Ros v Commissioner of Police, NSW Police Force

Jurisdiction

1. The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act).
2. Section 75(1)(c) of the Firearms Act confers jurisdiction on the Tribunal to review the decision to revoke the applicant's firearms licence.

The legislation

1. The underlying principles of the Act are stated in s 3(1) of the Act, and relevantly include: 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety: 1. by imposing strict controls on the possession and use of firearms, and 2. by promoting the safe and responsible storage and use of firearms.
2. Section 24 of the Firearms Act sets out the circumstances in which a licence may be revoked. It relevantly provides: 24 Revocation of licence … (2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations.
3. For the purposes of s 24(2)(d) of the Act, clause 20 of the Firearms Regulation 2017 (the Regulation) provides: The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
4. The Commissioner may issue or refuse a licence under s 11 of the Firearms Act. Under s 11, a licence must not be issued unless: (3) … (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and … (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and … (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of: (a) the applicant's way of living or domestic circumstances, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind.
5. The Commissioner may refuse to issue a licence if the Commissioner considers that issuing the licence would be contrary to the public interest (s 11(7)).

Issues

1. The decision to revoke the firearms licence was based on s 11(4)(b) of the Firearms Act, that is, whether there was reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of any previous attempt to commit suicide or cause a self-inflicted injury; and cl 20 of the Firearms Regulation and s 24(2)(d) of the Firearms Act, that the Commissioner was satisfied it was not in the public interest for the applicant to continue to hold the licence.
2. The internal review decision was based on s 24(2)(d) of the Act and cl 20 of the Regulation, and s 11(3)(a) of the Act, which requires that the Commissioner be satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.
3. The Tribunal is required to determine, on the basis of the applicable law and the evidence before it, whether the decision to revoke the firearms licence is the correct and preferable decision. That requires the Tribunal to determine whether: 1. it is in the public interest for the applicant to continue to hold a firearms licence; 2. the applicant is a fit and proper person to hold a firearms licence; 3. there is reasonable cause to believe that the applicant 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.

Evidence

1. The Commissioner relied on the following evidence: 1. Documents filed in accordance with s 58 of the ADR Act on 18 December 2018, including the applicant's applications for a licence, documents relating to the suspension of his licence in 2016 and the revocation in 2018, and correspondence relating to the internal review (ex R1); 2. Documents obtained under summons from NSW Ambulance Service and Lismore Base Hospital, filed on 7 May 2019 (ex R2).
2. The applicant relied on a written statement, and medical reports from Dr Andrew Leggett, provided to the Firearms Registry on 7 May 2018; Dr Brian Witt (23 May 2019); Dr Gary Persley, provided in support of the internal review request (1 October 2018); and Dr Jan Peter Siefken (27 May 2019), provided for the Tribunal proceeding (ex A1). The applicant gave oral evidence at the hearing.
3. Both parties provided written submissions.

