Respondent : Senior Constable S Bagley (Acting as Agent)

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Byfield and Commissioner for Consumer Protection [2012] WASAT 217

Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127

Ives and Plumbers Licensing Board [2013] WASAT 125

Maxwell v Dixon [1965] WAR 167

McGee v Chitty [2011] WASCA 125

Minitti v Commissioner of Police [2010] WASCA 198

Minniti and Commissioner of Police [2009] WASAT 223

Murphy and Commissioner for Consumer Protection[2012] WASAT 74

Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64

Rodriguez v Telstra Corp Ltd [2002] FCA 30

Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27

Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996)

The Registrar, Real Estate and Business Agents Supervisory Board v Barnett (Unreported, WASCA Library No 970426A, 26A, 26 August 1997)

Turner v Keegan [2001] WASCA 9

Wignall and Commissioner of Police [2006] WASAT 206

The Tribunal's published reasons comprise an edited version of the oral reasons delivered on 26 September 2014.

1 On 18 January 2013, Mr Mark Anthony Polizzi (applicant), then a member of the Western Australian Police Force (WA Police), made application to the Tribunal for review of the respondent's decision to revoke his firearm licence No 38555968 (reviewable decision). The revocation of the applicant's firearm licence was made on or about 3 January 2013, although the letter of notification is incorrectly dated 3 January '2012' and incorrectly dated as having been served on 7 January '2012'.

2 The applicant's application to the Tribunal for review of the reviewable decision was made pursuant to s 22 of the Firearms Act 1973 (WA) (Firearms Act). The reviewable decision was made pursuant to s 20 of the Firearms Act. The respondent made the reviewable decision upon the basis that the applicant is not a fit and proper person to hold a firearm licence. The Tribunal notes that the applicant's firearm licence conferred on the applicant the authority to use and possess nine firearms, as follows:

3 The applicant sought orders from the Tribunal setting aside the respondent's reviewable decision and directing the respondent to reinstate the applicant's firearm licence No 38555968 (applicant's firearm licence) on the same terms and conditions as at the date of revocation. The grounds of the applicant's application are stated in the application as follows:

1. The [reviewable] decision was based upon circumstances which are unsubstantiated. For example, one complaint was withdrawn, one complaint re safe storage of ammunition I was acquitted on.
2. There are currently two pending matters which are before the Court and I am vigorously defending these.
3. I believe there is no basis for this revocation; rather, an attempt to justify unsubstantiated allegations which were incorrectly applied.
4. Currently there are matters before the Courts. I do not believe it is fair and appropriate to comment, nor base a decision on.

4 Because of the nature of the review hearing, the material that was before the Tribunal exceeded that which was before the original decision­maker by some considerable measure.

5 In making the application to the Tribunal, the applicant has exercised his statutory right to seek review of the reviewable decision pursuant to s 22 of the Firearms Act. The application falls within the Tribunal's review jurisdiction by reason of s 13 and s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). In exercising the Tribunal's review jurisdiction, the Tribunal is to review the reviewable decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and the evidence before the Tribunal at the time of review as provided for by s 27 of the SAT Act.

6 In the exercise of its review jurisdiction, the Tribunal is not limited in its considerations to the material that was before the original decision­maker (see s 27 of the SAT Act), nor to the consideration of the original decision­maker's reasoning alone (see s 27(3) of the SAT Act), although the reasons of the decision-maker may be taken into account. Section 29(1) of the SAT Act provides that all of the functions and discretions conferred on the original decision-maker are conferred on the Tribunal in addition to the powers conferred on the Tribunal by the SAT Act.

7 The Tribunal is not bound to apply the Evidence Act 1906 (WA), the common law rules of evidence, or the practices and procedures of any courts of record (see s 32(2)(a) of the SAT Act) in the course of undertaking the review. The Tribunal, however, is bound by the rules of natural justice (as provided for by s 32(1) of the SAT Act) and is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities (as provided for by s 34(2)(b) of the SAT Act). This more flexible procedure provided by s 32 of the SAT Act, however, does require that Tribunal decisions are made on the basis of evidence that has probative force (Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64, Rodriguez v Telstra Corp Ltd [2002] FCA 30 cited with approval in respect of s 32 of the SAT Act in Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27).

8 Further, the Tribunal is bound to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding, as provided for by s 32(7)(a) of the SAT Act. In conducting the proceeding, the Tribunal is to review decisions fairly and according to the substantial merits of the case, as dictated and required by s 9 of the SAT Act.

Briefly, the respondent's delegate's reasons and comments

9 The reasons of the respondent's delegate, as identified in the letter of notice dated 3 January 2013, identify that the revocation of the applicant's firearm licence was made in accordance with s 21(a)(iii) of the Firearms Act in that the licence could not, because of s 11, be granted if the applicant was applying for the grant at that time. The letter of notice comprises the respondent's reasons for the making of the reviewable decision. The Tribunal notes that the Tribunal orders (in standard form) made on 21 March 2013, that the respondent file in the Tribunal and give to the applicant, inter alia, a written statement of the reasons as part of the bundle of documents to be provided by the respondent pursuant to s 24 of the SAT Act. The respondent's 's 24 SAT Act' bundle of documents does not contain any different statement of reasons for the reviewable decision.

I have formed the opinion, as a result of information received, that you are not a fit and proper person to hold a licence under this Act due to circumstances surrounding recorded incidents of aggressive behaviour and threats of violence displayed by you towards others.

11 No details or particulars of the circumstances or the incidents of aggressive behaviour and threats of violence are articulated in the reasons in that letter.

12 The delegate then proceeds to state in the letter of notice:

I have also taken into account the circumstances surrounding prosecutions against you in relation to offences allegedly committed by you between 4 December 2011 and 3 April 2012, being for acts of violence and offences against the Firearms Act.

13 Again, no details or particulars of the prosecutions are identified in the letter of notice. The delegate's reasons are vague in the extreme and do not disclose any factual matters that were taken into account, let alone the weight that was given when considering those factual matters. Further, the application of those unidentified facts is not considered in relation to the precise statutory scheme in issue. It was not until 7 May 2013, when the respondent filed its statement of issues, facts and contentions, that details or particulars of the circumstances referred to in that letter were identified.

The respondent's statement of issues, facts and contentions

14 Briefly, the respondent's statement of issues, facts and contentions identified various incidents upon which it urged the Tribunal to rely to form the opinion that the applicant is not a fit and proper person to retain a firearm licence. In short, these incidents are as follows:

• An incident that occurred at a Telstra shop in Morley on 3 April 2012, including a complaint by the manager of that Telstra shop to the WA Police and the police incident report for that matter.
• An incident involving the execution of a search warrant of the applicant's home on the evening of 3 April 2012 and the applicant's reported behaviour at that time.
• A charge against the applicant of failing to safe­keep a firearm in contravention of s 23(9)(d)(i) of the Firearms Act, which was dismissed following a hearing of that matter on 12 November 2012 by Magistrate Heaney.
• Alleged facts concerning possession of a prohibited drug in contravention of s 6(2) of the Misuse of Drugs Act 1981 (WA) (MD Act) which was not advanced because the drug in the applicant's possession was not, as at 3 April 2013, a prohibited drug as required by the MD Act,
• Alleged facts concerning the possession of a smoking implement in contravention of s 5(1)(d)(i) of the MD Act which was not advanced for lack of proof.
• An incident on 3 December 2011 resulting in a charge of common assault which was dismissed following a hearing on 13 March 2013 by Magistrate Huston.
• A charge and conviction for failure to observe the requirements of storage of firearms, being a breach of s 23(9)(d)(ii) of the Firearms Act, which conviction was entered on 15 March 2013 following a hearing.
• The applicant's conduct with respect to officers and employees of the respondent who were engaged in the health and welfare unit of the respondent between December 2011 and March 2012, including, amongst other things, an allegation that the applicant said to an officer that if he had had a gun at that time, he would have shot him (being a reference to Senior Sergeant Wayne Bryan).

15 The respondent asserts that the applicant is not a fit and proper person to retain his firearm licence because the applicant's conduct with employees of Telstra in the period 30 March to 3 April 2012, and particularly 3 April 2012, was aggressive. Further, on the evening of 3 April 2012, in the course of being in the company of police officers executing a search warrant of the applicant's home, the applicant displayed behaviour that was erratic and agitated. The respondent asserts that the applicant would not listen to the instructions of attending senior officers and failed to comply with police directives during the course of the search of his home.

