McDiarmid v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-06-02

Applicant's name

An administrative review application form was filed with this Tribunal on 19 September 2022. The Applicant's name was stated to be Kieran James Rodgers and the matter proceeded on that basis. On the day of the hearing, and in the course of giving evidence, the applicant in the proceedings (Applicant) stated that he had recently changed his surname from Rodgers to McDiarmid and that he had only received the paperwork from the Registry of Births, Deaths and Marriages some two days earlier. Due to illness, the Applicant appeared at the hearing by way of audio visual link and at the end of the hearing, an order was made for the Applicant to provide a copy of his amended birth certificate to the Tribunal and to the Commissioner of Police, NSW Police Force (Respondent). It was foreshadowed that, subject to the receipt of the amended birth certificate, I proposed to refer to both names for the Applicant in the Reasons for this matter. Neither party wished to make further submissions in relation to this matter, and Ms Carmody, solicitor, who appeared on behalf of the Respondent did not oppose this course and submitted in effect that it was a matter for the Tribunal.
A copy of the Applicant's amended birth certificate dated 13 May 2023 was provided to the Tribunal by the Applicant on 5 June 2023. The amended birth certificate was in the name of Kieran James McDiarmid and contained the following endorsements: The full name of the registered person was previously recorded as Kieran James HART, formerly known as Kieran RODGERS. Registrar 24 August 2011. The full name of the registered person was previously recorded as Kieran James RODGERS, Registrar 13 May 2023.
On the basis of the Applicant's evidence and the provision of the amended birth certificate dated 13 May 2023, these Reasons refer to Kieran James McDiarmid, formerly Kieran James Rodgers, being the Applicant in these proceedings.

Background

The Applicant is seeking review of a decision made by the Respondent to refuse his application for a category AB firearms licence (the Application) under the Firearms Act 1996 (the Act). The Application was made on 11 November 2020 and the decision to refuse the Application on public interest grounds was made on 1 October 2021.
On 27 October 2021, the Applicant applied for internal review of the Respondent's decision to refuse his firearms licence and on 19 August 2022, the Respondent affirmed the decision. The Applicant subsequently applied for administrative review by the Tribunal and no issue was taken by the parties in relation to the jurisdiction of the Tribunal in this matter.

Applicable legislation

The general principles and objects of the Act are set out in s 3 as follows: (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 (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows - (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) …
Section 11 of the Act relevantly provides: 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 ... (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

The evidence

The matter was heard on 2 June 2023. As previously indicated, due to his ill health, the Applicant was granted leave to appear by way of audio visual link and the Respondent consented to this course. The Applicant advised that he was well enough to participate in the hearing.
The Respondent did not call any oral evidence and relied on the s 58 documents (exhibit R1), the supplementary evidence bundle (exhibit R2), and a bundle of material produced on summons (exhibit R3). The Applicant did not provide any documentary evidence and relied upon certain of the material filed by the Respondent, in particular the material that he had provided in his application for internal review. The Applicant gave oral evidence and was cross-examined.

Submissions

Written submissions were filed on behalf of the Respondent on 23 January 2023 together with supplementary submissions filed on 13 April 2023. Ms Carmody also made oral submissions on behalf of the Respondent at the hearing. The Applicant did not file any written submissions and made oral submissions at the hearing.

Role of the Tribunal

Section 75(1)(a) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). Section 63 of the 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 then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34]. In an application for review the 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.
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 [23]. Accordingly, the objects and purposes of the Act are relevant.

Issues

The Respondent contended that it was correct to refuse the Application on the basis that: 1. it would be contrary to the public interest for the Applicant to hold a firearms licence; and 2. that the Applicant was not, and is not, a fit and proper person and cannot be trusted to have possession of firearms without danger to public safety or to the peace.
In support of both of these grounds, the Respondent relied upon the Applicant's traffic history; concerns relating to his mental health; and contended that the Applicant had contravened s 70 of the Act.

Public interest

The phrase "public interest" is not defined in the Act. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9 [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms: [A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (No 2) (1995) 131 ALR 657, 681, the High Court said: 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 Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
The issue of public interest allows for matters going beyond the applicant's character to be taken into account. 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, [33]. In the present context, and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety.
In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward), 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. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" at [8].
Other cases have pointed out that 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, [64] - [66]. In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32], when considering the question of public safety, Montgomery SM 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".

