 14 days after the firearms have been stored at an address other than the agreed location. The notification must: (a) specify the address of the new premises on which the firearm is to be kept when not actually being used; (b) specify particulars of the arrangements that have been made by the licence holder for the safe keeping and storage of the firearm on those premises: and (c) certify that those arrangements comply with the requirements of the Act and the Regulation concerning the safe keeping and storage of firearms.
3. These conditions may be varied by agreement between the parties

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

Amendments 05 April 2022 - The date of decision and order was incorrectly put as 5 March 2022 rather than the correct date 5 April 2022. 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 April 2022