16 During the course of that search, the police found a smoking utensil (often used for smoking cannabis) in the applicant's home, 1,381 rounds of unsecured ammunition, and an amount of plant material believed to be synthetic cannabis. Although the applicant was acquitted of the charge of failing to keep the ammunition secure pursuant to s 23(9)(d)(ii) of the Firearms Act, the fact that he had left the ammunition in the unsecured state is relied upon by the respondent. Although the applicant was acquitted of being in possession of a smoking implement and that the contact did not constitute an offence against the MD Act, the fact that the applicant had and was using synthetic cannabis was relied upon to establish that he was not a fit and proper person to retain his firearm licence.

17 The respondent's submissions reasoned that although the plant material was found to be synthetic cannabis, which as at 3 April 2012 was not listed under the Poisons Act 1964 (WA) and prohibited by the MD Act, the synthetic cannabis, in the respondent's submission:

1. is functionally similar to illegal substances, which is primarily responsible for the psychoactive effects of cannabis; and
2. is often linked to mental health issues.

18 As the matter progressed in the Tribunal, it became clear that notwithstanding the nature of the substance being used by the applicant, the fact that he had been inducting the substance (along with a number of other substances) in all of the circumstances gave rise to a question about his fitness and propriety to retain his firearm licence.

19 A charge against the applicant for common assault arising from an incident occurring on 3 December 2011 was relied upon by the respondent as one of the factors upon which the Tribunal should consider the applicant unfit to hold a firearm licence. The applicant was acquitted of the charge, but a finding that the applicant had, in fact, assaulted the complainant - in that case, Ms Coutts (see Magistrate's reasons for decision dated 13 March 2013 at page 28 of the reasons ) was relied upon. In that matter, the learned Magistrate was not satisfied, according to the respondent, that the prosecution had 'negatived' self-defence and provocation. The respondent's statement of issues, facts and contentions, curiously proceeds to identify all of the reasons why no appeal was advanced by the respondent, including an assertion that the victim, Ms Coutts, was a very reluctant witness and that there was no public interest in pursuing the matter when the victim was a reluctant witness and two other witnesses had relocated to Melbourne.

20 The Tribunal considers, ultimately, that the reasons why the appeal was not advanced are irrelevant in this proceeding. The only relevant aspect of this incident is that the learned Magistrate found that the applicant did hit or strike Ms Coutts and did therefore physically assault her. The learned Magistrate simply was not satisfied that there was no defence to the charge.

21 The applicant was convicted for a breach of the Firearms Act on 15 March 2013, being a failure to observe the requirements of storage, was fined $750, and granted a spent conviction.

22 The respondent also relied on the applicant's conduct with respect to how he was dealt with and how he dealt with servants or agents of the respondent in the health and welfare unit of the respondent. At this point, the proceeding diverged from the usual review of a revocation of a firearm licence proceeding conducted the Tribunal. The respondent alleged that the applicant used bad language, was aggressive and rude to staff, was verbally insulting to senior colleagues, threatened legal action against Mr Gerald Erasmus, a psychologist, and the whole health and welfare unit, and was verbally insulting to Mr Erasmus. The respondent also alleged that the applicant said to Ms Donaldson, the Assistant Director for Health and Welfare Services, on 20 December 2012, that if he had a gun at that time ­ that is, on an unspecified date ­ he would have 'shot him' (being a reference to Senior Sergeant Wayne Bryan).

23 Unfortunately, a number of these incidents were not the subject of direct evidence from those who witnessed the events, although the Tribunal has received the statements of those witnesses. Those witnesses were simply not presented for cross-examination. However, the essential facts were not disputed, although the applicant did dispute the context of various statements made by him and others.

24 The respondent's statement of issues, facts and contentions, and the submissions, did not specifically address the provisions of the Firearms Act and how the specific assertions of fact were to be treated as relevant or weighted when found relevant. The respondent's submissions on the law repeated submissions that the Tribunal has seen on a number of occasions, were of a very general nature and failed to address the express words of the relevant provisions of the Firearms Act and how, in this particular case, the allegations of fact were relevant.

25 The Tribunal should also note that, notwithstanding the statement of issues, facts and contentions that was filed on 7 May 2013, on 13 March 2014, almost a year later, the respondent sought to add an additional factor, being a reference to an interim violence restraining order (VRO) issued against the applicant on 6 March 2014. The respondent's submissions on that issue filed on 17 March 2014 relied upon s 14 of the Restraining Orders Act 1997 (WA) (RO Act). It was submitted that s 14(1) of the RO Act prohibited the applicant from 'possessing' a firearm, 'a firearm licence' or obtaining a firearm when a violence restraining order had been granted against that person. The respondent submitted, therefore, that this proceeding was 'futile'. Alternatively, the respondent submitted that the grant of the VRO under the RO Act was sufficient grounds, under s 11(3) of the Firearms Act, for revocation.

1. The respondent submits that irrespective of any determination the Tribunal may make regarding the applicant's fitness and propriety, the applicant is prohibited from being in possession of a firearm by virtue of the issue of the VRO currently in place.

1. In the circumstances[,] the respondent submits that the correct and preferable decision is for the Tribunal to dismiss the application pursuant to s 47 of the SAT Act, on the basis that it lacks substance.
2. If the Tribunal does not agree with the respondent's position, namely, that the VRO in place prohibits the applicant from being in possession of a firearm[,] therefore rendering the matter in this proceeding futile, the respondent would ask the Tribunal to consider s 11(3)(a)(iv) of the Firearms Act 1973 and attribute the appropriate weight to determine the applicant's fitness and propriety in light of the recently issued VRO.

27 Apart from the fact that the interim VRO was challenged by the applicant and ultimately set aside or cancelled on 21 May 2014, the submission, in the Tribunal's view, is misconceived. Whilst the grant of a violence restraining order may be 'sufficient' grounds under s 11(3)(a)(iv) of the Firearms Act to form an opinion that the person, against whom the violence restraining order was made, is not a fit and proper person to retain a firearm licence, the fact of the making of the violence restraining order is not conclusive of the person's fitness to hold such a licence.

28 Further, the RO Act merely concerns 'possession' of a firearm or a firearm licence, or an application for a firearm licence. It does not, of itself, compel or cause the revocation of a validly granted firearm licence. Section 14 of the RO Act is drafted so as to limit the consequential prohibition to the 'possession' of a firearm or a firearm licence. The applicant's 'possession' of a firearm licence is not the issue in this proceeding. The applicant's submission, in the Tribunal's view, is also misconceived.

The applicant's statement of issues, facts and contentions and his position

29 The applicant's position can be summarised as follows.

1. Concerning the Telstra incident on 3 April 2012:
   • the applicant was operating under the belief that his newly acquired mobile telephone had been stolen or that his right to, and of, immediate possession of that telephone and the SIM card inserted into that telephone had been interfered with;
   • the applicant was exercising self-help to retrieve his 'stolen' mobile telephone and SIM card;
   • the applicant was under the influence of benzodiazapene;
   • The applicant had been incorrectly prescribed benzodiazapene by a medical practitioner; and
   • the applicant had more recently been correctly diagnosed with a different mental condition and is now properly and correctly medicated.
2. As to the evening of 3 April 2012 and the execution of the search warrant by the WA Police:
   • the synthetic cannabis found at the applicant's home was used by the applicant for relief of 'previous pain' and to assist him as an adjunct to sleeping;
   • the smoking implement belonged to the applicant and he had utilised the same with synthetic cannabis;
   • the synthetic cannabis was not an illicit drug at that date; and
   • the applicant was acquitted of any charges arising from the search of his home on 3 April 2012 and was awarded $4,400 costs.

