Mills v Commissioner of Police, NSW Police Force [2025] NSWCATAD 90

1. The Applicant gave evidence by way of audio-visual link and Mr Kruger-Davis gave evidence by telephone, and both were cross-examined by Mr Deards, the legal representative appearing for the Respondent.
2. The Respondent relied on the s 58 documents (exhibit R1) together with a bundle of supplementary evidence (exhibit R2). The Respondent did not call any oral evidence.

1. Mr Kable, the legal representative appearing on behalf of the Applicant, relied on written submissions dated 16 June 2024. The Respondent relied on written submissions dated 18 June 2024. Oral submissions were made on behalf of both parties at the conclusion of the hearing.

1. 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.
2. 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) 235 CLR 286; [2008] HCA 31.
3. 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] (Cusumano). Accordingly, the objects and purposes of the Act are relevant when exercising a discretion under the Act.

1. The Decision, the subject of this application for review, referred to s 24(2)(d) of the Act and cl 20 of the Firearms Regulation 2017 (NSW), which relate to the revocation of a licence on public interest grounds. It was acknowledged in the Respondent's written submissions that the Decision relates to a decision to refuse the Application for a licence, and not to revoke a licence. Accordingly, it was acknowledged that the applicable provision that ought to have been identified in the Decision was s 11(7) of the Act, which also relates to public interest grounds. This was not contested by the Applicant, and I am satisfied that this application for review relates to a refusal of the Application.
2. The Respondent did not rely on any further grounds and accordingly, I am satisfied that the Tribunal must determine whether or not the issue of a licence to the Applicant would be contrary to the public interest. For the purpose of this application for review, the Tribunal steps into the shoes of the Respondent under the Act.
3. It was not contended by the Respondent that the Applicant had been charged with, or convicted of, any contravention of the Act or associated regulations, nor had he come to the attention of police at any time due to any reports of misuse of firearms. In the absence of any evidence to the contrary, I am satisfied that this is the case. I am also satisfied that the Applicant has no criminal convictions. Whilst a copy of the Applicant's traffic record was before the Tribunal, it contained only one matter dating back to 1996 and was not relied upon by the Respondent in this application for review and I give no further consideration to it.
4. The Respondent relied on the following matters in support of the contention that the issue of a licence to the Applicant would not be in the public interest:

(i) There are evident concerns regarding the Applicant's mental health that were identified by police when they attended the Applicant's property on 25 August 2023;

(ii) There are further concerns regarding the Applicant's mental health as he received treatment for a substantial period of time from 2015; and

(iii) That the Applicant may have contravened s 70 of the Act by providing false and misleading information in his application for a firearms licence signed on 20 August 2018.

1. The phrase "public interest" is not defined in the Act. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at [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 at [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."

1. 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] VicRp 6; [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (No 2) [1995] IRCA 540; (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."

1. 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 at [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.
2. 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 at [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130].
3. 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 (AML) 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].
4. 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 at [64]- [66]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32], Montgomery JM when considering the question of public safety, stated that, "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".

Respondent's position in relation to the 2023 Incident

1. The Respondent relied on a report from the Police Computerised Operational Police System (COPS) database, namely COPS Report Event Ref No: XXX285 (2023 COPS Report) that was created on 25 August 2023 in relation to various events around that time (2023 incident). It was not disputed by the Applicant that, as set out in that COPS Report, at about 7 pm on 24 August 2023, the Applicant had been home at his rural property (the property), had been drinking alcohol, and was intoxicated. The Applicant then became upset thinking about a legal matter involving family members. It was not disputed that the Applicant sent a text message to various of his sisters (text message) and that as a consequence of that text message, one of his sisters contacted police concerned about the Applicant's welfare.
2. The text message from the Applicant relevantly included the following (sic):

"...& Sisters thanks for the support-not. Obviously you don't care but I am over all this shit in life & struggling big time. Did I have to tell you that.? I can't take this any longer...I'm not after your fckn sympathy...but no acknowledgement from you knowing mental health probs? Don't bother now cause you'll get no response from me you have all missed the opportunity for consultation/counselling & that in itself makes a statement. Im just sobbing & praying for a tomorrow..."

1. Police attended the Applicant's property at around 8 am on 25 August 2023 in response to the contact from the Applicant's sister. The 2023 COPS Report records that "Police spoke with the [Applicant] who admitted to police that he had been feeling suicidal the night before but was feeling better. The [Applicant] stressed that he would never actually kill himself as he loves his family and wouldn't put them through it."
2. The attending police advised the Applicant that they would be seizing his firearms and suspending his firearms licence. Police then requested an ambulance, suspended the licence, and seized nine boxes of ammunition as well as three firearms. A safe storage inspection was carried out and the Applicant's metal firearms safe was found to be compliant. The 2023 COPS Report records that the Applicant was then conveyed to a local hospital (hospital) by ambulance and involuntarily scheduled under s 22 of the Mental Health Act 2007 (NSW) (Mental Health Act).
3. The Respondent also relied on documents produced by the hospital in response to a summons (part exhibit R2). The documents produced indicated that they contained sensitive material. For the purpose of this application for review, I have referred only to the relevant portions of the documents.