Applicant's traffic history

The Respondent submitted that it is not in the public interest for the Applicant to be afforded the privilege of a firearms licence due to his concerning traffic record and that the Applicant's repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme designed to ensure public safety and for the law generally: Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273, [102]. In support of this contention, the Respondent relied upon the Applicant's traffic record and Criminal History Bail report (part exhibit R1).

Applicant's evidence

The Applicant did not dispute his traffic history. In his letter of 27 October 2021 to the Firearms Registry (27 October 2021 letter) (part exhibit R1), the Applicant "absolutely acknowledge[d] that these issues raise concern for the registry". He said however he wanted it to be known that "after a serious change of career and considerable self-reflection/development this is no longer an ongoing issue". The Applicant stated that the nature of his more recent offences was "vastly different to those previously cited". In relation to the offence of proceed through a red traffic light on 21 March 2021, the Applicant stated that he was coming home after a 12 hour night shift, which had been in excess of 15 hours, and failed to see the light change whilst observing a car in his immediate vicinity. In relation to the infringement for speeding on 21 January 2021, he said he was travelling to work with cruise control set and failed to observe a change in the then newly installed variable speed limit signs. The Applicant said that he immediately made changes to his driving habits on both occasions to avoid future offences and to ensure that no further issues would arise. The Applicant stated that he offered this explanation not as an excuse or means of justification but instead as evidence of a systematic change in his behaviour.
The Applicant went on to say in his 27 October 2021 letter that his previous traffic issues were predominantly whilst he was in control of a motorcycle and, after acknowledging that fact, he had stopped riding. He stated that he held no motorcycle registrations and had no present plans to change that in the near or distant future. The Applicant also referred to his employment in custodial services for both the state and federal governments and stated that he had qualified in the safe handling and control of his employer's allotted service weapons. He said that in all of his assessments, he consistently performed to an exceptional standard in legislation theory, safe handling, marksmanship, and operational use. He stated that these firearms in "the civilian world would be considered Category D and Category H respectively'".
In his oral evidence, the Applicant did not dispute his traffic history but said that there had been "a change for the better". He gave evidence that he had recently lost a close friend and that this had changed his whole outlook and his obedience to road traffic rules. In cross-examination, the Applicant was asked if he accepted that his traffic record was not very impressive and that there were quite a few entries over a not very lengthy period of time. The Applicant indicated that he accepted this within the confines of this matter. When asked if he had done anything to improve his compliance with this particular legislative scheme, he replied "absolutely", and that he had undergone a traffic offenders programme "twice". He said that he had completed the course once because a court had asked him to and that clearly, he did not change much. He said that his offending had lowered but that it was still there.
The Applicant stated that the first real change took place when he changed his occupation and moved into the Justice and Immigration sectors, and the second one was when he buried his best friend as the result of a traffic related matter. He said that the death of his friend was entirely the fault of his friend and that his friend had been doing the same things that the Applicant had been doing. He said that he learned more in the moment of lowering his friend into the ground than from the Traffic Offenders Program. The Applicant said that his friend's accident occurred in December 2018, and he passed away eight months after that. The Applicant gave evidence that he now rides a motorcycle again and that he found that this helped him to be more aware of his surroundings. He also said that he is a "ritual user of cruise control". He said that his partner and family members refer to his previous traffic history and now joke that, as he does not drink and is a safe driver, he is the "go to" designated driver.
In cross-examination, Ms Carmody took the Applicant to his 27 October 2021 letter in which he indicated that he had stopped riding his motorcycle due to his previous traffic issues. The Applicant acknowledged that it was correct at the time but that things had changed since 2021. He stated that he had been forced to ride his friend's motorcycle after the accident and realised that it made him more aware of his safety. He said that he had now changed cars and no longer drove a supercharged V6 . He said that he had been riding a motorcycle since February or March in 2023 and realised that it was not about the vehicle but that it was about the driver. He said that he had had to justify his traffic record to his employers in the past and that he was now a very different driver. He said that there were "no dramas" in him owning his past but that it was not "emblematic" of who he is today. The Applicant again provided explanations for his most recent traffic matters and the reasons why he believed that they were very different to his previous matters.
Once cross-examination of the Applicant was completed, I asked him to clarify his reference to having carried out two traffic offender courses, of which one was for the court. The Applicant said that he had done the actual course in his own name and that the second one was after his friend died. He said that this comment was made in jest and that the second course was a reference to what he had learned when his friend died, and that he had found his friend's certificate for completing the Traffic Offender's Program. He also confirmed that as at the date of the hearing, he had not incurred any further traffic infringements.