1. As to the incident of 3 December 2011 and the common assault charge, the applicant was acquitted of that charge.

1. As to the conviction arising from his failure to observe safe­securing a firearm and ammunition in breach of s 23(9)(d)(ii) of the Firearms Act:
   • the applicant was in transit with his firearms;
   • the applicant does not believe he breached the Firearms Act (notwithstanding the conviction against him on15 March 2013) because he was in transit; and
   • the applicant intended to appeal his conviction of a breach of s 23(9)(d)(ii) of the Firearms Act delivered 15 March 2013. The Tribunal pauses at this point to note that there has been no mention of or reference to any such appeal against that conviction; no evidence that that conviction was set aside and that, in fact, the applicant has been acquitted of that offence. The Tribunal notes that this conviction is the only conviction against the applicant.
2. As to the applicant's dealings with the health and welfare unit of the WA Police:
   • the applicant asserts that the events of 3 April 2012 at the Telstra shop, the subsequent search of his home and his arrest on the evening of 3 April 2012, in addition to other events, led to a workplace dispute between himself and the respondent and a review of him by the health and welfare unit of the respondent;
   • the respondent's health and welfare unit did not treat him fairly and did not recognise his now diagnosed mental condition; and
   • the applicant asserts that the respondent made a decision on 4 April 2013 to remove him as a police officer and that that decision was harsh, oppressive and unfair. This assertion is the subject of the Western Australian Industrial Relations Commission (WAIRC) proceedings, and the Tribunal notes that on 14 April 2014 that appeal was dismissed by the WAIRC.

30 The applicant refers to additional explanations for his behaviour which he says mitigates against him being considered as not being a fit and proper person to retain his firearm licence. First, he says that he was misdiagnosed in 2011 and 2012. Secondly, he says he was prescribed incorrect medication by a series of doctors, including Dr Skerritt, psychiatrist. Thirdly, he says that more recently he has been correctly diagnosed to suffer with Asperger's syndrome, and which he asserts he has suffered all his life. Fourthly, he says that more recently he has been correctly diagnosed as suffering with Attention Deficit Disorder (ADD) and which he asserts he has suffered all his life. Fifthly, the applicant asserts that now his medication is correctly prescribed for his Asperger's syndrome and ADD. These factors, he says, are relevant in explaining that the conduct that the respondent relies upon to support the conclusion that he is not a fit and proper person to retain his firearm licence, and that when these factors are taken into account, the Tribunal should conclude that he continues to be a fit and proper person to retain his firearm licence.

31 The matter was the subject of a number of directions hearings which were necessitated largely because of a dispute over production of documents and hearing dates.

32 The matter was finally heard on 11 and 12 December 2013, and also on 20 March 2014, with additional material being filed as late as 5 August 2014. It is common cause between the parties that the applicant was removed as a police officer of the WA Police on 4 April 2013 and that he had lodged an appeal in the WAIRC shortly thereafter. In short, the applicant and the respondent were involved in two jurisdictions concerning the respondent's decisions made concerning the applicant's conduct affecting his vocation and recreational firearm licence based upon some of the same facts. The respondent's reliance upon events concerning matters that were not the subject of charges or convictions and related to the applicant's behaviour towards health and welfare unit officers, and employees in particular, overlapped the WAIRC proceeding. The respondent did not file a great deal of the material originally that concerned the WAIRC proceeding. The applicant asserted that it was necessary to file that material when the applicant relied on events concerning his involvement with the officers and employees of the respondent's health and welfare unit. The respondent ultimately wrote to the Tribunal on 29 October 2013 asking, in effect, whether the Tribunal wished, or should have, the material sought by the applicant. This letter was most curious. In response to the respondent's request for documents concerning the applicant's relationship with members of the WA Police employed in the respondent's health and welfare unit, the respondent wrote:

Given that the Tribunal is sitting [sic] in the shoes of the decision[­]maker, it is for the Tribunal to determine what is and what is not a relevant consideration in the determination of this matter.

33 The Tribunal had ordered on 21 March 2013 that the respondent was to file in the Tribunal and give to the applicant documents and other material in its possession or under its control which are relevant to the Tribunal's review of the reviewable decision. This order directed the respondent to file and serve documents which objectively are relevant to the Tribunal's review of the reviewable decision. That order was not limited to the provision of documents and material which the respondent intended to rely on in the review of the reviewable decision. That would have been a different order than the one that the Tribunal had made. The Tribunal made an order that is consistent with its obligation under s 32(7)(a) of the SAT Act, to ensure that all relevant documents concerning the reviewable decision are before the Tribunal. The Tribunal made a direction that the respondent was to file and serve a wider range of documents than merely those which the respondent intended to rely on.

34 Further, it is not for the Tribunal to decide which particular documents the respondent should file. The direction was made to file all documents and material relevant to the Tribunal's review. The obligation to disclose and produce documents and material is and should be confined by ascertaining the facts, issues and contentions in dispute. The assessment of the disputed facts, issues and contentions is to be undertaken by consideration of each party's statement of issues, facts and contentions. The respondent opened up for consideration the material that canvassed the dispute between the applicant and other employees and officers of the respondent in the health and welfare unit. Having opened it up, and by relying upon it in the statement of issues, facts and contentions, the respondent was obliged to produce the documents and material concerning those facts and issues to the Tribunal and to the applicant. The respondent resisted this, and the letter dated 29 October 2013 stated:

Attached is a list of documents in the respondent's possession, some of which have not been filed as part of our submissions. The applicant has had access to all of the material contained within this attachment as part of his other proceedings that involve the Commissioner of Police.

35 That statement ignores the fact that the Tribunal was not provided with any of the material referred to in that list, even if the applicant had access to it through another proceeding.

36 The respondent was ordered to file its statement of issues, facts and contentions by April 2013, which was extended and, ultimately, those documents were filed by 7 May 2013. However, for the reasons referred to above, the issue about discovery and what was or was not relevant to these proceedings was not resolved until October 2013.

37 By order dated 18 September 2013, the Tribunal listed the proceeding for hearing on 25 September 2013 for two full days, which was adjourned until 11 and 12 December 2013. The reasons for the delay were:

1. there was a dispute about the documents concerning the relationship between the applicant and officers of the health and welfare unit;
2. the applicant's reliance upon medical evidence to explain his conduct; and
3. the availability of the parties to attend the hearing in the Tribunal when they were also in a hearing before the WAIRC.

38 The applicant provided certain documents sought by the applicant to the Tribunal but indicated that the various witnesses of fact who had provided statements would not be called by the respondent.

39 This application was ultimately heard over a number of days in December 2013 and March 2014, and additional evidence was filed as late as 5 August 2014. The material filed in August 2014 was received by the Tribunal following a directions hearing that was held at the applicant's request on 2 July 2014 concerning issues of credit regarding the evidence of Dr Helena Piirto, a psychiatrist called by the respondent. The issue of credit was raised by the applicant. The applicant also raised issues arising from the cancellation or setting aside of the violence restraining order and various orders for costs made in that proceeding in the Magistrates Court which the applicant asserted needed to be addressed in this proceeding.

40 The WAIRC proceedings complicated this proceeding because, first, the applicant's and the respondent's resources were stretched across both matters and they were both being heard in similar time periods. The applicant was represented in the WAIRC proceedings but he was not represented in this proceeding. The respondent was represented in the WAIRC proceedings and in this proceeding and there was an overlap in the legal representatives who were representing the respondent in both proceedings.

41 Secondly, the parties and their legal representatives were at all times focused ­ despite Tribunal orders and directions - on the WAIRC issues. However, the WAIRC issues were much broader than the issues before the Tribunal in this proceeding. Put simply, not every person who has been granted a firearm licence would qualify to be a member of the WA Police. The issues in the two proceedings are not the same. Therefore, because a person has ceased to be a member of the WA Police because he has been removed by the respondent for cause, it does not follow necessarily that that person is no longer a fit and proper person to hold a firearm licence.

42 Thirdly, there was a high degree of personal and professional animosity produced in this proceeding that was highly unusual in this kind of proceeding. The representatives of the respondent from time to time were very argumentative with the applicant across the party table and vice versa. The psychiatrists engaged by both parties were openly verbally hostile towards one another, no doubt caused by a difference of professional opinion on the applicant's diagnosis which had been the subject of debate before the WAIRC. It also seemed to the Tribunal, unusually, that none of the expert witnesses, counsel or the applicant (who has experience as a prosecuting officer), seemed to comprehend that they were not entitled to have their opinion accepted by those appearing for the opposite side.

43 Fourthly, the vocational nature of the WAIRC proceedings and the fact that the WAIRC proceedings were ongoing at about the same time as this proceeding, resulted in the parties and some witnesses appearing to be heavily 'invested' in this proceeding. The parties and the witnesses from time to time lacked objectivity and an appreciation that this proceeding was not a repetition of the WAIRC proceedings or any other proceedings. These factors made propelling the parties to a final hearing and completing the final hearing difficult.