The Commissioner's case

1. The respondent contends that the decision to revoke the applicant's firearms licence is the correct and preferable decision, on the grounds that: 1. It is not in the public interest for the applicant to continue to hold a firearms licence; 2. The applicant is not a fit and proper person to hold a firearms licence; and 3. There is reasonable cause to believe that the applicant 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.
2. The respondent submits that: 1. The applicant has previously failed to comply with the requirements of the firearms legislation, as evidenced in the 2016 prosecution and the failure to submit a renewal application on the expiration of his earlier firearms licence in 2017; and 2. The applicant is not a fit and proper person having regard to the April 2018 admission to hospital, and behavioural issues including past violence in a domestic relationship and aggressive behaviour.
3. In support for the contention that it is not in the public interest for the applicant to hold a licence, the respondent submits that there is a real and appreciable risk to public safety, based on the following factors: 1. The applicant has made an attempt on his life in the past; 2. The applicant was admitted to hospital on 3 April 2018 with depression and suicidal ideation and was perceived to be at high risk of suicidal behaviour; 3. During his mental health assessment at the hospital the applicant acknowledged he had been depressed, thought of suicide in the past, had access to means to commit suicide (firearms and drugs), intended on committing suicide that day and had texted friends to say goodbye; 4. The applicant has been assessed as being at "substantial long term risk of suicide" and there is no evidence that the stressors elevating this risk have been effectively dealt with by the applicant; and 5. The applicant has an ongoing custody dispute with his ex partner which has in the past been causative of his mental health issues in particular his suicidal ideation.
4. The respondent submits that the Tribunal should give limited weight to the opinions expressed by Dr Leggett and Dr Persley that there is no current substantial psychiatric reason to withhold a firearms licence, as those reports do not set out the psychiatric opinion expressed. The latter report does not address the likelihood of the applicant's mental health issues resurfacing, which is a substantial omission given the applicant's acknowledgement that his depression is a recurring issue, and given Dr Leggett's opinion that the applicant represents a "substantial long term risk of suicide".
5. The respondent submits that the applicant has in the past demonstrated a disregard for the storage requirements of the Firearms Act, leading to the dismissal of the Not Keep Firearm Safely charge in November 2016. Although it was a minor offence and treated as such by the court, the incident is telling of the applicant's overall attitude to his ownership of firearms and the strict regulations imposed by the Firearms Act and the Regulation. Further examples of this attitude are: 1. The applicant has been registered as a veterinarian since 2010 and has acknowledged he possessed firearms due to his occupation but it was not until 30 January 2018 that he applied to add the genuine reason of "animal welfare" to his firearms licence; 2. The applicant's belligerent attitude to police during the seizure of his firearms on 5 April 2018 including the act of throwing his firearm to the ground in front of police; 3. The applicant claiming in his November 2017 licence re-application and January 2018 licence application that he had not had a firearms licence suspended, cancelled or revoked when in fact he had; 4. The applicant's possession for approximately 2 weeks of his firearms in the period 15 December 2017 to 2 January 2018 notwithstanding the expiry of his licence and the notification that he was no longer authorised to possess firearms.
6. The respondent contends that the applicant is not a fit and proper person to hold a firearms licence, having regard to the factors outlined above, and to his acknowledgement of having been violent towards previous domestic partners, his volatile temperament, intermittent binge drinking and narcissistic personality traits. Further, the ongoing dispute concerning custody of his son and his threat to take his son by force from his ex partner's house are relevant.
7. The respondent contends that there is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms for one or more of the reasons listed in s 11(4). The grounds on which the Tribunal should reach that conclusion are: 1. The applicant has attempted suicide at least once; 2. Although firearms were not involved as a method in that attempt, the applicant has consistently noted to medical staff that he has access to the means to commit suicide, including his firearms; 3. The applicant has repeatedly considered suicide; and 4. There is no evidence before the Tribunal apart from the applicant's self-serving statements that his mental health condition and causative social stressors have resolved.
8. The respondent submits that the Tribunal would also be satisfied on the evidence before it that the applicant is of unsound mind, as that term is used in s 11(4) of the Firearms Act.
9. In oral submissions the respondent also relied on the grounds for revocation in s 24(2)(b)(i) and (ii) of the Firearms Act, namely that the applicant supplied information which was to his knowledge false or misleading in a material particular in the application for the licence, and contravened provisions of the Act and Regulation. The applicant's medical evidence does not give an assessment of current or future risks of flare ups and his ability to manage and deal with situations. The respondent accepts that up until now there has not been an issue in the past few months however the concern is with the ongoing situation including the status of the applicant's custody of his son. The applicant's level of drinking on Dr Leggett's evidence contributes to the long term risk of suicide, and the applicant is not engaging in ongoing counselling or psychotherapy. There is a risk to public safety and to the applicant. The respondent submits that the applicant can continue to practise as a veterinarian without a firearm, as he was able to do so for three years before he had a licence.

