Ros v Commissioner of Police

Grounds of appeal

1. Appeals from the Occupational Division of the Tribunal are governed by 80, Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The appellant has a right of appeal on a question of law, otherwise he requires leave to appeal.
2. The appellant challenges the Tribunal's affirmation of the revocation of his firearms licence and seeks a reversal of that revocation. He states that he requires such licence for his work as a large animal veterinarian and cattle primary producer.
3. The grounds of appeal are as follows: 1. the Tribunal failed to consider correctly the medical evidence the appellant presented, both in regards to his ongoing mental health risk and the lack of medical evidence that he attempted self-harm; 2. the Tribunal erroneously stated the appellant is still in a current custody battle with his ex-wife. 3. the Tribunal erred in finding that the appellant lacked recognition of his obligations as a licence holder; 4. the Tribunal erred in finding that the appellant threatened to take his son forcefully from his ex-wife; 5. the Tribunal erred in expecting that the appellant prove zero ongoing risk to public safety.
4. The Appellant also applied for leave to appeal on the following grounds: 1. the Tribunal erred when it disregarded the weight of numerous medical specialists which all state that the Appellant's mental health is stable and at no greater risk of harm with a firearm compared to the general population; 2. the Tribunal used as a reason to affirm revocation that the Appellant was in a continued legal fight with his ex-wife, which was not correct.
5. The appellant was self-represented in his appeal. The Tribunal has a duty to assist self-represented litigants balanced with the duty to ensure a fair hearing for all parties. More specifically, it may be necessary on occasion for the Tribunal to assist a self-represented litigant to articulate his/her grounds of appeal (see eg Cominos v Di Rico [2016] NSWCATAP 5). While grounds 1 and 2 were set out in the appellant's Notice of Appeal dated 11 December 2019, he raised what appeared to the Appeal Panel to be further appeal grounds in his written submissions filed 30 January 2020. The Appeal Panel confirmed with the appellant at the appeal hearing that he seeks leave to add the new grounds (as identified in his written submissions) as appeal grounds 3-5 and amend his Notice of Appeal accordingly. The appellant also seeks leave to appeal on grounds 1-5.
6. The respondent did not oppose the addition of appeal grounds 3-5 and indicated it would suffer no detriment if the Notice of Appeal were so amended, noting that it had had an opportunity to consider and answer the grounds. The two grounds referred to above in respect of which the appellant sought leave to appeal are in substance the same as appeal grounds 1 and 2 and will be considered in our consideration of appeal grounds 1 and 2.
7. In the particular circumstances of this case, we have decided to give leave to the appellant to amend his Notice of Appeal to include appeal grounds 3-5 and to seek leave to appeal on those grounds.

Extension of time for filing of appeal

1. The appeal in this matter has been filed outside the limitation period under rule 25(4)(c) of the Civil and Administrative Tribunal Rules, which states that the time period to file an internal appeal in the circumstances of this matter is 28 days from the date was notified of the decision or given reasons for the decision (whichever is the later). The Notice of Appeal was filed on 11 December 2019, one day out of time. The appellant applies for an extension of time, indicating that the delay arose due to his need to attend to the drought and bushfires on his family property, as well as extra veterinary work associated with the fires. The respondent consents to the grant of an extension of time. The Tribunal finds it appropriate, in the circumstances, to extend the period of time for the lodging of the appeal under s 41 of the NCAT Act.