1. The Applicant accepted most of what was recorded in the 2023 COPS Report. He acknowledged in his oral evidence before the Tribunal that what he had done was stupid and that he was heavily intoxicated when he sent the text message to his sisters. He said that he had tried to call his sisters the previous day, but they had not called him back and he had needed someone to talk to. The Applicant stated that his text message was ambiguous, that he had had a lot to drink and that he would never do it again.
2. When asked when the text message was sent, the Applicant said that the message was "stupid", "silly" and "ambiguous". He then said that it was sent at 1.38 am and that "no wonder" he had a headache the next day. The Applicant's evidence was that he could not remember "doing" the message and became aware of it when the police officer showed it to him the next day. When asked if he had told the police that he was suicidal, the Applicant responded by saying, "I'm gonna deny that" and that he would never do that to his kids or grandkids. He said that if there was a time when he would have considered suicide it would have been in 2015 when he suffered from a major depression. He stated that in relation to the 2023 incident, to the best of his recollection he did not use the word suicide to police.
3. In the report from Mr Kruger-Davis dated 3 December 2023 (first report) (part exhibit R1), Mr Kruger-Davis refers to having asked the Applicant to explain a reference in a letter dated 23 October 2023 from the Respondent that the Applicant had admitted in relation to the 2023 incident that he "had been feeling suicidal the night before". Mr Kruger-Davis records that the Applicant acknowledged sending a text to his sister that was ambiguous, but that he was angry about the situation he was caught up in, but not his life and that he denied admitting to police that he was suicidal the night before. It was noted that the Applicant highlighted this sentence in the letter because "he doesn't know where this statement could have come from."
4. The Applicant adduced a letter from Ms Mills, his former wife, who has known the Applicant for the last 28 years. In that letter, she stated that she was "confident the text had absolutely nothing to do with suicidal intentions and whilst I acknowledge the ambiguity of poorly chosen words, [the Applicant] was basically telling his...sisters to "pee off" and he wanted nothing further to do with them." She stated that the Applicant rang her following discharge from his mental health assessment at the hospital and "said he'd done a stupid thing in sending the text in the first instance and regretted doing so."
5. The Applicant also relied on the Final Report document which was a "MH Discharge/Transfer Summary" relating to the Applicant, which was prepared by Mr Wright, Psychologist and printed by him on 9 September 2023.

1. The 2023 COPS Report was created by Officer James Bellenger. He did not provide a statement in this matter or give oral evidence before the Tribunal.
2. It was not disputed that after police attended the property on 25 August 2023, that the Applicant was conveyed by ambulance to the hospital. The Ambulance Electronic record from 25 August 2023 (ambulance record) indicates that at that time the Applicant "denies current suicidal ideation or self harm".
3. A copy of the "Request by a member of NSW Police Force for Assessment of a Detained Person relating to the Applicant" under s 22 of the Mental Health Act (s 22 Form) that lead to the involuntary scheduling of the Applicant was contained in the material obtained under summons from the hospital (part exhibit R2). The s 22 Form indicated that police arrived at the hospital at 9.10 am on 25 August 2023. The boxes on the s 22 Form have been ticked to indicate that the Applicant had "recently attempted to kill himself/herself or that it is probable he/she will attempt to kill himself/herself or any other person" and "would benefit from being dealt with under the Mental Health Act, rather than otherwise in accordance with law." Under the heading "Current Behaviour", the box next to "Threatening suicide" has been ticked.
4. On the next page, under the heading "Description of the Circumstances that led to Apprehension of this person" a handwritten history of the matter has been recorded (Description), including that the Applicant had previously been diagnosed with major depression and referring to the text message sent by the Applicant. The Description concluded with the words "When police attended, the patient admitted that he had been feeling suicidal". This document and Description are dated 25 August 2023 and purports to have been completed and signed by Officer Bellenger, a Police officer.
5. Under s 39 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself of any matter in such matter as it thinks fit, subject to the rules of natural justice. Having regard to these provisions, I am satisfied that that the s 22 Form was completed and signed by Officer Bellenger in his role as a police officer on 25 August 2023.
6. The "Diagnosis" recorded in the hospital records for the Applicant on 25 August 2023 is "Suicidal ideation" and "Mental health problem" and the ambulance and hospital records from 25 August 2023 relating to the Applicant include various references to the Applicant denying suicidal ideation.
7. The hospital admission summary progress notes by the Resident Medical Officer include the following note relating to the Applicant under the heading "PC":
   • "BIBA under sec 22 with SI with ETHO- messaged sister 2100 with thoughts."
8. I am satisfied that this and other references to "SI" within the hospital records is a reference to suicidal ideation.
9. Under the heading "HPC", the summary progress noted by the Resident Medical Officer relating to the Applicant include the following:
   • "Feeling stressed & had an emotional breakdown following a conversation...yesterday";
   • "He had a half bottle of spirits yesterday as he was worried...";
   • "[Applicant's] sister ...informed police about his SI";
   • "has access to firearms but states won't act on his thoughts"
   • "Has ongoing stressors at home...not himself but effects him directly emotionally"; and
   • "Denies suicidal ideation or Homicidal ideation".
10. The Progress Notes completed by the Nurse Practitioner on 25 August 2023 includes a reference to "man BBP overnight threatening suicide whilst intoxicated with alcohol". The notes also refer to the Applicant reporting that he is not a big drinker and "usually has two before he goes to bed". The Applicant is recorded as stating "he was angry and drank far too much alcohol, understands why he has had firearms removed", "he reports he has been a bit down over past few months but not depressed...states functioning well" and "He is not suicidal today, we have discussed him going to GP for MHCP for psychology after he reported police told him he would need a psychologist report to get his firearms back". The impression recorded was "resolved alcohol intoxication in a man with a background of depression and current complex psychosocial stressors".
11. Under the heading of details of "History of Presenting Problem", the hospital Assessments record refers to the contents of the Description included in the s 22 Form, including "When police attended the patient that he had been feeling suicidal". The Assessment document also includes the following:

"...he had been drinking last night, more than he usually does

He admits to sending the message, stated that he has too much alcohol yesterday

Strongly denies having suicidal ideations

...