Other evidence relied upon by the Applicant

The Applicant relied on three character references that he submitted in support of his internal review application (part exhibit R1). These references were from Mr Wayne O'Keefe, a work colleague and friend; the Reverend Eric Percival, a Rector who he knew on both a professional and social level; and from his father, Mr Dennis Rodgers. Mr O'Keefe made reference to having known the Applicant since they both commenced their initial training as custodial officers. He referred to the Applicant's extensive firearms safety training as a custodial officer and stated that "both on and off the range [the Applicant] is always the standard of safety that his colleagues set the benchmark from". Reverend Percival noted that when he first met the Applicant through his role as Chaplain to the NSW Army Cadets, he was immediately impressed with the Applicant's maturity and intelligence and in all of his dealings, found him to be a man of honesty and integrity. He stated that it was his "honest and professional opinion that [the Applicant] presents no threat or danger to himself or to society." The Applicant's father stated that he is not an advocate for gun ownership but that he could not think of anyone who is more "morally and socially adjusted with a focus of safety at all times to possess a firearms licence" than the Applicant.
The Applicant also relied upon a report obtained by him from Mr Alex Quan, Psychologist dated 1 December 2022 (part exhibit R2) for these proceedings. In the report, Mr Quan makes reference to having had previous contact with the Applicant in 2018 when he was referred by his doctor for treatment and that the Applicant was again referred to see him in January 2020. Under the heading, "Relevant background information", there is reference to the Applicant being currently employed as a Correctional Officer and being concurrently employed as a Detention Services Officer at a Detention Centre. He states that as "part of his employment, [the Applicant] is qualified in the safe handling of the service weapons as well as being deemed mentally and physically fit to perform all his duties". No documentary material was referred to by Mr Quan in support of this statement. Mr Quan opined that to date, available evidence would suggest that the Applicant had safely handled firearms in accordance with the policies and procedures of his workplace and that the Applicant would be at "very low risk" regarding the improper use of firearms.
In the report, Mr Quan makes reference to the Applicant's traffic history as follows: …It is noted that some of [the Applicant's] earlier traffic offences were more serious in nature (ie speeding more than 30 km/h but under 45 km/h) than his more recent offences. His more recent offences involve exceeding the speed limit by more than 10 km/h but less than 20 km/h and disobey traffic lights. [The Applicant] attributes these two recent offences to be related to fatigue generated from an over-time shift as well as failing to adjust to a variable speed limit sign. This demonstrates an improvement in his attitudes towards driving
Mr Quan referred to the Applicant recounting a history with mood disorder symptoms that resulted from a previous relationship that ended in approximately mid-2016 and stated the following: In linking this relationship to his earlier traffic offences, [the Applicant] further recalled that during moments of emotional distress resulting from the relationship conflicts, he would often ride his motorcycle to self-regulate his mood. However, [the Applicant] has admitted that this would sometimes involve speeding on his motorcycle. He denied having any suicidal ideations. Rather, he described speeding as a maladaptive form of mood regulation to distract from the conflicts with his ex-partner. He no longer engages in this form of maladaptive coping due to his recognition of the dangers.