Leave to appeal

1. It is well established that the Tribunal is entitled to weigh competing evidence concerning findings of fact or in considering the 'merits' of a decision. A previous Appeal Panel in AHB v NSW Trustee and Guardian [2017] NSWCATAP 79 at [30] wrote: An alleged failure by the Tribunal to give 'sufficient' weight to evidence does not identify any question of law. As stated by Dixon, Evatt and McTiernan JJ in House v R (1936) 55 CLR at 504 It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion".
2. The appellant seeks leave to appeal on the merits, not on any question of law. In order to assist the appellant as a self-represented litigant in the articulation of his grounds of appeal, the Appeal Panel has considered whether it can discern any questions of law as grounds of appeal from the Notice of Appeal, the appellant's submissions and the first instance decision. We cannot discern questions of law in this appeal. The appellant confirmed at the appeal hearing that he does not contend that the Tribunal made any error of law.
3. The jurisdiction to review the merits is not predicated on the appellant identifying a question of law or persuading the Tribunal there has been an error of law. The Appeal Panel dealt with the principles for the granting of leave in Collins v Urban [2014] NSWCATAP 17. At [84], the Appeal Panel said that, in order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45] and authorities cited there.
4. The Appeal Panel also stated that, ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. The circumstances in which it is appropriate to grant leave are not fixed or closed, subject to the principle that the power to grant leave should be exercised consistently with the matters described in Collins v Urban.
5. The appellant takes issue in his appeal with the way in which the Tribunal exercised its discretion, particularly in the way it evaluated the evidence before it and asserting factual errors were made. The Appeal Panel takes the appellant to have made a submission that leave to appeal should be granted on the basis that this matter involves the issues set out in (c), (d) or (d) in [23] above.
6. The respondent opposes the granting of leave to appeal on the basis that the appeal grounds have no merit. In terms of the factors identified in Collins v Urban, the respondent argues that the Tribunal's decision was reasonably open; its fact-finding process was orthodox; the appellant has not pointed to any ground for a grant of leave except that the Tribunal's decision is wrong; there are no issues of principle identified by the appellant and the appeal does not give rise to questions of public importance.
7. We do not consider that the appeal grounds in this matter raise issues of principle or questions of public importance. Whether any of the other matters identified in Collins v Urban, relevant to the grant of leave, are made out will be dealt with in the consideration of the appeal grounds below.