States that he would never do this to his family as he known how this would affect them

Stated that if he was going to kill himself he would have done it in 2015-16 when he was depressed...

he understands that sister was worried about his safety thus called the police to check on him

stated that he is not depressed but rather anxious about his health issues

...

pt is upset as the police has removed the guns (he had licence for them)

..."

1. Under the heading "Formulation and Diagnosis" in the Assessments record, the following has been recorded:

"...on assessment strongly denied suicidal, DSH, homicidal ideations

no obvious symptoms of major depression. Not detainable under MHA 2007 on this presentation.

Discharged with COMHET follow up as the least restrictive care on this presentation."

1. Under the heading "Immediate Action Plan", which was said to have been discussed with a doctor and with the Applicant, indicates that the Applicant is not for "MH" admission on this presentation and "psych review to rescind the section". It includes the following points:
   • "COMHET follow up to monitor mental state and risk."
   • "encouraged to seek counselling".
2. The notes indicate that the Applicant "agrees with plan".
3. It was not in dispute that following an examination, a Form 1 under the Mental Health Act was completed to the effect that the Applicant was not mentally ill or a mentally disordered person. It was not disputed that the Applicant was discharged from hospital on 25 August 2023. The observations in the Form 1 include that the Applicant had "complex stressors" and referred to "counselling" and concluded that there would be "less restrictive care in the community". This is consistent with the Assessments notes that the Applicant would be discharged with COMHET follow up as the least restrictive care on this presentation.
4. The Final Report (part exhibit A1) indicates that it was completed by Mr Wright, Psychologist, from the local COMHET team. In the Summary of Care section, it is recorded that the Applicant had presented to the hospital "with suicidal ideation and ETOH intoxication. On assessment he denied any further thoughts to end his life".

1. Having regard to the evidence before the Tribunal, I accept that the Applicant was emotionally affected by the legal matters relating to his family and that as a result, he had become heavily intoxicated on the evening of 24 August 2024. When his sisters did not return his calls, he sent the text message. Whilst the Applicant acknowledged in evidence that the text message was sent at 1.38 am, which would have meant it was sent on 25 August 2023, it appears from the documentary evidence that the text message was more likely sent at 10.01 pm on 24 August 2023, before being forwarded at the later time.
2. I have had regard to the letter from Ms Mills (part exhibit A1). I accept that she has remained close friends with the Applicant, and that her letter includes both a positive assessment of the Applicant's character and an interpretation of the text message. Whilst I accept the view expressed by both the Applicant and Ms Mills that the text message is somewhat ambiguous in that it does not specifically refer to suicide, I am satisfied that it makes specific reference to "mental health problems" and that the Applicant refers to "struggling big time" and "sobbing & praying for a tomorrow".
3. In the circumstances, I do not accept Ms Mill's characterisation of the text message as having "absolutely nothing" to do with suicidal intentions or that the Applicant was basically telling his sisters to "pee off". It my view, the text message is consistent with the Applicant feeling suicidal and it is evident that the receipt of the text message caused one of the Applicant's sisters to contact police due to her concerns for his welfare.
4. I am satisfied that the Applicant told staff and medical officers at the hospital on 25 August 2023 that he did not "currently" have suicidal ideation and that he denied any suicidal ideation to ambulance or hospital staff on that day. In my view this is not inconsistent with the Applicant having felt suicidal the previous night, and at the time that he sent the text message, and it is entirely consistent with the record in the 2023 COPS Report that the Applicant told police that he had been feeling suicidal the night before but was feeling better. Whilst the Applicant told police and hospital staff that he would never "actually" kill himself, and gave evidence to similar effect, this statement is not inconsistent with the Applicant having earlier had suicidal thoughts but not having acted on them.
5. Whilst Officer Bellenger did not give evidence before the Tribunal, the 2023 COPS Report was created by him on the day that he attended the Applicant's property and refers to the Applicant telling police that he had been "feeling suicidal" the night before. This report of the Applicant's admission is referenced by Officer Bellenger in the Description in the s 22 Form, in the ambulance records and in the hospital records. It is apparent that the actions by police in seizing the Applicant's firearms, suspending the Applicant's firearms licence, requesting an ambulance to convey the Applicant to hospital and completing the s 22 Form are all consistent with the Applicant having admitted to feeling suicidal the night before.
6. The Applicant denied to Mr Kruger-Davis that he had made this admission and stated that he did not know where this statement came from. The Applicant's evidence before the Tribunal was that to the "best of his recollection" he did not use the word "suicidal" to police, and that he would have to "deny" that he told police that he was feeling suicidal as he would never do that to his kids or grandkids.
7. It is clear that "feeling suicidal" is not the same as acting on such feelings and there is no suggestion that the Applicant made any attempt to commit suicide or to self-harm, either in August 2023 or at any time, and I am satisfied that he did not do so.
8. In my view, the Applicant's denial to Mr Kruger-Davis and to the Tribunal that he had admitted to feeling suicidal the night before, should be seen in the context of his acknowledgement that at the time of the 2023 incident: he had been going through an emotional time; was heavily intoxicated the night before he spoke to police; had a headache as a consequence; and that he did not have a recollection of sending the text message until police showed it to him on the morning of 25 August 2023.
9. Having regard to all of the evidence in this matter, including the wording of the Applicant's text message, I prefer the contemporaneous evidence of Officer Bellenger to that of the Applicant, namely that the Applicant admitted to police on the morning of 25 August 2023 to feeling suicidal the night before and which statement is recorded in the 2023 COPS Report, the s 22 Form and in various ambulance and hospital records. Accordingly, I am satisfied that the Applicant told police that he had been feeling suicidal the night before but was feeling better when speaking to police at around 8 am on 25 August 2023 and that he indicated that he had no suicidal ideation when speaking to ambulance and hospital staff later that day.
10. This finding is consistent with the reference by Mr Wright in the Final Report to the Applicant presenting to hospital with suicidal ideation and intoxication but on assessment, denying "any further thoughts to end his life" (bold added).