44 The Tribunal warned the parties early in the proceedings that this proceeding should not be treated as a repetition of past failed prosecutions or the WAIRC proceeding. The respondent filed statements of witnesses used in the WAIRC proceeding whom he did not call and had no intention of calling. The applicant made allegations about witnesses who were not called by him and whom he had no intention of calling, and he had no way of establishing the motives of those witnesses. Most of the statements in the proceedings went to the health and welfare unit relationship issues which were central to the WAIRC proceedings. Ultimately, the Tribunal found that the most objective material that it relied on was the CD showing the CCTV footage of the event at the Telstra store on 3 April 2012, the conviction for an offence against the Firearms Act, the reasons for decision in the assault charge matter dated 13 March 2013, the submissions by the applicant concerning his use of synthetic cannabinoids and prescribed medication, and documents produced by him, including a letter by Dr Skerritt, the reports by Dr Fitch, the applicant's psychiatrist and Dr Piirto, and the reports by Mr Erasmus and Ms Kate Smith, a psychiatrist.

45 In this proceeding the following documents were filed or produced to the Tribunal:

1. The application including the letter of notice dated 3 January 2013.
2. The respondent's statement of issues, facts and contentions filed 7 May 2013.
3. The respondent's bundle of documents relevant to the Tribunal's review of the reviewable decision filed 7 May 2014, including:

1. applicant's firearms' list; 2. nine photographs of firearms;

1. list of criminal outcomes concerning the applicant; 2. copy of an online complaint by the assistant manager of the Telstra Shop in Morley; 3. letter from Dr Terlouw of Centro Medical Centre Galleria dated 20 April 2012; 4. copy of incident report 3 April 2012; 5. statement of material facts dated 4 April 2012 concerning a common assault charge and inadequate storage facility of firearms; 6. incident report concerning a search warrant execution on 3 April 2012; 7. transcript of trial in the Magistrates Court of Western Australia PE22011 of 2012 concerning inadequate storage facility firearm charge 12 November 2012; 8. reasons for decision by Magistrate Heaney delivered 19 February 2013 PE22011 of 2012;

1. certificate of approved analyst dated May 2012;

1. certificate of approved analyst dated May 2012; 2. extract of National Cannabis Prevention and Information Centre publication; 3. statement of material facts dated 3 December 2011 concerning alleged assault on Ms Coutts; 4. applicant's statement of admitted facts in PE46604 of 2011; 5. transcript of trial in the Magistrates Court of Western Australia PE46604 of 2011 on 13 March 2012; 6. copy of signed statement of Senior Sergeant Halvorsen dated 16 April 2012; 7. copy of signed statement of Detective Senior Sergeant Fucile dated 16 April 2012; 8. statement of material facts dated 4 December 2011 concerning failing to ensure safe keeping of firearms and ammunition; 9. incident report dated 5 December 2011;

1. copy of signed statement of Senior Sergeant Wayne Bryan dated 23 April 2012;

1. copy of signed statement of Ms Sandra Serofini;

1. copy of signed statement of Mr Erasmus dated 3 May 2013;

1. copy of signed statement of Ms Fiona Angelina Donaldson dated 23 April 2013;
2. respondent's letter of submission dated 29 October 2013 (concerning documents);
3. Magistrates Court of Western Australia general form affidavit of Ms Anne-Louise Sargeson (aka Coutts) affirmed 11 November 2013;
4. CD of CCTV footage of Telstra incident on 3 April 2012;
5. copy of sworn statement of Ms Margaret Helen Barker dated 17 April 2012;
6. copy of sworn statement of Ms Barker dated 3 April 2012;
7. expert report of Mr Erasmus dated 14 November 2013;
8. expert report of Mr Erasmus dated 14 November 2013;
9. expert report of Dr Piirto dated 8 November 2013;
10. expert report of Dr Piirto dated 30 May 2013;
11. expert report of Dr Piirto dated 9 August 2013;
12. expert report of Dr Fitch dated 30 July 2012;
13. restraining order details issued dated 6 March 2014;
14. respondent's submissions on preliminary issue (violence restraining order) dated 17 March 2014;
15. applicant's documents and submissions filed 17 October 2014 including:

1. Telstra shop submission; 2. two WA Police alcohol and drug­taking sample collection forms dated 3 April 2012;

1. copy of transcript of trial in the Magistrates Court of Western Australia PE22011 of 2012 before Magistrate Heaney; 2. draft unsigned letter to 'Commissioner' concerning 'loss of confidence'; 3. alleged assault ­ Ms Coutts' submission; 4. transcript of trial in the Magistrates Court of Western Australia PE46604 of 2011 on 12 and 13 March 2013 before Magistrate Hunter; 5. expert report of Dr Fitch dated 17 October 2013 and substantial attachments (regarding issues); 6. submission of health and welfare unit dated 4 January 2012; 7. submission of health and welfare unit dated 22 March 2012; 8. submission of health and welfare unit dated 20 December 2012;

1. expert report from Ms Kate Smith dated 16 May 2013;

1. expert report of Dr Fitch dated 17 September 2013; 2. expert report of Dr Fitch dated 15 October 2013 (executive summary); 3. expert report of Dr Fitch dated 17 October 2013 (original issue); 4. failure to keep safe firearm conviction submission; 5. transcript of trial in the Magistrates Court of Western Australia PE56293 of 2011 on 15 March 2013 before Magistrate Wheeler (resulting in a conviction for breach of s 23(9)(d)(ii) of the Firearms Act;
2. copy of violence restraining order issued 6 March 2014 (by the respondent);
3. copy orders of costs following cancellation of the violence restraining order made 6 March 2014 ­ order issued 21 May 2014 (from the applicant);
4. copy transcript PERO666 of 2014 held in the Magistrates Court of Western Australia before Magistrate Hogan dated 6 March 2014 and annotated documents (from the applicant including Dr Piirto's letter dated 11 January 2012);
5. copy of amended order for costs in PERO666 of 2014 Magistrates Court of Western Australia dated 20 June 2014;
6. respondent's responsive submissions dated 19 August 2014:

1. copy transcript PERO666 of 2014, Magistrates Court of Western Australia; 2. email Mr J Brennan;

1. Magistrate's Court registry letter dated 20 June 2014;

1. amended order for costs dated 20 June 2014; 2. copy affidavit by Ms Rebecca Vraptsis, a Telstra employee, dated 18 August 2014; and 3. letter dated 18 August 2014 from Dr Piirto;

46 Additional documents were produced during the hearing and each was given an exhibit number as follows:

1. letter from Dr Skerritt to Dr Salimi dated 29 September 2011 (Exhibit 1) produced by the applicant;
2. Beaufort Street 24 Hour Chemist patient history report (Exhibit 2A) produced by the respondent;
3. The Dispensary Mt Lawley patient history report (Exhibit 2B) produced by the respondent; and
4. Report by Ms Trinity Herbert dated 15 January 2013 (Exhibit 3) produced by the applicant.

47 The applicant called Ms Coutts and Dr Fitch to give evidence in the proceeding. The respondent called Dr Piirto and Mr Erasmus to give evidence in the proceeding.

48 The purpose of the Firearms Act is expressed to be to make provision for the control and regulation of firearms and ammunition, the licensing of persons processing, using, dealing with or manufacturing firearms and ammunition and for incidental and other purposes. The history and the purposes of the amendments made to the Firearms Act by the Firearms Amendment Act 1996 (WA) (Amendment Act) are referred to in Turner v Keegan [2001] WASCA 9 and McGee v Chitty [2011] WASCA 125 (McGee). The broad purpose of the Firearms Act, as amended, is to protect the public. The Amendment Act was derived from a bipartisan Commonwealth and States approach following the tragedy of the Port Arthur massacre in1996. One of the means adopted by the legislature to protect the public from the misuse of firearms is to provide a system of control over the ownership and use of firearms by a system of licences, permits and approvals (McGhee per Mazza JA at [31]). The discretionary power to issue a firearm licence is conferred upon the respondent, which power the respondent may delegate to authorised officers.

49 Briefly, s 5 of the Firearms Act vests responsibility for the administration of that Act in the relevant Minister. Section 5(2) of the Firearms Act provides that the administration shall be carried out by the Commissioner. The Commissioner is defined by s 4 of the Firearms Act to be the respondent. Section 5A(3) of the Firearms Act provides that the respondent may delegate any power that he has under the Firearms Act, other than those of his functions delegated to him by the regulations made pursuant to the Firearms Act, or the power of the respondent to delegate as conferred by s 5A(3) of the Firearms Act.