Nature of appeal and additional evidence

1. Before turning to consider whether leave to appeal on the merits should be granted, we will address what we understand to be a request by the appellant that the Appeal Panel receive additional (or further) evidence from him, that evidence being contained partly in his written submissions and partly given orally at the appeal hearing. That evidence can be briefly described as follows: 1. updated medical opinion from Dr Siefken, as conveyed orally from the doctor to the appellant during a medical consultation on 24 December 2019, to the effect the appellant does not have a mental illness, does not need treatment, and that no doctor can say a person presents zero risk to public safety if permitted to use a firearm; 2. evidence from the appellant that he does not present ongoing mental health risk because more time has passed since the Tribunal hearing in November 2019 with no recurrence of past incidents, combined with the fact the stressors in his personal and professional life that contributed to past mental health issues are no longer present; 3. evidence from the appellant that there is no ongoing dispute with his ex-partner over child access arrangements, that he visits his son once per month in accordance with court orders, and further time has passed since the Tribunal decision without disputation about access arrangements.
2. The respondent made oral submissions to the effect that much of what the appellant said at the appeal hearing was untested evidence and it would be unfair to the respondent if the Appeal Panel were to accept such evidence. Alternatively, if we did accept the evidence, the Appeal Panel should give little or no weight to it.
3. It is clear that the Appeal Panel may, if the grounds so warrant, determine an appeal by way of a new hearing and in such a case, receive further evidence (including evidence additional to or in substitution for the evidence at first instance): s 80(3), NCAT Act. Section 80(3)(b) gives the Appeal Panel considerable latitude for the receipt of evidence where it is conducting a "new hearing". However, that is only where the Appeal Panel decides to conduct a hearing as a "new hearing" because it is satisfied that "the grounds of appeal warrant a new hearing": s 80(3)(a). Otherwise, internal appeals to the Appeal Panel are not determined by way of a new hearing.
4. In the circumstances of this case, the appeal hearing was not conducted as a "new hearing" in the sense referred to in s 80(3). No submissions were made that the grounds of appeal required a new hearing. Even if such submissions had been made, we do not think that the grounds of appeal raise issues that warrant a new hearing, nor that we would necessarily allow each party to lead new or different evidence on the appeal to that put to before the Tribunal. The grounds of appeal deal with the material that was before the Tribunal below, and allege errors of fact arising from the way the Tribunal dealt with that evidence, the decision on the merits it reached and the reasons for that decision.
5. As the appeal in this matter is not by way of a new hearing, it is important to understand the nature of the appeal. This is significant because it bears upon the question of whether the appellant can rely on the additional (or further) evidence he seeks to put before the Appeal Panel. (In these reasons for decision, the terms 'further' and 'additional' evidence are used interchangeably, and we do not consider there is any relevant difference in these terms, at least for current purposes.)
6. There was a discussion of the issues dealing with the nature of internal appeals relevant to the receipt of further evidence in Yuen v Thom [2016] NSWCATAP 243 at [14]-[22]. Receiving further evidence on an appeal was further discussed in Lettau v Artwork Transport Pty Ltd [2017] NSWCATAP 14 affirming Yuen v Thom. We adopt the analysis in these cases. As such, having regard to the guiding principles under s 36 of the NCAT Act, the appeal in this case (which is not by way of a new hearing) is one akin to a rehearing, with the ability to receive further evidence if appropriate.
7. There are a number of other authorities which set out the principles on which the Appeal Panel might consider an application for admission of further evidence. Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision (BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]-[28]). Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant: BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]-[28]; Mielczarek v Commissioner of Fair Trading [2016] NSWCATAP 217; Building Professionals Board v Hans [2008] NSWADTAP 13. Any potential prejudice to the other party upon the receipt of further evidence is also relevant: Lettau v Artwork Transport Pty Ltd at [25]. Whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant: ZNX v ZNY [2020] NSWCATAP 41 at [25].
8. In an appeal which determines whether error has occurred, it is the decision at first instance that the Appeal Panel must examine. The role of the Tribunal at first instance in an administrative review proceeding is to decide what is the correct and preferable decision, as at the date of the Tribunal's decision: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. It is not relevant to an examination of that decision whether the circumstances have changed since that time - affirmed in Mielczarek.
9. Even though the Appeal Panel has power to receive further evidence, its powers in an appeal that is not a new hearing would ordinarily be construed on the basis they are to be exercised for the correction of error. As noted by Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 at [13] - [14]: "If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing. Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance". See also Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 326.
10. The question then becomes whether it is appropriate to allow the further evidence from the appellant. We note that the appellant had an opportunity, in accordance with Tribunal directions made on 19 December 2019, to provide fresh evidence on which he seeks to rely in this appeal by 30 January 2020, and he did not do so (except to the extent of the evidence contained in his written submissions). He did not provide any explanation in this regard (other than to state that he understood a psychiatrist's report would be very expensive), nor did he seek to tender any fresh evidence after 30 January but prior to the appeal hearing.
11. In relation to the first category of evidence referred to above at [27], the appellant has not sought to tender a new or updated medical report from Dr Siefken. Given the absence of any written medical report, it is not possible for the Appeal Panel to determine whether there is sufficient reason to allow the admission of an updated report. It is also not possible for the Appeal Panel to assess whether Dr Siefken has expressed any views (during the medical consultation with the appellant on 24 December 2019, or otherwise) on material issues that were not already in evidence before the Tribunal. In Dr Siefken's May 2019 report tendered by the appellant at the proceedings below, the doctor stated his view that the appellant did not suffer from a mental illness and did not need treatment in this regard. The Tribunal at first instance considered his earlier report, as well as those of other medical practitioners.
12. In relation to the second category of evidence referred to at [27] above, this seems to be oral evidence to support an 'effluxion of time' argument - that the more time passes 'without incident', this somehow constitutes evidence that the appellant does not present an ongoing mental health risk, and thereby some risk to public safety.
13. In relation to the third category of evidence referred to at [27] above, there was no evidence presented as to the status of Court child access proceedings. Indeed the appellant acknowledged in the appeal hearing that any court orders or other arrangements about visitation rights to his son are not final and are subject to potential change.
14. In the circumstances of this case, we are not persuaded that, on appeal, we should allow the admission of further oral or written evidence from the appellant. In relation to alleged factual errors by the Tribunal, the appellant did not seek to tender any objective evidence to disprove relevant findings of fact. We have also noted that he did not seek to tender any updated medical report relevant to any ground of appeal.
15. Any oral evidence that effluxion of time has lessened risk to public safety does not relate to the Tribunal's decision at first instance, and would not have been evidence which was relevant at the time to that decision. It is also not relevant to an examination of the Tribunal decision below whether the appellant's circumstances have changed. The appellant is not of course prevented from applying for a new licence under the firearms licensing legislation, at which time he can provide updated evidence in support of any such application.
16. Even if we are wrong in what we have said about the appellant's further evidence, we cannot see that any of the further evidence described, if received by the Tribunal, would likely have produced a different result in the Tribunal below.
17. The appellant had a reasonable opportunity to provide all the evidence on which he sought to rely in the Tribunal below; there are no questions of procedural fairness raised in relation to the Tribunal proceedings below.