1. It was not disputed by the Applicant that he had been diagnosed with major depression in 2015 and the 2023 COPS Report indicates that the Applicant disclosed this to police on 25 August 2023. He also advised police that he was not currently medicated for that condition and had not been seeing a psychologist or counsellor.
2. The s 22 Form, ambulance and hospital records relating to the 2023 incident also make reference to the Applicant's previous mental health history and it is apparent from these documents that the Applicant reported that his diagnosis of depression occurred following his divorce and in the context of various work issues. In the hospital records, the Applicant is reported as stating that whilst he had not been psychiatrically admitted for his depression and did not have suicidal thoughts, he had been under the care of a psychiatrist and psychologist for a time, and that he remained on medication for four years until he had weaned himself off it two years previously. The Hospital Progress Notes from the Nurse Practitioner on 25 August 2023 refer to the Applicant's report that "he was treated with dothep with effect remained on meds for 4 years..."
3. The Applicant adduced a letter from Dr Mark Rowe dated 26 October 2015 (part exhibit A1) to the Pharmaceutical Services Branch of the NSW Department of Health, as it was then known. In that letter, Dr Rowe indicates that at that time, the Applicant had been his patient since August 2015 and had been on sick leave "for many months". Dr Rowe recorded that he had diagnosed the Applicant as suffering with a "probably unipolar melancholic depressive illness that has arisen in the context of significant work stress and changes within his work environment". Dr Rowe opined that the Applicant also had some features of a "generalised anxiety disorder" and that the Applicant had been seeing a psychologist to assist with some of the psychological issues that were contributing to his presentation.
4. The letter sought approval to prescribe a psychostimulant to the Applicant and referred to side effects from other antidepressant medications that the Applicant had been on. Dr Rowe indicated that prior to contact with him, the Applicant had "trialled the SSRI Sertraline, which he had to cease due to side effects, and the SNRI Duloxetine..." Dr Rowe went on to state that after ceasing the Duloxetine, he "switched" the Applicant to the "tricyclic antidepressant Dothiepin" at an initial dose which the Applicant found "too sedating" and then on a reduced dose.
5. No other reports or records from Dr Rowe were provided to the Tribunal in these proceedings and the only material from the Applicant's GP was a referral to Mr Kruger-Davis dated 7 November 2023 which is included in Mr Kruger-Davis' first report. This referral makes reference to "P/H work related depression and adjustment disorder post relationship separation". I have assumed that "P/H" is a reference to past history. The referral also refers to "Depression-Major" in 2015 and to an allergy to "Zoloft". The earliest condition recorded in the referral is in 2004 and there is no reference to any other mental health conditions.
6. The Medicare records produced following a summons by the Respondent (part exhibit R2) indicate that the Applicant was prescribed Duloxetine by his GP between June 2012 and August 2015. The Medicare records indicate that the Applicant was then prescribed Dosulepin (Dothiepin) by his GP between 4 December 2015 and 1 April 2021.
7. In his evidence before the Tribunal, the Applicant acknowledged the diagnosis of major depression and said that it was "probably right" that he started taking antidepressant medication for that condition in around December 2015. He agreed that he continued taking it until approximately April 2021, saying that he was not qualified to say if he should have been taking it. The Applicant confirmed that he had taken two years of sick leave for his depression and that he had held a firearms licence during that entire time.

1. There is limited documentary material in relation to the Applicant's previous mental illness or details about it. It is apparent from Dr Rowe's letter that the Applicant reported a "significant down turn in mood" from May 2015, that he became Dr Rowe's patient in August 2015 and that he was still his patient in October 2015. Dr Rowe's letter records that "[i]mportantly", the Applicant had been seeing Ms McIntyre, a psychologist, to assist with some of the psychological issues contributing to the Applicant's presentation. On the evidence before the Tribunal, it is not clear how long the Applicant was under the care of Dr Rowe or Ms McIntyre.
2. Whilst Dr Rowe records that he had diagnosed the Applicant with a "probably unipolar melancholic depressive illness" with some features of a "generalised anxiety disorder", the referral from the Applicant's GP records the condition of "major depression" in 2015.
3. There appears to be no reference to the prescribing of Zoloft or Sertraline to the Applicant in the Medicare records before the Tribunal, but as referred to above, do refer to the prescribing Duloxetine and Dosulepin (Dothiepin) to the Applicant. The prior prescribing of Duloxetine to the Applicant and the change of medication to Dosulepin in 2015 is consistent with the letter from Dr Rowe. However, whilst Dr Rowe refers to the Applicant first reporting a downturn in mood in May 2015, it appears from the Medicare records that the Applicant commenced taking the antidepressant Duloxetine in June 2012, some three years before. No further records relating to the prescribing of this medication were before the Tribunal and the Applicant did not provide evidence relating to his use of this medication in the period between 2012 and 2015 or the reason that it was prescribed.
4. Whilst the documentary evidence is scant, I am satisfied from the totality of the evidence, and in particular the evidence from the Applicant, that he was diagnosed by Dr Rowe, a psychiatrist, with a significant depressive illness in 2015 in the context of a relationship breakdown and significant work stress, and that this illness necessitated the Applicant taking some two years of sick leave, most likely between around mid-2015 and mid-2017, at which time he retired from full time work. I am satisfied that this significant depressive illness was a mental illness and that the Applicant continued taking antidepressant medication for this condition, which was prescribed by his GP, from 2015 up until April 2021.