50 The permitted delegation must be to a member of the WA Police and must be effected by a signed instrument of delegation. Although the signed instrument of delegation was not before the Tribunal, the Tribunal refers to s 29(2) of the Firearms Act which provides:

In any proceedings under this Act a document or writing purporting to be, or to be a copy of or extract from, any licence, permit, approval or other document issued under this Act, or provided or produced to the Commissioner or a member of the Police Force in connection with any application or request for information under this Act ­

(a) is evidence which is admissible, and is to be accepted as to the matter contained in the document in the absence of proof to the contrary; and

(b) if it is proved to be an examined copy or extract, purporting to be signed and certified as such by or on behalf of the Commissioner, is for all purposes sufficient evidence of the matter contained in the original without producing the original.

51 Where a member of the WA Police issues a letter of revocation of a firearms licence in which that member asserts that he is a delegate of the respondent for the purposes of issuing the letter of revocation, such statement and letter is, in this proceeding, admissible evidence of that fact of delegation, and is to be accepted as that fact in the absence of evidence to the contrary.

52 On 7 January 2013, Acting Inspector Hawkins of the WA Police wrote to the applicant notifying him that he was the respondent's delegate and that his approval to possess the firearms listed was revoked pursuant to s 20 of the Firearms Act. The Tribunal finds that that notice of revocation was issued by a duly delegated officer of the respondent.

53 Section 20 of the Firearms Act provides:

(a) that a person who is the holder of a licence ...

(iii) could not, because of section 11, be granted the approval or permit or issued the licence, as the case requires, if the person were then applying for it;

he may ... revoke any licence, permit or approval relating thereto ...

...

(3) The Commissioner shall give notice in writing to the holder, where any licence, permit or approval issued or granted under this Act is revoked or varied, of the reasons for the decision.

...

54 Section 11(1) of the Firearms Act provides:

(1) The Commissioner cannot ... issue a licence under this Act to a person if the Commissioner is of the opinion that ­

(c) the person is not a fit and proper person to hold the ... licence.

55 Section 11(2) of the Firearms Act provides:

Where the Commissioner is satisfied that a person has a history of, or a tendency towards, violent behaviour, the Commissioner may take it into account in deciding whether that person is a fit and proper person to hold ... [a] permit, or licence. (Tribunal's emphasis)

56 Relevantly, s 11(3)(a) of the Firearms Act provides that if a person within five years prior to their application for a licence has been:

(i) ... convicted of an offence involving assault with a weapon;

(ii) ... convicted of an offence involving violence;

(iii) ... convicted of any offence against [the Firearms] Act; or

(iv) [against whom] a violence restraining order was made[,]

then that fact alone is 'sufficient' grounds for forming an opinion that that person is not a fit and proper person to hold a firearm licence for the purpose of s 11(1)(c) of the Firearms Act.

57 Further, s 11(3)(b) of the Firearms Act provides:

The Commissioner has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold [a firearms] licence ... if the Commissioner ­

...

(b) is satisfied that the person fails to meet [the] standards of mental or physical fitness that the Commissioner considers to be necessary for the person to hold the approval, permit or licence[.] (Tribunal's emphasis)

58 In the Tribunal's view, the mental and physical fitness that the Commissioner considers necessary must be considered in the light of the object, scope and purpose of the Firearms Act; that is, balancing the public safety and the private rights of members of the community to use and possess a firearm. The Tribunal notes that the form of the Firearms application referred to in Sch 1 of the Firearms Regulations 1974 (WA) in reg 3 requests every applicant to make a statement about the mental and physical fitness of an applicant for a firearms licence:

1. In the last 5 years have you been treated for any medical condition that could effect your fitness to hold a firearms licence or regularly used prescription medication or other drugs?

◻ Yes Please provide details below.

...

1. Do you have any physical or mental condition that could effect your fitness to hold a firearms licence?

◻ Yes Please provide details below.

...

59 Although not addressed by either party in submissions, the temperament of the individual concerned is a central matter in making an assessment of fitness and propriety for the purposes of s 11(3)(b) as well as s 11(2) of the Firearms Act. In the Tribunal's view, if a person suffers a mental condition that affects his judgment and temperament in a way that might make him a risk to public safety that is beyond the contemplation of the Firearms Act expressly or implicitly, that fact will inevitably have a bearing on the issue before the Tribunal - the fitness and propriety of the applicant to retain his firearm licence pursuant to the Firearms Act.

60 Read together, s 11(1)(c), s 11(2) and s 11(3)(a) and (b), and s 20(1)(a)(iii) of the Firearms Act empower the respondent to revoke a firearm licence if, at the time of considering the revocation, the licensee had, in the previous five years, been convicted of an offence involving violence, convicted of an offence under the Firearms Act, been the subject of a VRO, or did not meet the mental and physical fitness the Commissioner considered necessary, and/or it was established that the licensee displayed a history of, or a tendency towards, violent behaviour.

61 The respondent is not obliged to form an opinion that a person is not a fit and proper person to hold a firearm licence simply because the proof of one or more of these factors. Section 11(5) of the Firearms Act provides that the respondent may form the opinion that the licensee is still a fit and proper person to hold a firearm licence, notwithstanding proof of any of the facts referred to in s 11(2) and s 11(3) of the Firearms Act. This is particularly relevant in the case of the conviction for a failure to keep safe and secure the applicant's firearms and ammunition pursuant to s 23(9)(d)(ii) of the Firearms Act.

62 Further, if the respondent were to form the opinion in any matter that the licensee was not a fit and proper person to hold a firearm licence, s 20(1)(a)(iii) of the Firearms Act does not compel the respondent to revoke the firearm licence held by that person. Section 20(1)(a)(iii) of the Firearms Act confers a further discretionary power upon the respondent to revoke the firearm licence, even where he has formed the view that the person is not a fit and proper person to hold the licence by reference to the word 'may'.

63 One question that arises in this matter is: what are the factors relevant to the assessment of whether a person is not fit and proper to hold a firearm licence? As to prior convictions, Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996) (Tavelli) is instructive. In Tavelli, Wheeler J made observations concerning the relevance of prior convictions in deciding whether a person was or was not fit and proper to be licensed as a security agent pursuant to the Security and Related Activities Control Act 1996 (WA) (SRAC Act). Her Honour's observations were applied by the Tribunal in Wignall and Commissioner of Police [2006] WASAT 206 and Minniti and Commissioner of Police [ 2009] WASAT 223 (Minniti).

64 The Tribunal's application in Minniti of her Honour's observations in Tavelli was held by the Court of Appeal to have not amounted to an error of law and implicitly affirmed as being applicable as a guideline by which the Tribunal may assess whether or not a person is fit and proper in the context of the exercise of a statutory discretion (Minitti v Commissioner of Police [2010] WASCA 198).

65 Relevantly, in this application, those principles may be summarised as follows:

• There can be no inflexible rules and no policy that restricts the exercise of the statutory discretion.
• The statutory discretion is to be exercised anew in the circumstances of each application in light of the statutory framework.
• A conviction if serious by its nature (and notwithstanding that the conviction does not relate to the vocation or the licence in issue, or does not involve dishonesty where honesty is critical to the vocation or the issue of the licence under scrutiny) is relevant to the issue of whether a person is 'fit and proper'.
• The conviction, if serious in the sense that it represents 'a course of disregard for the law as to reflect particularly adversely on the character of the person who committed the offence' (Minitti per Pullin JA at [13]), is relevant to the issue whether a person is 'fit and proper'.

66 In this proceeding, it is not just a conviction that the respondent relies upon. The respondent seeks to rely upon the conduct of the applicant at particular points in time that have not resulted in convictions ­ that is the prosecution of a charge concerning that conduct, which prosecution failed to result in a conviction of the applicant. Notwithstanding the acquittal, the respondent seeks to rely on facts relevant to those charges that support the contention that the applicant is not a fit and proper person to retain a firearm licence, and although it was not put this way by the respondent, it must be the respondent's case that it is because he has a tendency or a history towards violence, or that he does not meet the general criteria of being 'fit and proper'.