Ground 1 - Correctness of medical evidence

1. In determining whether the decision to revoke the licence was the correct and preferable decision, the Tribunal conceived its task as determining, on the applicable law and the evidence before it, whether (1) it is in the public interest for the appellant to continue to hold a firearms licence; (2) the appellant is a fit and proper person to hold a firearms licence; and (3) there is reasonable cause to believe that he may not personally exercise continuous and responsible control over firearms because of his previous attempts to commit suicide and his intemperate habits and being of unsound mind ([18], Decision).
2. The Tribunal considered medical evidence concerning the appellant in relation to each of these 3 issues identified above. The medical evidence was of particular significance in assessing that there is a real or appreciable risk in the appellant possessing or using firearms, and specifically whether he is a fit and proper person and can be trusted to have possession of firearms without danger to public safety (s 11(3)(a), s 24(2), Firearms Act); whether there is reasonable cause to believe that the appellant may not personally exercise continuous and responsible control over firearms because of any previous attempt to commit suicide or cause a self-inflicted injury, or because of the applicant's intemperate habits or being of unsound mind (s 11(4)(b), s 24(2)); and whether continued holding of the licence would be contrary to the public interest (s. 11(7), s 24(2), Firearms Act; cl 20 Firearms Regulation).
3. The appellant submits the Tribunal failed to consider correctly the medical evidence that he presented, both in regards to his ongoing mental health risk and the lack of medical evidence that he attempted self-harm. He argues that the Tribunal disregarded the weight of evidence of numerous medical specialists which all state that his ongoing mental state is stable, and that he is at no greater risk of harm with a firearm compared to the general population.

Findings on ongoing mental health risk

1. The Tribunal's findings in respect of the medical evidence submitted by the appellant are set out at [64] to [71]. The Tribunal did not disregard the medical reports tendered by the appellant at [64] to [66] as asserted, rather the Tribunal had specific regard to those reports. However, it gave limited weight to the psychiatric assessments on which the appellant relied for several reasons - none of them were based in the context of ongoing consultations and treatment; all state a conclusion without explaining the basis for the opinion expressed; and one assessment (that of Dr Leggett) was at least partly influenced by that doctor's opinion that the appellant had a legitimate work reason to own and use a firearm ([67], Decision).
2. The most recent medical evidence from either party was a report of Dr Siefken (report tendered for the appellant), who said in his assessment on 27 May 2019 that there is no evidence of a current mental illness. On the basis of that evidence the Tribunal concluded that the evidence did not establish the appellant is of "unsound mind" for the purposes of s 11(4)(c) and s 24(2). However, the Tribunal Member was not obliged to use this same evidence (and that of other medical reports) to come to the view that there was no ongoing mental health risk.
3. The Member's approach to the tendered medical reports is consistent with the treatment of medical evidence in Potts v Commissioner of Police [2010] NSWADT 311. In that firearms licensing case, the Administrative Decisions Tribunal had to consider what (if any) weight to give to a medical report which concluded that the applicant suffered from a mental illness such that he should not hold a firearms licence. That Tribunal found that the medical report in question did not contain sufficient detail and reasoning for the Tribunal to give the expert opinion any weight. For instance, the report did not outline the history of the patient or the doctor's understanding of the facts he applied to the criteria in order to reach his opinion. We adopt the analysis in this case.
4. The Tribunal in Potts cited the NSW Court of Appeal decision in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 for the proposition that a court should not act upon an expert opinion the basis for which is not explained by the witness expressing it. While the Tribunal is not bound by the rules of evidence and has some degree of procedural flexibility, nonetheless the Tribunal was required to make its finding based on "logically probative material" and "not on mere suspicion or speculation": Minister for Immigration and Ethnic Affairs v Pochi [1980] 44 FLR 41 at 67 per Deane J.
5. Here, a review of the tendered medical evidence indicates that the doctors who authored the respective reports were not necessarily appraised of all the background facts and relevant history of the appellant, and moreover did not have a continuing consultation/treatment relationship with the appellant. The Tribunal was entitled to give those reports limited weight on the basis set out at [67] of the Decision in reaching a view as to whether the appellant presented with ongoing mental health risk.