1. The Applicant's Firearms Licencing History (part exhibit R1) records that the Applicant was issued with a category ABD licence on 15 October and that the category D licence expired on 15 October 2018. The Applicant was re-issued with a category AB licence on 15 October 2018. A copy of the Applicant's Re-Application for a Personal Firearms Licence (2018 application form) that was signed by the Applicant on 20 August 2018 was in evidence before the Tribunal (part exhibit R1).
2. At Part F of the 2018 Application, under the heading "Personal History", an "X" has been placed in the "NO" box next to the question at paragraph "e", "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"?"
3. In his evidence, the Applicant acknowledged the importance of reading the 2018 application form and that he understood the need to be honest and transparent in completing the form. The Applicant was then shown the 2018 application form and acknowledged his signature on the document. He also stated that his answer to the question at paragraph "e" of Part F was correct. The Applicant agreed that he been taking antidepressant medication between 2015 and 2021 but said that he was not being "treated" for a mental disorder or illness in the 12 months prior to 20 August 2018, the date of his 2018 application form. The Applicant said that he was not being "directed" to take the medication, was not seeing a psychologist or psychiatrist, and took the medication out of "regular habit". The Applicant confirmed that the antidepressant medication was prescribed to him but said that it was his general practitioner (GP) who was prescribing it and not a psychologist or psychiatrist. The Applicant agreed that he regularly attended his GP for this and other prescriptions.

1. Section 70 of the Act provides that is an offence to make a statement in connection with an application under the Act, that is false or misleading in a material particular. The maximum penalty for such an offence is imprisonment. The Applicant has not been charged with, or convicted of, such a matter. The Tribunal, however, can consider circumstances that would amount to a breach of the firearms legislation, regardless of whether the Applicant has been convicted of an offence relating to such a breach. 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 at [30].
2. I have already made findings about the Applicant's previous medical conditions, including that the Applicant was diagnosed with a mental illness in 2015 and continued taking antidepressant medication prescribed for this condition by his GP up until April 2021. Having regard to the relevant question in the 2018 application form, it is apparent that the question is limited to whether or not the Applicant had been "referred or treated" for a mental or nervous disorder or illness in the 12 months prior to 20 August 2018. I accept that, in the absence of any evidence to the contrary, as of 20 August 2018, the Applicant had not been referred to, and was not being treated by, a psychiatrist or psychologist for a mental illness during the previous 12 months.
3. It was however conceded by the Applicant that he continued to take antidepressant medication up until April 2021 that was prescribed by his GP but was not being "treated" for a medical illness or disorder in the relevant period as he was not being directed to take the medication and it was essentially a "regular habit".
4. Whilst I accept that the Applicant was not "directed" to take antidepressant medication, he acknowledged that he attended his GP for the purpose of obtaining a prescription for this medication as well as for other prescriptions. It is clear that in NSW a person can only be directed to take medication in prescribed circumstances, such as where there is a Community Treatment Order in place or where a person is receiving involuntary treatment under the Mental Health Act. Whilst the Applicant did not fall into such a category between August 2017 and 2018, the relevant question in the 2018 Application makes no reference to having been "directed" to take medication but refers to having been "referred" or "treated" for a mental illness.
5. I have already accepted that there is no evidence that the Applicant was "referred" for treatment in the relevant period and the issue for determination is whether or not the Applicant was "treated" for his mental illness in the 12 months before completing the 2018 application form. In my view, the word "treat" is not a technical term and is relevantly defined in the Macquarie Dictionary (Online Edition) as "to deal with (a disease, patient etc,) in order to relieve or cure."
6. Whilst the Applicant said in cross-examination that he was not qualified to say if he "should" have been taking the medication between 2015 and 2021, it is apparent from his letter of 26 October 2015 that Dr Rowe, the psychiatrist who was then treating the Applicant, had "switched" the Applicant from his previous medication to the antidepressant medication Dothiepin, in order to treat the Applicant's mental illness and as a psychiatrist he was clearly qualified to do so. The Applicant acknowledged that he went to his GP to obtain this medication, and I have found that he prescribed Dothiepin to the Applicant between 2015 and 2021. I am satisfied that as a GP, he was qualified to review the Applicant and to prescribe medication. Accordingly, I am satisfied that both Dr Rowe and the Applicant's GP were qualified to determine whether the antidepressant medication prescribed for the Applicant would relieve or cure his previously diagnosed mental illness.
7. I am satisfied that the Applicant's GP prescribed the antidepressant Dothiepin to the Applicant for his mental illness, including in the 12 months prior to the 2018 application form being completed and that this constituted treatment for the Applicant's mental illness. It follows that I am satisfied that in the 12 months prior to the Applicant completing the 2018 application, that the Applicant had been treated for his mental illness and that his response to this question was objectively false.
8. In light of the evidence relating to the 2023 incident which has been referred to above, there can be no doubt that the Applicant was aware that he had been diagnosed with a mental illness in 2015 and that he was aware that he had taken antidepressant medication for this condition. The police and hospital records contain a number of references to this from the Applicant, and as previously referred to, there is specific reference in the hospital records from the 2023 incident to the Applicant being "treated with dothep". I am satisfied that dothep is the same medication as Dosulepin (Dothiepin).
9. The Applicant also referred to "mental health problems" in his text message to his sisters. In his character reference of 1 May 2024, Mr O'Grady said that during the 21 years that he had known the Applicant, he became "aware of some serious mental health challenges that [the Applicant] faced from time to time".
10. It is also evident that the 2018 application form was the first renewal application that the Applicant had completed for his firearms licence after being diagnosed with a mental illness in 2015. In light of the reported significant effects that this mental illness had on the Applicant, including some two years of sick leave and having side effects from his antidepressant medication, including feeling "too sedated", it would be thought that the Applicant would have had his diagnosis and ongoing medication at the forefront of his mind when completing the 2018 application form.
11. When cross-examined, the Applicant did not acknowledge having provided false information in his 2018 application form and gave evidence as to why he believed that his response was correct. It was submitted on his behalf by Mr Kable, that there was no intention by the Applicant to deceive and that the Applicant had answered "YES" to a previous question in the 2018 Application from and had disclosed further information, even though he was not required to do so.
12. In circumstances where I am satisfied that the Applicant knew as of 20 August 2018 that he had been previously diagnosed with a mental illness, and where he knew that he was continuing to take the antidepressant Dothiepin for that condition and which was prescribed for him by his GP, I am satisfied that he knew that he had been treated for a mental illness in the past 12 months and accordingly that he knew that his response to this question in the 2018 application form was false.
13. In Saxby v Commissioner of Police [2021] NSWCATAD 275, Senior Member Naida Isenberg made a number of observations in relation to the provision of false and misleading information under the Act and said at [74]-[76]:

"74. If the Applicant had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. Furthermore, on that basis alone, it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence: see Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240. It is difficult to conclude that the Applicant did not knowingly intend to provide false information. The medical evidence shows a pattern of his requiring detailed psychiatric management. There can be no contention that it was an error, because his need for psychiatric intervention, sometimes as frequently as weekly, could not possibly have merely slipped his mind.

75. As I said recently in Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18] one of the objectives of the Act is the functioning of a proper system of firearms licensing, which necessarily depends on applicants providing true and correct information in a comprehensible manner. In Kogias v Commissioner of Police [2020] NSWCATAD 297 the applicant, who had failed to disclose that he had previously had his licence revoked, said that his incorrect statements in the application were errors and were not intentional. Nonetheless the Tribunal in that matter took the view that the applicant knew the form he had completed was incorrect. Similarly, in Hunt v Commissioner of Police [2021] NCATAD 58 the Tribunal found the applicant was aware that he had incorrectly completed the form in relation to a suicide attempt within the preceding 10 years.

76. In Hook v Commissioner of Police [2020] NSWCATAD 250 the applicant had responded "no" to a question whether in the past 10 years he had been the subject of an AVO and had explained that he had thought the question was asking about current AVOs and that he must have misread the question. Professor Walker SM considered, at [96], that the applicant's explanations were less than impressive and at best suggested a degree of carelessness in completing an official document and that the meaning of the question was clear enough if he had taken the trouble to read it properly. The Senior Member found the applicant in that matter to be, essentially, unsophisticated and probably had not been involved much legal form-filling. His incorrect answers resulted from a combination of carelessness and inexperience and were not knowingly false or misleading within the meaning of s 70. The Senior Member also contrasted the matter to Constantin v Commissioner of Police, New South Wales Police Force, [2012] NSWADT 172 (Constantin), where the applicant had knowingly concealed a Queensland conviction for armed robbery."

1. In the decision in Cook v Commissioner of Police [2021] NSWCATAD 204 (Cook), Senior Member Naida Isenberg said at [36]:

"36. If Mr Cook had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. As I said very recently in Balle v Commissioner of Police [2021] NSWCATAD 187(Balle) at [14] it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence."

1. I agree with the statement by the Tribunal in Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18] that, "One of the objectives of the Act is the functioning of a proper system of firearms licensing, which necessarily depends on applicants providing true and correct information in a comprehensible manner."
2. Having a mental illness is not an automatic bar to the provision of a firearms licence but may be a factor in determining whether there would be any real or appreciable risk to public safety if such a licence was to be issued. In the current matter, the Applicant was issued with a category AB licence for a period of five years from 15 October 2018 on the basis of the Applicant's 2018 application form. I am satisfied that as a consequence of the false statement within that application form, the Respondent was not aware that the Applicant was being treated for a mental illness at that time and as a consequence was not able to give appropriate consideration to this issue or to seek further information from the Applicant to determine what, if any impact it may have had on the issue of the requested licence.
3. Accordingly, in the circumstances of this matter, I agree with Senior Member Naida Isenberg's comments at [36] in Cook that "it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence."