67 Of course, the Tribunal, standing in the shoes of the respondent, is not restricted to the provisions of s 11(3) or s 11(2) of the Firearms Act from considering all factors relevant to assessment of whether a person is fit and proper to retain a firearm licence. The expression 'fit and proper' incorporates the qualities of honesty, knowledge and ability (Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127; The Registrar, Real Estate and Business Agents Supervisory Board v Barnett (Unreported, WASCA Library No 970426A, 26A, 26 August 1997) per Kennedy J; Murphy and Commissioner for Consumer Protection [2012] WASAT 74; Byfield and Commissioner for Consumer Protection [2012] WASAT 217; and Ives and Plumbers Licensing Board [2013] WASAT 125).

68 Of itself, and standing alone, the term 'fit and proper person' carries no precise meaning (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321) (Australian Broadcasting Tribunal v Bond). The expression takes its meaning from its context and the activities in which the person is or will be engaged and the ends to be served by those activities. The expression may require an assessment of a person's character because it provides an indication of public perception as to likely future conduct or reputation (Australian Broadcasting Tribunal v Bond).

69 The applicant, in any case, must be assessed as being possessed of the requisite knowledge of the duties and responsibilities 'devolving upon him as the holder of a particular licence under a particular Act' (Maxwell v Dixon [1965] WAR 167 per Hale J). The expression 'fit and proper person' gives the widest possible scope for judgment and for rejection of an application for a licence (Minitti).

70 In the case of the Firearms Act, the applicant must be assessed to possess the requisite knowledge of the duties and responsibilities of owning and using a firearm, as imposed by the Firearms Act. In this proceeding, the applicant must be assessed as having the character to be trusted to discharge those duties and responsibilities, as imposed by the Firearms Act, into the future after the licence is granted, in a way that preserves public safety.

71 Whether or not the applicant's behaviour, relied upon by the respondent as establishing that the applicant is not a fit and proper person to retain a firearm licence and whether that behaviour is a result of any medical condition (be it bipolar, schizophrenia, ADD or Asperger's syndrome) became the battleground for the parties in this proceeding. As a result, the Tribunal was provided with a number of reports to support the applicant's contention that he suffered a mental or neurological condition and that he had been misdiagnosed and incorrectly treated in the past, which he asserted resulted in the relevant behaviour, and the applicant relied upon these reports to establish that now he is correctly diagnosed and correctly treated and his condition and his conduct are manageable. The applicant relied principally on Dr Fitch's evidence. Dr Fitch gave evidence in this proceeding and a number of her reports were filed by the applicant.

72 For the respondent, Dr Piirto and Mr Erasmus were called to give evidence. The respondent also relied upon their respective reports filed in this proceedings.

73 At an early stage of the proceeding, the Tribunal stated that the applicant's explanation for his relevant behaviour and his attempt to diminish his responsibility for his behaviour based upon either a medical condition or the incorrect treatment of the incorrect medical condition opened up the question whether the applicant was fit, on mental grounds, to retain a firearm licence for the purposes of s 11(3)(b) of the Firearms Act. The Tribunal went so far as to warn the applicant that, to advance a case that he had a mental condition which caused his unpredictable aggressive and irrational behaviour, was a double­edged sword because, whilst his contention might explain his behaviour and persuade the Tribunal that he was not an intentionally aggressive or violent individual, the mental condition causing his aggression would have to be taken into account by the Tribunal in forming an opinion whether the applicant is fit to retain a firearm licence. Further and in any event, episodes of aggression relied upon by the respondent may constitute history of violence or a tendency towards violence for the purposes of s 11(2) of the Firearms Act, regardless of the cause of the conduct. Those warnings were ignored.

74 In short, in her evidence, Dr Fitch opined that the applicant suffered Asperger's syndrome, ADD, had experienced two episodes of depression (from which he has remitted), and is 'exquisitely sensitive' to some 'common' medications (report dated 17 October 2013, page 34). Dr Fitch gave evidence that she consulted the applicant by telephone, in person or by email for over 800 hours. It was implicit that she took all her instructions and the history of the applicant from the applicant, although she may have taken history from his sister as well. There was a great deal of frustration expressed by Dr Fitch towards the respondent, or rather the respondent's health and welfare unit, that she had not been able to obtain the records and information from the respondent's health and welfare unit to undertake an objective assessment of the applicant's history with that unit. However, given that there were two proceedings on foot and those issues were live and canvassed in both proceedings, the Tribunal does not objectively consider Dr Fitch's frustration towards the respondent is justified and it does not justify an absence of objective material in her considerations of the applicant's behaviour and mental condition. Dr Fitch's frustration properly should have been directed towards the applicant for not undertaking the proper processes that were available to him to obtain those documents. The reports by Dr Fitch, her evidence and her opinion, was based upon the applicant's recitation of his history (and to a small extent upon the applicant's sister's historical account) which historical account is not objective.

75 Dr Piirto, a psychiatrist, gave evidence that she met and interviewed the applicant on 11 January 2012. She stated that she had obtained his workplace file from the respondent. In her report dated 30 May 2013 in particular, she examines the history of incidents at WA Police. She concludes that the applicant presented with traits of several personality disorders, including paranoid, antisocial and narcissistic personality disorders. Dr Piirto gave evidence that she only consulted with the applicant once for a period of 90 minutes, although the applicant insisted that Dr Piirto only questioned him or met with him for 20 minutes. Dr Piirto rejected that assertion and said in her report that all initial assessments of patients were 90 minutes long and subsequent assessments were 60 minutes long, and that she had never met a patient for less than 30 minutes.

76 Whilst Dr Piirto did not have as much contact in consultation with the applicant as Dr Fitch, she did have the applicant's workplace file with the respondent which identified disciplinary issues for rude and aggressive behaviour by the applicant as a police officer for some considerable period of time and as early as 1995. Dr Fitch, on the other hand, considered that she had the weight of evidence in her favour as her assessment was far more thorough than the assessment by Dr Piirto.

77 The Tribunal considered that Dr Fitch's evidence was most problematic in that the history that she obtained from the applicant lacked an objective basis. The two psychiatrists were diametrically opposed: Dr Fitch opined that the applicant suffered Asperger's syndrome and ADD, whilst Dr Piirto gave evidence that objectively it is difficult to tell whether a person suffers any of those conditions. She also stated that it is impossible to have Asperger's syndrome and ADD because they were at the opposite ends of the spectrum and, in truth, in her assessment, this applicant had neither condition. Dr Piirto hotly contested the means, method and manner of Dr Fitch's assessment and her opinion. Again, the Tribunal had received the evidence of these two experts after there had been filing of responsive reports and accusations of lack of credibility and lack of professional methodology by each of them of the other, through the parties in the WAIRC proceedings. There was a high degree of professional and personal animosity between Dr Fitch and Dr Piirto in the hearing room when both were present. Each objected to the other being in the hearing room when they gave their evidence. The Tribunal considers their long history of embattlement in the WAIRC dispute and their professional disagreement which bordered on personal hostility detracted from their credibility as witnesses in this proceeding. The same may be said of Mr Erasmus when dealing with the applicant under cross­examination.

78 On balance, however, the Tribunal considered that Dr Fitch's evidence was not persuasive. She had given an extraordinary amount of time to the applicant's assessment and gave evidence that she had assisted him in preparing for the Tribunal hearing by photocopying documents and all kinds of manner that went well beyond her role as his consulting psychiatrist. She made excuses for the applicant's behaviour, such as that he was not able to represent himself; he was unable to withstand the rigours of cross­examination, or was unable to cross-examine, and was unable to present his own case and make submissions, because of his conditions. This opinion flies in the face of the fact that the applicant held the position as prosecutor for the WA Police for 12 months prior to him being removed. It also flies in the face of the fact that, in the Tribunal's opinion, the applicant appeared to manage himself rather well before the Tribunal. The evidence of Dr Fitch tended to excuse the applicant's objectionable behaviour, and the Tribunal considered that she had lost objectivity and had become invested in the proceedings and in the applicant's welfare to the point that the Tribunal could not rely on her opinion.

79 Dr Piirto made her opinion on Dr Fitch very clear. Her hostility towards the applicant and Dr Fitch was very obvious in her demeanour and in her short staccato responses when she was asked a question by the applicant or when asked any question in relation to Dr Fitch's opinion. The applicant had made various attacks on Dr Piirto's professional ability in this proceeding. Dr Piirto was not truly an independent witness in this proceeding. She had been called upon by the respondent to assess the applicant with a view to rehabilitating him, what rehabilitation was required and whether he could be rehabilitated once he had fallen under the internal investigation branch of the WA Police. She had formed an opinion, along with Mr Erasmus, that the applicant had some personality traits that were incompatible with rehabilitation as a police officer unless he accepted that he had these personality traits and unless he agreed to engage in therapy to overcome them. Curiously, at the stage that Dr Piirto and Mr Erasmus became engaged with the applicant, he asserted that there was nothing wrong with him and that he had no medical condition.