Findings on attempt to self-harm

1. The Tribunal's findings in relation to whether the appellant had attempted self harm are set out at [68] - [69]. He submits that there is a lack of medical evidence that he attempted self-harm. The respondent submits that there was (and remains) substantial objective evidence available for the Tribunal to find that the appellant had attempted self-harm. The Tribunal accepted that there is no direct evidence of a suicide attempt, but based on records of observations made by hospital staff and reactions of family members reporting that he had taken an overdose of medication and that he was suicidal, the Tribunal considered that it is more likely than not that some attempt at self-harm was made on or about 3 April 2018.
2. In reaching a correct and preferable decision about revocation of the firearms licence in question, the Tribunal's task includes that of assessing and weighing evidence in order to make findings of fact that ultimately assist the Tribunal in applying the law. In our view, the conclusions which the Tribunal reached were available to it on the evidence.
3. The Appeal Panel was taken to evidence before the Tribunal, including records from Lismore Hospital, NSW Ambulance and NSW Police, relating to the appellant's suicidal thoughts and possible overdose in early April in the context of a relationship breakdown and disputation about custody of his son. While we accept Dr Ros denies he attempted self-harm around this time, and that there is no direct evidence of a suicide attempt, nonetheless there was probative evidence available to the Tribunal on which to base its finding that "it was more likely than not" some suicide attempt had been made.
4. In terms of the leave grounds set out in Collins, there are no plain or readily apparent errors, or otherwise factual errors unreasonably arrived, that we can discern. There is nothing in the Tribunal's approach to the fact finding process in the present case that is unorthodox.

Grounds 2 and 4 - Child custody arrangements or disputes

1. In relation to appeal ground 2, the appellant contends that the Tribunal wrongly stated that he is still in a current custody battle with his ex-wife but that this is incorrect because there are court orders in place with respect to his son setting out future arrangements, which means that he has no current or future disputes with his ex-wife about custody.
2. At [34] of the Decision, the Tribunal states that, in relation to the current matter of negotiations with his ex-wife and access to his son, a court order has been in place since October 2018 addressing current and short to medium term access arrangements, and as such they are no longer a source of stress for him. The Member also states that further negotiations would take place in the latter half of 2019. At [71] the Tribunal accepted the appellant's evidence that access arrangements for his son had stabilised since October 2018 in the short to medium term. However, the Tribunal considered "the uncertainty as to ongoing arrangements for access and custody" as well as other factors listed at [71], meant that the Tribunal is not persuaded that it can be confident as to the risk posed to the appellant's mental health should circumstances change.
3. The respondent submits that it was open for the Tribunal to have regard to the possibility that future access disputes could occur, which may create a level of risk, noting that the appellant's own evidence had been that the access arrangements were confined to "short to medium term".
4. In appeal ground 4, the appellant argues that the Tribunal made factual errors that he had threatened to take his son forcefully from his ex-wife. He denies he made such threat. In his written submissions, he admits to saying that prior to the court orders, he was legally entitled to take his son home as there were no court orders in force to the contrary, but this does not establish that he ever intended to take his son home.
5. The Member at [70] of the Decision refers to evidence tendered by the respondent, being records from a family relationship centre mediator which referred to a telephone call from the appellant in which he stated he was distressed because access arrangements had changed and he could only have supervised access, and that he was going to drive down and take his son. At [73], the Tribunal refers to other evidence tendered by the respondent which indicated that the appellant had threatened to take his son forcefully from his ex-partner.
6. The respondent submits that in any event the particular findings of which the appellant complains were not the sole determining factors relied on by the Tribunal.
7. None of the guiding principles in Collins v Urban relevant to the grant of leave are made out. In the view of the Appeal Panel, the conclusions which the Tribunal reached were conclusions that were available to it on the evidence, and there are no obvious errors in the Tribunal's fact finding task.