Further evidence relating to the Applicant's mental health

1. It was acknowledged in the submissions for the Applicant that he had mental health issues in 2015 which were addressed and the Applicant sought suitable treatment for those issues at the time. It was submitted however that as of the date of the hearing, the Applicant had no mental health issues and accordingly there was no real or appreciable risk if he was to be granted a licence to use and possess firearms.
2. In support of this contention, the Applicant relied on two expert reports from Mr Kruger-Davis (first report and second report), a psychologist with over 35 years of experience. Mr Kruger-Davis concluded in the reports that in his professional opinion, the Applicant "is very unlikely to pose a threat to the public or himself, if he were possess or use firearms." As referred to previously, Mr Kruger-Davis gave evidence by telephone and was cross-examined by Mr Deards.
3. The first report from Mr Kruger-Davis indicates that he spoke to the Applicant on 2 November 2023 who advised him that he was seeking a mental health assessment that had been requested by the NSW Police Firearms Registry and the Applicant briefly outlined the issues. Mr Kruger-Davis then provided the Applicant with several self-reporting questionnaires which the Applicant returned to him on 7 November 2023, together with correspondence from the Firearms Registry, a signed medical authority, and a referral from his GP. Copies of these documents were provided with Mr Kruger-Davis' first report.
4. Mr Kruger-Davis indicated that he then spoke with the Applicant on 20 November 2023 and organised an appointment for 21 November 2023 via video call.
5. Mr Kruger-Davis records that he conducted a clinical interview, via telephone, with the Applicant on 17 November 2023 and completed a mental status examination, took a detailed history and a suicide risk assessment. Mr Kruger-Davis indicated that the Applicant was reluctant to download an application on his telephone to conduct a video call as he said that he had been scammed in the past and that it cost him money and he was now overly cautious but that he was happy to do the interview over the phone. In the body of the report, Mr Kruger-Davis refers to the interview as having been conducted on 21 November 2023.
6. It is apparent from the first report, that other than the documentary material referred to above, Mr Kruger-Davis relied entirely on the Applicant's self-reporting for that report. Mr Kruger-Davis has included a reference in the first report to the Applicant stating, "that he has never had any suicidal thoughts."
7. In the second report from Mr Kruger-Davis dated 28 March 2024, Mr Kruger-Davis indicates that he was provided with a copy of the Final Report. He also indicates that he had asked the Applicant to contact the psychologist that he saw in 2015 and request a copy of his clinical notes. Mr Kruger-Davis reports that he received an email reply from the Applicant which indicated that due to the "Statute of Limitations expiring" he had been advised that his notes had been destroyed. Mr Kruger-Davis asked the Applicant if he was still taking the medication prescribed by Dr Rowe in his letter dated 26 October 2015 and the response from the Applicant was recorded as follows:

"...no I'm no longer taking the medication prescribed by Dr Rowe having weaned myself off the tablets in 2019. Also, I've apparently misled you in relation to Zoloft which I was taking in early 2000 as a means to cease smoking. It worked remarkably well but I had to cease due to an allergic reaction. In essence I'm not on any antidepressants and don't feel the need to do so."

1. In his evidence before the Tribunal, Mr Kruger-Davis confirmed that he had spoken with the Applicant by telephone for the purpose of preparing the first report and said that whilst it is better to see the client, listening to their tone is the most important, and that Lifeline counsellors work by phone and do not see the patient. Mr Kruger-Davis conceded that there was no reference in the first report to the Applicant having taken medication but stated that at the time that he had spoken to the Applicant, the Applicant was no longer taking it. Mr Kruger-Davis expressed the view that this medication was not relevant to his assessment of the Applicant in 2023 but acknowledged that perhaps he should have recorded that the Applicant had been taking medication. Mr Kruger-Davis also conceded that it would be important to include a reference to practitioners seen by the Applicant and that he would record this if it was reported to him.
2. Mr Kruger-Davis said that it would not have changed his opinion if he had been told that the Applicant was taking medication up until April 2021. He said that the Applicant had gone to hospital and the discharge summary indicated no psychological issues. Mr Kruger-Davis stated that in his view, the 2023 incident was a short-term reaction to events and was not helped by the Applicant's use of alcohol at the time. He stated that the evidence from the Discharge Summary was that the Applicant did not present with ongoing depression. He noted that the Applicant was allowed to drive a car, which was just as dangerous as access to a firearm.