80 The applicant, for his part, insisted that all of the respondent's evidence was conflated and directed towards causing him harm in some way, either by his removal from the WA Police or by revocation of his firearm licence. The applicant tended and bordered on the paranoid in this regard, a trait that did not go unnoticed by Dr Piirto in her assessment of the applicant.

81 The Tribunal observed that at no stage in this proceeding did the applicant ever accept any responsibility for his conduct. The applicant maintained at all times that whatever the conduct, the circumstances warranted it; that the conduct was justified, or that he was entitled to advance his own just position regardless of the merits or the utility of being justified. The Tribunal observed that the applicant's pursuit of justification or vindication was crusade­like. Such conduct is consistent with Dr Piirto's assessment of the applicant as possessing a narcissistic trait to his personality.

82 On balance, the Tribunal preferred the evidence of Mr Erasmus and Dr Piirto to that of Dr Fitch. The applicant also relied upon the report by Ms Kate Smith, psychologist, who diagnosed the applicant as suffering with Asperger's syndrome, although Ms Smith was not called to be the subject of cross-examination.

83 The Tribunal finds that the applicant's allegation that he had a mental condition, and in particular Asperger's syndrome and ADD, or one or the other, is not proved. The Tribunal finds that Dr Fitch's evidence is solely based on the applicant's own selective version of his history and not on the objective facts. Dr Piirto's opinion and Mr Erasmus' opinion are more likely based on objective facts. Dr Fitch tended to be far too empathetic and sympathetic, and entered upon dealing with all of the applicant's maladies and, in the end, she found an excuse for all of his conduct.

84 There was evidence before the Tribunal that the applicant had consulted a number of general practitioners and Dr Skerritt, a psychiatrist, and had obtained a range of psychotic medications. Dr Fitch is currently prescribing Ritalin for the applicant. Dr Fitch and the applicant both gave evidence, and it is asserted that the applicant's feelings of aggravation that well up from time to time and quickly are greatly reduced by reason of his induction of Ritalin. For a control test, the applicant said that, in consultation with Dr Fitch and at her suggestion, he reduced his daily dose of Ritalin until he felt less comfortable. He said that over a period of three to four days he reduced and stopped his dose and by day three he said he felt noticeably more agitated and aggressive. This, he reasoned, proved that he had Asperger's syndrome and/or ADD because that is a drug that is used to treat Asperger's syndrome and ADD. He said it proved his behaviour and mindset was controllable by the drug, Ritalin, and Dr Fitch concurred in this view.

85 Dr Piirto gave evidence that Ritalin will make most people feel at least more focused and alert. She indicated that even somebody who is drowsy will feel more focused and alert when taking Ritalin. She indicated that that does not mean that a person who feels more focused and alert after taking Ritalin has ADD, Asperger's syndrome or any other neurological disorder.

86 The Tribunal agrees with Dr Piirto's opinion for the reasons referred to above.

87 The consequence of this finding by the Tribunal is that the applicant's behaviour relied upon by the respondent to support a conclusion that the applicant is not a fit and proper person to retain his firearm licence is not excusable because of a previous undiagnosed medical condition and therefore there is no diminution of the applicant's responsibility for that conduct as he attempted to advance. Further, the Tribunal's finding leads to a further finding that the applicant's behaviour is not properly treated by medication.

88 The Tribunal received evidence and notes that the applicant admitted to taking the following:

• synthetic cannabinoids when legal;
• Pristiq for depression, prescribed by Dr Skerritt, which the applicant failed to take as prescribed (refer Exhibit 1) and instead had taken the equivalent of four times the dosage);
• Endep for depression;
• Ativan, a benzodiazepine often prescribed for anxiety;
• Diazepam, also prescribed for anxiety;
• Pramine, usually prescribed for nausea and vomiting;
• Zyprexa, prescribed for schizophrenia;
• Dexamphetamine, often prescribed for ADD; and
• Seroquel, prescribed for bipolar conditions,

and, in addition, the applicant has started taking Ritalin, which is commonly prescribed for ADD sufferers. Save in the case of Dr Fitch, who prescribed Ritalin, Dexamphetamine and Zyprexa, and Dr Skerritt who once prescribed Pristiq, the means by which the applicant obtained these medications and what the dosage was is very unclear.

89 The applicant readily admitted in evidence that he was experimenting with all the drugs that he had been lawfully prescribed and with synthetic cannabis to treat his 'symptoms'. The applicant has shown himself to be entirely irresponsible in taking prescribed, powerful psychotic drugs, as evidenced by the prescription of Dr Skerritt. Again, the applicant refused to accept responsibility for his almost overdose of Pristiq, and blamed Dr Skerritt. The applicant repeatedly blamed Dr Skerritt for misdiagnosing him. The applicant said that Dr Skerritt initially diagnosed him as suffering with a 'bipolar' condition and then changed his mind to a 'schizophrenic' condition. In fact, Exhibit 1 indicates that Dr Skerritt considered that the applicant was suffering from depression and hence prescribed Pristiq. When the applicant returned to him and explained that he had taken four times the dosage prescribed, this explained to Dr Skerritt why he had psychotic episodes. Dr Skerritt was not to blame; the applicant was. He took a drug other than as prescribed and no one is to blame but himself. Dr Skerritt had explained to the applicant that Pristiq took a period of time to operate. The applicant appeared to refuse to accept that opinion and insisted that Pristiq did not work initially, and so he took the entire prescription in a week. It is this induction of Pristiq that the applicant asserts is responsible for his aggressive conduct towards Ms Coutts on 3 December 2011. The applicant did not call Dr Skerritt to put these matters to Dr Skerritt and did not obtain a report from him. The applicant maintained at all times that Dr Skerritt was responsible for his aggressive conduct on 3 December 2011 because he had been misdiagnosed. The Tribunal rejects that contention and there is no reliable evidence to support the same.

90 The Tribunal is of the view that the applicant is likely to continue to be irresponsible in the way he ingests prescribed medication. The applicant seeks to diminish his responsibility for his violent and aggressive conduct by asserting that he was compelled by circumstances to self-medicate as he could not sleep, or that the medication had been wrongly prescribed. That is not true; the applicant was fully in control. In fact, the Tribunal does not merely find that the applicant was only self­medicating; he was self-diagnosing. It is the applicant who told various practitioners that he could have bipolar, Asperger's syndrome, ADD or schizophrenia. The Tribunal considers that on the evidence there is a real possibility that the applicant visited a number of general practitioners and specialists and tailored his answers to their questions to produce the possible diagnosis that would result in him obtaining some of the powerful drugs that he was prescribed.

91 The Tribunal now turns to the incident on 3 April 2012 at the Telstra shop in Morley. A lot has been said about that incident. The applicant has at all times suggested that the victims, and in particular Ms Vraptsis, could not possibly have been afraid of him. The Tribunal has viewed the CCTV recording of that incident (produced by the applicant) and, in the Tribunal's opinion, the applicant's behaviour on that occasion displayed a complete and utter lack of self-control. The applicant was physically alarming and frighteningly overbearing and had no basis to force his way into the private area of the shop, frighten the Telstra employees and shout at the manager in the manner that he did. The CCTV recording has no sound, but the Tribunal could infer that the applicant was shouting at the Telstra shop manager: the applicant's body was rigid, his neck was strained and he could be seen speaking to her in a wide open­mouthed, furious fashion. Ms Barker's and Ms Vraptsis' statement confirm this view. His belief that his telephone had been stolen was irrational and his reaction was irrational. This was a commercial/consumer dispute. It is not an uncommon kind of consumer type of complaint - not all customers behave in the way that he did.

92 The applicant's behaviour on the evening of 3 April 2012 was also aggressive and irrational. In these proceedings, the applicant has shown himself to have become totally and utterly fixated on:

• the Telstra manager in question, Ms Vraptsis;
• Senior Sergeant Bryan, whom he believes ­ despite evidence to the contrary ­ was at his home on an occasion;
• Mr Erasmus and Dr Piirto;
• impressing upon the Tribunal and every witness against him that he is correct and they are incorrect; and
• asserting and insisting that the Tribunal accept that he suffers a mental condition, which mental condition reduces his responsibility for his aggressive and violent behaviour, particularly on 3 April 2012, such that he is still a fit and proper person to hold a licence.