Consideration

In the written submissions, the Respondent referred to the Applicant's extensive list of traffic related infringements and an essentially appalling disregard for traffic laws and regulations. The Respondent submitted that the Applicant's traffic history demonstrates a propensity to disregard the traffic laws that are enacted to ensure public safety and it was submitted that it is not the public interest for someone with such a history to hold a firearms licence. It was the Respondent's case that the Applicant's traffic infringements directly relate to public safety and raise doubts regarding the Applicant's ability to abide by the rules and regulations necessary to possess a firearms licence. Reference was also made to the Applicant's admissions to Mr Quan about deliberately speeding and that this maladaptive behaviour evidently resulted in the endangerment of public safety.
The Respondent submitted that despite Mr Quan's assessment in this report that "there is no evidence to indicate any current maladaptive psychopathology", this pattern of behaviour cannot be ignored. It was submitted that with such a documented history of engaging in dangerous behaviour that impacts on public safety as a form of "mood regulation", it cannot be said that the risk to the public safety is minimal, fanciful or theoretical should the applicant hold a firearms licence.
In his evidence, the Applicant accepted within the confines of this matter, that his traffic record was not very impressive and that there were quite a few entries over a not very lengthy period of time. The Applicant submitted however, that after a serious change of career, and following the death of his close friend through a motor cycle accident, that his attitude to road safety had changed dramatically and there had been a systemic change in his behaviour. The Applicant gave evidence that he is a changed person and that his traffic history was not emblematic of the person that he is now.
Senior Member Montgomery held in Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273 at [102] that "the Applicant's repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme aimed at ensuring public safety". I accept that an applicant's disregard for the traffic laws and regulations may be relevant to the criteria for a firearms licence.
In Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145 Senior Member Schahill said at [57] and [81]: 57. The Applicant was unable to recall the traffic offences. Some of the offences are repeated e.g. speeding, PCA and not wearing a seatbelt - the last, on three occasions. On one view this demonstrates that the receipt of infringements had made little impact on the Applicant. They did not cause him to change his behaviour. The repeated infringements also suggest a lack of concern for either the public's or his own safety. … 81. The Tribunal is satisfied, viewing the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. The Tribunal considers it is relevant that the Applicant was in possession of what on balance appears to be a prohibited weapon. The Applicant professed ignorance of this and said he was not an expert on firearms.
The Tribunal must consider all relevant matters and as the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at [25]-[25]: 24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d). 25. In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi [Hijazi v Commissioner of Police, NSW Police Force [2015] NSWCATAP 82] does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or permit as irrelevant considerations.
The Applicant's traffic history has been set out above and was not disputed by him. Accordingly, I accept that at the time of the hearing, the Applicant had held a number of licences, including a Class C licence and a Class R licence for just over nine years. During that time, the Applicant accumulated some 13 traffic offences that included four speeding offences, three offences of not complying with a condition of his licence, one offence of driving whilst suspended and one offence of being an unlicenced driver/rider. The Respondent's written submissions make reference to the Applicant having 14 traffic infringements, including two matters of not complying with the conditions of his licence on 26 March 2017. Having regard to the Applicant's traffic history, I am not satisfied that these are two separate matters and for this reason I find the Applicant has 13 traffic infringements rather than 14.
On 12 February 2014, as a result of driving whilst suspended, the Applicant was disqualified from driving by way of a court order for a one year period. The Applicant's licences have also been suspended on various occasions due to fine defaults and demerit points and between 2021 and 2022, were subject to Good Behaviour Conditions. On numerous occasions, the penalties incurred by the Applicant for his traffic offences have been referred to the State Debt Recovery Office and various warning and courtesy letters sent to him.
Having regard to the above, and in particular the length of time that the Applicant has held licences; the number and seriousness of the Applicant's traffic offences during this time, including one offence of driving whilst suspended and one offence of being an unlicenced driver/rider; together with the various periods of licence suspensions and his court ordered disqualification for one year; I find that the Applicant's history of traffic offences is significant and I accept the submission that the Applicant's traffic history demonstrates an appalling disregard by the Applicant for traffic laws and regulations and raises doubts regarding the Applicant's ability to abide by the rules and regulations necessary to possess a firearms licence. The Applicant's admission to Mr Quan of deliberately speeding in the past is concerning and such behaviour clearly presented a risk to both the Applicant and public safety. I accept that public safety, including the Applicant's safety, is the primary focus when considering issues of the public interest under the firearms legislation and that the Applicant's individual interest in obtaining a licence must be subordinate to the public interest.
In submissions, Ms Carmody referred to the Applicant's evidence that he is a changed person and that the issue of a firearms licence to him is not an issue because of the change to his circumstances. Ms Carmody submitted that the primary evidence of this change comes from the Applicant's self-reporting and that there is limited external evidence to support this. Whilst this submission referred to the various grounds relied upon by the Respondent, it included the Applicant's traffic history, and the Applicant's contention that his traffic record was not emblematic of the person that he has become.