1. It is apparent that in preparing his reports in this matter, Mr Kruger-Davis did not have access to the 2023 COPS Report or to the hospital records that were in evidence before the Tribunal and that the only documentary material provided to him about the 2023 incident was the Final Report which was written Mr Wright after the Applicant's discharge from the hospital. It is possible in these circumstances, that Mr Kruger-Davis understood the Final Report to relate to the Applicant's discharge from hospital rather than from COMHET.
2. I am satisfied from the Form 1 and the Assessments notes from the hospital record that the Applicant was found to have "no obvious symptoms of major depression" and that he was found "not detainable" under the provisions of the Mental Health Act on this presentation. I do not accept however, that practitioners at the hospital had no concerns about the Applicant or that he was not provided with support or follow up once he was discharged from hospital. It is clear from the hospital records, that the Applicant was discharged from hospital on the basis of "COMHET follow up to monitor mental health state and risk" and that he was "encouraged to seek counselling" and that the Applicant agreed to this plan.
3. It is evident from the Final Report, that Mr Wright, a psychologist with COMHET, did follow up the Applicant by telephone in accordance with that referral after the Applicant's discharge from hospital. It is apparent from the Summary of Care recorded in the Final Report that the Applicant told Mr Wright that he planned to see his GP for a referral to a Psychologist and that he declined the need for further COMHET follow up.
4. I am satisfied that the Applicant's referral was discussed at the COMHET clinical team meeting on 28 August 2023, three days after the Applicant's discharge from the hospital, and he was then reviewed for discharge from COMHET on the basis that there "were no acute risks identified, client planned to link with a Psychologist and he declined COMHET follow up".
5. Whilst the Final Form refers to a "Results Review" on 9 September 2023, and to "HoNOS", I am not satisfied on the basis of the Final Report that a Health of Nation Outcome Scale (HoNOS) was completed by Mr Wright.
6. I am satisfied that the Applicant told Mr Wright that he planned to see his GP for a referral to a psychologist, and this formed one of the reasons for discharging him from COHMET. However, whilst the Applicant apparently made an appointment with the GP clinic's psychologist, his reason for making the appointment was to obtain a report for the Firearms Registry, and he did not attend as that psychologist did not provide such reports. I am satisfied that there is no evidence that the Applicant has attended any counselling following the 2023 incident or had seen any psychologist, other than Mr Kruger-Davis, and that the purpose of that telephone consultation was to obtain a mental health risk assessment for his Application, and not for ongoing treatment.
7. Mr Kruger-Davis's first report refers to the Applicant taking Zoloft for his depressive symptoms and makes no reference to the antidepressant medication taken by the Applicant between 2012 and 2021. It is not clear why there is a reference to the Zoloft, although in the second report, it appears that the Applicant apologised for having apparently misled him on this issue.
8. There was no reference in the two reports from Mr Kruger-Davis or in his oral evidence, to the diagnosis of the Applicant by Dr Rowe of "a probably unipolar melancholic depressive Illness" with some features of "generalised anxiety" and he refers only to the diagnoses of "major depression" and "adjustment disorder" that appear to be taken from the GP's referral letter. Mr Kruger-Davis disputed the diagnosis of major depression and opined that an Adjustment Disorder would be a more appropriate diagnosis for the Applicant's previous mental illness.
9. In circumstances where Dr Rowe, a psychiatrist, treated the Applicant between at least August to October 2015, and where the Applicant's GP has been involved in the Applicant's care for many years, I prefer the diagnoses for the Applicant referred to by those practitioners, In reaching this view, I have had particular regard to Mr Kruger-Davis having only had one telephone interview with the Applicant in forming his views. Mr Kruger-Davis did not refer to having spoken to either Dr Rowe or to the Applicant's GP or to having requested, or receiving, further information from them.
10. I am satisfied that a number of the matters relied upon by Mr Kruger-Davis for his professional opinion, including those referred to above, are inconsistent with the findings that I have made in this matter. This is particularly the case where Mr Kruger-Davis has accepted in relation to the 2023 incident that the Applicant was not feeling suicidal around the time that he sent the text message and that he did not admit having had suicidal throughs to police on the morning of 25 August 2023. I have previously found that the Applicant did make such an admission to police. In light of these various matters, I accord little weight to the evidence of Mr Kluger-Davis or to the professional opinions expressed by him.
11. I accept that the Applicant has held firearms licences over a significant period of time, and I have previously found that he did so without incident. Mr Kable submitted that particular regard should be had to the Applicant having also held a category D licence for some time. Whilst I have had regard to this factor, it is not clear whether the Applicant remained in the required employment for such a licence throughout the entire period from 15 October 2013 to 15 October 2018, given his evidence that he had taken two years of sick leave before his retirement from what appeared to be that role. In any event, on the evidence before me, I draw no adverse inferences in relation to the Applicant's holding of this licence over the period from 2013 to 2018.
12. I have also taken into account the Applicant's genuine reason for having a firearms licence and to the letters from Mr Lo Conte, a veterinarian and from Mr O'Grady dated 14 April 2024. It is, however, an underlying principle of the Act that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety. Accordingly, the considerations of the Applicant's private interests in this matter are outweighed by the public interest.
13. I have had regard to the submissions made by Mr Kable in this matter and to the principles set out in the various decisions that he has referred to. However, every matter is different, and I have had regard to the particular facts of this matter.

1. The Applicant knowingly provided a false response in his 2018 Application form by answering "NO" to the question "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". I have regard to the context in which this false statement was made, namely that it was the first application for a licence that was made after the Applicant's significant mental illness that was diagnosed in 2015, and which on the Applicant's evidence necessitated him taking two years of sick leave from his job, and for which he continued taking antidepressants until April 2021. Having regard to the objects and the principles of the Act, the Applicant's action in knowingly providing false information in his Application leads me to conclude that the issue of a firearms licence to the Applicant at the current time would be contrary to the public interest.
2. As referred to above, the only evidence from a medical practitioner relating to the Applicant's previous mental illness is the letter from Dr Rowe in October 2015 and no further evidence has been adduced by Dr Rowe or the Applicant's GP. Whilst the Medicare records indicate that the Applicant was prescribed antidepressant medication between 2012 and 2015, there is no other evidence before the Tribunal in relation to this prescribing, or the reasons for it.
3. I have found that the Applicant admitted to police that he was feeling suicidal prior to sending the text message, and was discharged from hospital for COHMET follow up to monitor mental state and risk and encouraged to seek counselling. He declined further COHMET assistance and was discharged from that service, at least in part, on the basis that the Applicant planned to link with a psychologist. I have found that the only engagement that the Applicant has had with psychologists since that time is for the purpose of obtaining a mental health risk assessment for the purpose of his Application. It is apparent from the reports of Mr Kruger-Davis that the Applicant denied any suicidal ideation to him and I have found that the Applicant admitted to police that he had been feeling suicidal at the time of the 2023 incident.
4. The firearms licensing regime is not about punishment, but rather it is about identifying the possible risks to the public and then making decisions that are consistent with a need to reduce any risks to a minimum: Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36]. No evidence has been adduced in this matter from any medical practitioner that addresses the Applicant's various mental health issues, including my finding that the Applicant was feeling suicidal when he sent the text message, and which evaluates the Applicant's current risk in relation to holding a firearms licence. In my view, the current state of the evidence does not allow me to be satisfied that there would be "virtually no risk" if the Applicant was to be issued with a licence.
5. This conclusion serves to add further weight to my finding set out above and accordingly, I am satisfied that it is not in the public interest for the Applicant to hold a firearms licence at this time. The Applicant is not precluded from applying for a firearms licence in the future.

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.