93 The Tribunal finds that he is so fixated on this that he called Ms Coutts, who was the victim of the assault in November 2011. Ms Coutts was a wholly unreliable witness. The Tribunal finds that Ms Coutts had been in a long-term relationship with the applicant. It had been an unhappy relationship. They had ended it. They were dissolving their relationship and separating their assets through the Family Court of Western Australia (Family Court). They were embroiled in Family Court proceedings. Ms Coutts' evidence was that she blamed herself for the applicant physically striking of her on 3 December 2011. The Tribunal observed of Ms Coutts' demeanour that she did not believe that statement and, in any event, if she did believe that statement, the Tribunal does not believe her.

94 The applicant is an accomplished individual. He speaks well. He was a police officer. He took his position very seriously but, in the Tribunal's view, he has an aggressive and violent nature and a tendency to obsessively insist that he is always right. He has a history in the workplace of being rude, aggressive and self-righteous, and he appears to hold all who disagree with him belligerently and arrogantly in contempt. There have been occasions, as in the Telstra shop incident, where he has abused his authority by flashing his warrant card, asserting himself, asserting that someone has stolen something from him, and asserting that he has a right, as a police officer, to enter upon premises which, as a consumer, he had no right to do. He has a tendency to attempt to belittle those who do not agree with him. He insists on getting his own way to the point of obsession. The Telstra instance is an example of uncontrolled rage.

95 Against this, the applicant was curiously well­spoken before the Tribunal and curiously compliant. This is so despite, in all the hearing rooms, a woman presided; the respondent was represented by a woman, and on some occasions two women, and both expert witnesses were women. The applicant's workplace history and the Telstra incident was advanced as establishing that the applicant was most likely to behave aggressively when interacting with women. The applicant conducted himself impeccably in this proceeding. The applicant's correspondence, however, tended to assert that, at least in the written sense, he is a very aggressive individual.

96 The applicant has a history of largely verbal aggression. From the evidence of Dr Piirto and Mr Erasmus, this is a common thread in his life as a police officer and he had been criticised for this conduct on a number of occasions. The verbal aggression seemed to have metamorphosed into physical aggression towards Ms Coutts, the staff at the Telstra shop and Ms Vraptsis in particular. The Tribunal has no doubt from viewing the CCTV recording of the Telstra incident on 3 April 2012, that if the applicant had not been restrained, he would likely have made some physical contact with Ms Vraptsis. Ms Vraptsis was in total fear of him, and her reaction was undeniably reasonable and expected. This is confirmed by the evidence of Ms Barker. To suggest otherwise, as the applicant has done from time to time in this proceeding, borders on the delusional. It was a period of blind rage ­ not just aggression but total and utter blind rage. It represents an instance of total loss of control. Although there is no digital recording of the events of instances of rage when the applicant dealt with employees of the respondent in the health and welfare unit, the Tribunal accepts that, on the evidence of the statements before it those events did occur, notwithstanding that some of those individuals were not presented for cross-examination. The evidence of the incident on 3 April 2012 at the Telstra shop lends credence to the statements of those witnesses.

97 The Tribunal finds that the randomness and the ferocity of the applicant's moments of rage have dogged him in his professional and now in his personal life, and the Tribunal finds that he has a tendency towards violence which is entirely unpredictable and uncontrollable when it occurs. The Tribunal finds that the applicant's ability to become fixated on what he believes to be a just pursuit, regardless of the outcome and the damage that he does in his pursuit, and his entitlement to pursue it blinds him to the effect that he has on individuals around him. The Tribunal's concern with this individual is that his pursuit of what he believes to be right and just is so extreme that he will stop at nothing to achieve a particular outcome. His behaviour and his aggressive and enraged moments are difficult to predict.

98 The Tribunal finds that the risk of his unpredictable, uncontrollable moments of blind rage are exacerbated when he is challenged about the reasonableness of his response, his entitlement to be enraged or his right to pursue what he believes to be a just outcome. There is no reasoning with the applicant at this point, in the Tribunal's opinion. The applicant has no concept of proportionality, of verbal, and on occasions, physical responses. To him, the pursuit to a just claim eclipses all else. The applicant will not accept that he has been wrong and will not accept that he is responsible for his conduct. The Tribunal considers that the applicant's behaviour shows a tendency towards aggressive and violent behaviour (s 11 (2) of the Firearms Act) and, for that reason alone, the Tribunal considers that the applicant is not a fit and proper person to retain his firearm licence. It is no answer that the applicant was 'under pressure' and, in any event, there was no evidence that the applicant faced anything other than the ordinary day­to­day stresses of life. If that is how the applicant reacts under pressure, he is not a fit and proper person to retain his firearm licence. The Tribunal does not place great weight upon the applicant's conviction for breach of s 23(9)(d)(ii) of the Firearms Act and considers that this may well have been a mistake or poor judgment by the applicant on that occasion.

99 If the Tribunal is incorrect in its finding that the applicant does not suffer Asperger's syndrome and/or ADD, then the Tribunal finds that his condition manifests itself in violent and aggressive behaviour. That finding, in the Tribunal's view, results in the same ultimate conclusion: the applicant is not a fit and proper person to retain a firearm licence (s 11(2), s 11(3)(a) and (b) of the Firearms Act). This is so regardless of the fact that the applicant takes medication that ameliorates those symptoms.

100 The applicant has shown himself to be completely irresponsible when taking medication as prescribed and at the level of dosage prescribed from time to time. The Tribunal has no confidence that even if the applicant does suffer Asperger's syndrome and/or ADD the applicant objectively could be trusted to take his medication so as to not become violent or aggressive.

101 The Tribunal has been assisted substantially by the evidence of Mr Erasmus when considering whether a person suffering with Asperger's syndrome or ADD is a fit and proper person to hold or retain a firearm licence. The Tribunal refers to Mr Erasmus' report dated 14 November 2013. Mr Erasmus states that even if the applicant does have Asperger's syndrome, people with Asperger's syndrome pose a heightened risk of offending based on the stated research. Mr Erasmus states that the research shows that:

• sufferers risk the development of dysfunctional and restricted coping strategies, dealing with feelings of resentment and the perception that there is no alternative way of behaving;
• many experience intense feelings of being wronged in some way and are hypersensitive to perceived incidents of criticism;
• many have significant difficulties with perspective­taking, empathy, and with central cohesion;
• there is often an innate lack of concern for the outcome that can result from conduct;
• there is an innate lack of awareness of the outcome that allows individuals to embark on actions with unforeseen consequences;
• the condition is associated with impulsivity, sometimes violent, and it can be a component of morbid ADHD or of anxiety turning into panic;
• the condition is consistent with misinterpreting rules, particularly social ones, and individuals find themselves unwittingly embroiled in offences;
• the condition associates with overriding obsessions that can lead to offences;
• the condition is associated with lacking motivation to change;
• sufferers may also suffer from an inability to read necessary interpersonal cues telling the perpetrator to disengage from a social encounter; and
• there may be an increased risk of engaging in criminal behaviour because of their excessive preoccupation with highly focused internal interests while ignoring social consequences including legal sanctions.

102 Mr Erasmus was of the view that the applicant did not suffer Asperger's syndrome or ADD but rather the applicant possessed certain personality traits. Mr Erasmus and Dr Piirto gave evidence that behaviourally the conditions of Asperger's syndrome and ADD may seems similar to the behaviour of a person with paranoid, antisocial and narcissistic traits. However, even if the applicant did suffer Asperger's syndrome and/or ADD, the Tribunal finds that the conditions and the resultant likely behaviour renders the applicant as a person who is not a fit and proper person to retain a firearm licence.

103 For these reasons, the Tribunal concludes that the applicant is not a fit and proper person to retain his firearm licence and that the respondent's decision made on or about 7 January 2013 to revoke the applicant's firearm licence is the correct and preferable decision.

1. Upon the review of the respondent's delegate's decision to revoke the applicant's Firearms Licence No 38555968 made on or by 3 January 2013, the applicant's application for orders setting aside the decision to revoke his Firearms Licence and to reinstate the same is dismissed.

I certify that this and the preceding [103] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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