I have previously referred to the character references relied upon by the Applicant. Only the reference from Mr O'Keefe is dated, namely 26 October 2021, and it is assumed that the other references were completed on or about this date. The reference from Mr O'Keefe makes no reference to the length of time that he has known the Applicant or to any changes that he has observed. Whilst the reference from Reverend Percival refers to their mutual love of motorcycles and to the Applicant having risen above more than his fair share of difficulties in life, it makes no reference to the Applicant's traffic history. The Applicant's father refers to a variety of matters, including to a previous tough period experienced by the Applicant He also refers to the Applicant being morally and socially adjusted, with a focus of safety at all times, but does not refer to the Applicant's traffic history.
In circumstances where the references make no mention of the Applicant's traffic history, and where the referees did not give evidence, I am not able to be satisfied that they were aware of the Applicant's traffic record. Accordingly, I find that the character references are of very limited assistance to me on this issue and I give them extremely limited weight.
Mr Quan's report is dated 1 December 2022 and he records that he interviewed the Applicant for the report on 11 and 25 November 2022. In the report, Mr Quan opined that in "summary of the available information there is no evidence to indicate any current maladaptive psychopathology" and that the Applicant would be at "very low risk regarding the improper use of firearms." Mr Quan was not called to give evidence in the Tribunal proceedings and was not cross-examined. It appears from Mr Quan's report that he relied on the s 58 documents (exhibit R1), the Applicant's responses to the various psychometric testing and his two interviews with the Applicant in November 202 to prepare his report. There is nothing in Mr Quan's notes of those interviews that suggests that he relied upon any other source of information in reaching the opinions expressed in his report.
Mr Quan also recorded his finding that there was evidence from the psychometric testing to suggest that the Applicant was motivated to portray himself in a more positive light than the clinical picture would warrant. Mr Quan indicated that this was demonstrated through the Applicant's score on the Positive Impression validity scale which was elevated over normal range and as a result, the conclusions drawn in his report were done so in consideration of that scale. Mr Quan also indicated that there was no evidence to suggest that the Applicant was aiming to portray himself in a more negative light than what was observed in the clinical picture.
I find that, other than the material contained in the s 58 documents, all of the information relied upon by Mr Quan in his report came from the Applicant's self-report. In these circumstances, and in particular where Mr Quan was not called to give evidence, the opinions expressed by him in the report do not assist me in considering the issue of risk presented by the Applicant holding a firearms licence. Accordingly, I give the report extremely limited weight.
It is clear that most of the evidence about the changes made by the Applicant come from the Applicant himself. However, I accept the Applicant's evidence that he has made various changes to his life, including that he has changed careers, that he now has improved support systems around him, that he has re-partnered and that, as at the date of the hearing, he was about to get married. I accept that the Applicant's best friend was involved in a motor cycle accident in December 2018, that he died some eight months later and that this had a profound impact on the Applicant.
The Applicant gave further evidence that as a result of his friend's death and the change in his career, he had changed his outlook and his obedience in relation to road rules and submitted that his traffic history was no longer an issue. The Applicant conceded that there had been a number of traffic offences since that time but stated that the nature of his offences was a far cry from his previous offending.
In his report of 1 December 2022, Mr Quan makes reference to the Applicant's traffic history and opines that some of the Applicant's earlier traffic offences were more serious in nature than his more recent offences. Mr Quan refers to the Applicant's explanation for a recent speeding offence and the offence of disobey traffic lights, and states that this demonstrates an improvement in the Applicant's attitudes towards driving. Mr Quan is a psychologist and there is no evidence before the Tribunal to support that he is qualified to express views in relation to traffic offences or to the relative seriousness of such offences Accordingly, I disregard any such opinions expressed by him in his report. In the absence of any explanation in the report from Mr Quan as to how he reached his opinion that the circumstances of the Applicant's more recent offending "demonstrates an improvement in his attitudes towards his driving", I also disregard this opinion.
The Applicant's evidence was that his best friend's motorcycle accident was in December 2018 and his friend died eight months later. However, it is not clear from the Applicant's evidence as to exactly when the change to the Applicant's career took place. It appears from the notes of Mr Quan's consultations with the Applicant (part exhibit R2) that this had not occurred at the time of the consultations in early to mid-2018. In his 27 October 2021 letter, the Applicant refers to friends, family and colleagues observing that his attitude to roads had changed dramatically after a "serious" change of career and "considerable self-reflection/development". The Applicant also stated in the 27 October 2021 letters that "for some time now" he had been working in custodial services for both the state and federal government and was currently working in a detention centre and had recently commenced work in the correctional area. The progress notes from Mr Quan dated 11 November 2022 (part exhibit R2) record that the Applicant had commenced various roles in these areas in approximately May 2020 and September 2020 and that by the time of his interview with Mr Quan, he was working as a Correctional Officer and at a Detention Centre.