Ground 3 - Compliance with firearms legislation

1. The appellant contends that the Tribunal erred in finding that the appellant lacked recognition of his obligations as a licence holder.
2. The Tribunal concluded that it was satisfied the appellant has a poor record of compliance with the requirements of the firearms legislation, and this was relevant to the exercise of the Tribunal's discretion in relation to both the 'fit and proper' and 'public interest' grounds. At [59] of the Decision, the Tribunal makes clear there were a number of reasons for its satisfaction in this regard - his failure to keep his rifle and ammunition safely leading to the 2016 prosecution; his admitted use of his firearm in his veterinary practice for purposes other than the approved genuine reason of primary production; his delay in surrendering his firearm after expiry of his previous licence in November 2017; and his provision of false information in completing his application for a new licence where he answered 'no' to a clear and unequivocal question on the form as to whether he had ever had a suspended, cancelled or revoked licence. The Tribunal considered and evaluated relevant evidence at [59] to [63].
3. The appellant challenges several specific findings of the Tribunal. One relates to the precise location of the firearm in his truck in August 2016 giving rise to a prosecution for failure to comply with safe storage requirements. He says it was under the seat of the car, not on the back seat as identified by the Member at [3] of the Decision. The respondent submits that, even if one accepts the appellant's assertion that the firearm was located in a different part of the truck to that identified in the Tribunal decision, the firearm was nonetheless stored contrary to the legislative safe storage requirements.
4. The Police COPs report dated 14 August 2016 in relation to an incident on the previous day describes the location of the rifle as on the back seat. This report was in evidence in the Tribunal proceedings. Accordingly, even if there were a factual error in relation to the location of the rifle, that error was made in the police report, and not by the Tribunal. In any event, the precise location of the rifle in the car is not significant. There is no dispute that the appellant was charged with an offence for failing to store the rifle in accordance with safe storage requirements under the firearms legislation. For the criminal sentencing procedure in s 10 of the Crimes (Sentencing Procedure) Act 1999 to be invoked, a finding of guilt as to the offence is required. The Tribunal referred to the offence and to the s 10 sentencing process accurately, and that this was one example of the appellant's lack of compliance with firearms legislation.
5. The appellant further challenges the Tribunal's findings in relation to the reasons why he failed to surrender his firearm to police until 2 January 2018. He had received a letter dated 15 December 2017 advising him that he was required to surrender any firearm in his possession. He argues that the Tribunal made an error in not taking into consideration that he had relied on verbal advice from the Licence Registry that he could keep possession of the firearm even though the licence had expired and no new licence had yet been issued.
6. As noted above, the Tribunal made a number of findings in relation to the appellant's failure to comply with firearms legislation, and reached its conclusion at [59] about the appellant's understanding and compliance with such legislation based on various pieces of evidence. No one piece of evidence, alone, was determinative on this issue. We also observe that the Tribunal Member had the benefit of hearing oral evidence from the appellant and did not accept his explanation for answering the reapplication form inaccurately in November 2017.
7. The conclusions reached by the Tribunal were available on the evidence before it. We cannot see that there is any proper basis on which leave to appeal on the merits should be granted.

Ground 5 - Ongoing risk to public safety

1. The appellant contends that the Tribunal erred in its expectation that he prove 'zero ongoing risk' to public safety. He argues that zero risk need not be proven, and that he presented medical advice to the Tribunal stating that he has no ongoing risk based on his current good mental health and that he is of no greater risk than the rest of the population who hold firearms licences. The respondent counters that the Tribunal did not impose a test that the appellant must prove there is zero ongoing risk to public safety.
2. The Tribunal referred to Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 in which Deputy President Hennessy stated, in relation to public safety: "The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
3. The Tribunal in this case did not propose, or impose, a test or requirement that it must be satisfied the appellant presents a zero ongoing risk to public safety. The Tribunal cited a number of relevant authorities which consider how the Tribunal is to determine whether there is virtually no risk, including Webb v Commissioner of Police, NSW Police [2004] NSWADT 110. In that case, the Tribunal emphasised that, in deciding whether there is a risk to the safety of the public, "…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."
4. In our view, the appellant's contention at appeal ground 5 is misconceived. The Tribunal did not misinterpret or misapply the law. The Tribunal did not require him to satisfy a 'zero risk' test. At [74], the Tribunal made its finding that, based on the evidence, it could not be satisfied there is virtually no risk to the safety of the public if the appellant has access to a firearm. The Tribunal further concluded at [77] that it could not be satisfied that there is no real or appreciable risk in the appellant possessing or using firearms, having regard to the history of self-harm threats, the ongoing matter of custody of and access to his son, and the appellant's failure to engaged in ongoing treatment as recommended following the hospital admission in April 2018.
5. There is no error of fact demonstrated. None of the leave grounds referred to in Collins v Urban are made out.

Conclusion

1. We consider that leave to appeal should be refused, and the appeal must be dismissed.

Orders

1. We make the following orders: 1. The time for lodging the Notice of Appeal is extended to 11 December 2019. 2. Leave is given to amend the notice of appeal by the addition of grounds 3, 4 and 5. 3. Leave to appeal on grounds other than a question of law is refused. 4. The appeal is dismissed. **********​​​​​​​ I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 April 2020