Having regard to the above, it appears that the Applicant's stated changes in relation to the traffic rules commenced from at least July 2019. It appears however, that these changes had little effect on the Applicant's traffic record in the period from July 2019 to 27 March 2021, with the Applicant committing a further five traffic offences during this period. He also had various traffic fines referred to the State Debt Recovery Office and his licences were subject to various periods of suspensions. A further suspension in June 2021 for demerit points was not implemented on the basis that Good Behaviour Conditions applied to the Applicant for the period 8 June 2021 to 7 June 2022. Of note, the Application was lodged on 11 November 2020 and the Applicant incurred two further traffic infringements on 24 January 2021 and 27 March 2021.
The Applicant's evidence was that the nature of the more recent offending is vastly different to his previous offending, especially the speeding offence on 24 January 2021 and the disobey traffic lights matter on 27 March 2021. In support of this, the Applicant gave evidence as to the reasons for this offending. In my view, the explanations provided by the Applicant do not serve to minimise his offending and I do not accept that his more recent traffic history is somewhat different or a "far cry" from his previous offending. I find that the Applicant's traffic offences on, and from, 2 July 2019 are significant traffic offences that put both the Applicant and the public at risk. I have particular regard to the Applicant's offence in November 2019 for "unlicenced driver/rider"; the ongoing referral of various of his fines to the State Debt Recovery Office; and the consequent suspensions of the Applicant's licences. I am satisfied that the Applicant's conduct demonstrates a continuing disregard by the Applicant for a regulatory system aimed at ensuring public safety.
Of additional concern is the Applicant's description of his past speeding on his motorcycle as a maladaptive form of mood regulation to distract from the conflicts with his ex-partner, and the consequent danger that this presented to both the Applicant and to the public safety. It is to the Applicant's credit that he has taken steps in an effort to make changes to his work, to his relationships and to his driving and that he told Mr Quan that he no longer engages in this form of maladaptive coping due to his recognition of the dangers. It appears however that despite the steps taken by the Applicant, he continued to accrue traffic infringements until 27 March 2021 that resulted in his licences being subject to good behaviour conditions from June 2021 to June 2022.
The Applicant stated in his 27 October 2021 letter that due to the fact that his previous traffic issues were predominantly whilst in control of a motorcycle, he had stopped riding and had no plans at that time to change that in the near or distant future. However, by the time of the hearing in June 2023, the Applicant was again riding a motorcycle. There was no evidence to suggest that he had discussed this change of view with Mr Quan, and it is not referred to in Mr Quan's report.
In Busutel v Commissioner of Police, NSW Police Force [2022] NSWCATAD 384, the applicant in that matter had a history of some 21 traffic related offences over a period of approximately 15 years. The Tribunal found that it was not in the public interest for that applicant to hold a firearms licence. In reaching that conclusion, the Tribunal found the applicant's traffic history to be "significant" and commented at [81] that "more would be required than the mere passage of time to show that the Applicant has changed his ways and undergone reformation of character." I agree with the reasoning of the Tribunal in that matter.
I accept that the Applicant is taking steps to make changes to his life. However, whilst the Applicant gave evidence that his driving history is no longer an ongoing issue, I do not find that this is the case. I have found that the Applicant's traffic history is significant, including the period from July 2019. Whilst I accept that the Applicant has not committed any further traffic offences since 27 March 2021, I have regard to the fact that after that date there was a proposed suspension of the Applicant's licences for demerit points and that the suspension was not implemented on the basis that Good Behaviour Conditions applied to the Applicant. As a result, the Applicant's licences were subject to Good Behaviour Conditions between June 2021 and June 2022, and expired approximately one year prior to the hearing.
As referred to previously, Dr Quan noted in his report that there was evidence from the psychometric testing administered by him to suggest that the Applicant was motivated to portray himself in a more positive light that the clinical picture would warrant. In light of the Applicant's uncontested traffic history, I find that the Applicant appears to have a much more positive view of his recent traffic record than is supported by the evidence. The Applicant contended that he is easily the most fastidious and steadfast advocate for safe practice with firearms within his social and professional circles, but this is clearly not reflected in his compliance with the rules and regulations relating to road safety, another regulatory scheme imposed to protect public safety.
In light of the Applicant's poor traffic record, I am not able to be satisfied that there would be virtually no risk to the community if the Applicant is permitted to possess firearms. Accordingly, in all of the circumstances of this matter, I am of the view that the issue of a firearms licence to the Applicant at the current time would be contrary to the public interest.
The situation may change given the passage of more time if the Applicant is able to demonstrate sustained compliance with his obligations. However, at this time, the correct and preferable decisions is to refuse to grant the firearms licence that he is seeking. Accordingly, the Respondent's decision should be affirmed.
In light of this finding, it is not necessary that I consider the further grounds raised by the Respondent or to determine whether the Applicant is a fit and proper person to hold a firearms licence.

Order 1. The decision under review is affirmed.

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: 18 April 2024

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