The Applicant's case

1. In his written submissions responding to the respondent's submissions, the applicant states that until August 2016 he had no interactions with police for serious offences other than traffic infringements. On 13 August 2016 he had a verbal argument with his then partner, and during that altercation she threw a large printer out the front door, the noise from which resulted in a neighbour calling Casino Police. He had consumed 3-4 schooners of beer and was not under the influence of drugs, and was not tested by police. He responded to the police question whether he owned a firearm and took the police to his vehicle. The firearm was in a black rifle bag under the back seat and also in the bag was the bolt and some ammunition. That was a clumsy oversight because of his recent use of the firearm in carrying out his duties as a veterinarian. After the firearm was returned he placed on it a trigger combination lock and an additional locked box for ammunition and bolt.
2. The applicant stated that he notified the NSW Firearms Registry in late 2017 as soon as he became aware that his firearms licence had expired. Over the proceeding weeks he had numerous conversations with Registry staff and had private conversations with staff he knew locally. When the matter was not resolved after a week or two, he made the decision to surrender the firearm at the Casino Police Station. No legal action was taken to his alleged firearm possession without a licence; a new application was lodged; and he was granted a new firearms licence with additional genuine reasons stated to cover all conceivable uses for his possession and use of that firearm.
3. In relation to the mental health crisis that occurred in April 2018, the applicant stated he has never attempted self-harm or suicide. The report of attempted self-harm and suicide was made by a member of the public not present with him during the time and days of the alleged incident. On examination at Lismore Hospital there was no evidence of self-harm, no evidence of a drug induced suicide attempt, and no immediate threat of personal or public safety risk. He was diagnosed with depression brought about by a temporary but relievable situational crisis, which has since been managed, and circumstances have changed. He was released from hospital under a Community Mental Health Plan, was monitored by community nurses, and had a follow up visit with two psychiatrists. The current psychiatric report by Dr Seifken on 27 May 2019 states the opinion that he is of current sound mind, no longer in a depressed state, and no greater risk than the general population in holding a firearm.
4. In relation to the current matter of negotiations with his ex wife and access to his son, there is in place since October 2018 a court order detailing current and short to medium term access arrangements and as such they are no longer a source of stress for him. Further negotiations will take place towards the latter half of 2019.
5. The applicant submits the revocation of his firearms licence is not the correct decision, on the following grounds: 1. he requires a firearm to carry out his legal daily duties as a large animal veterinarian and primary producer, to humanely and safely euthanase large animals and also vermin such as wild dogs on his property; 2. assumptions have been made by police that he has attempted suicide by overdose of drugs but no specific drug has been implicated and there is no medical evidence of such an overdose ever having occurred; 3. the overwhelming medical evidence of four doctors including three specialist psychiatrists is that his depression is under control and he is managing the instigators of previous episodes; 4. he has no current or future disputes with his ex wife regarding access to his son; 5. at no time has he made or had ideations of threats to the public or to people close to him, nor had a complaint or allegation of public threats or violence made against him, and there is no basis for the stated argument of public risk to maintain revocation of his firearms licence; 6. he learned a lesson in firearm ownership and its responsibility after the charge in 2016, and purchased a trigger lock and additional ammunition safe; in his new vehicle the rifle was locked in a secure cage bolted to the ute's steel tray floor out of sight under a black canvas canopy; and when not likely to be needed the rifle was stored in the registered address locked in an approved safe; 7. he rejects the allegation that he is of unsound mind, having worked in a very intellectually demanding profession interacting with clients on a daily basis and requiring advanced decision making abilities; 8. at no point has he expressed acknowledgement of alleged violence towards any of his sexual partners; 9. in relation to his alleged binge drinking, he is no different to the general population in that regard and the likelihood is that many other licensed firearm holders also occasionally have more than a standard daily intake of alcohol; he is a sole veterinary practitioner on call for emergencies 24 hours a day seven days a week; 10. in relation to the narcissistic personality traits mentioned by one psychiatrist, that was in response to disapproval of his failure to supply a requested medical report, and it is not the criteria of every firearms applicant to undergo a personality assessment.
6. In oral evidence the applicant stated that he had occasionally used his firearm in his practice as a vet between November 2007 to January 2018. After 2016 things changed, and that was a lightbulb moment. He pleaded guilty to the charge because there was ammunition in the bag that he had not removed; the rifle was always in the bag in a towel under the back seat. The issue was with the ammunition in the bag, not having the rifle in his car.
7. In relation to the renewal of the licence in 2017, the applicant's oral evidence was that the process dragged on. He did not dispute that a call may have been made to him on 1 November 2017 to advise that his renewal application had not been received. At no time was he directed to surrender the firearm, nor did police contact him. As to the declaration on the licence renewal form, he answered "no" to the question about whether he had ever had a licence suspended because the court case was over and he had the firearm back. The Firearms Registry would have a record and if there was a false answer they would get back to him. The applicant disputed that he "knowingly" gave a false answer to the question. The same answer applied to the re-application form.
8. The applicant agreed that he had received the letter dated 15 December 2017 directing him to surrender his firearm, and that he surrendered it on 2 January 2018. The rifle was stored at his address, there was ongoing communication, and no issue was raised with him that there was a problem.
9. The applicant was taken in cross examination to the ambulance and hospital records relating to his hospital admission on 3 April 2018. The applicant agreed that his mother and sister were concerned about him. He disputed that he had attempted suicide the previous Sunday, stating there is no evidence of that. There is no evidence anyone witnessed an incident of self-harm. He had fallen into a trance and afterwards people had inferred that was induced by drug ingestion, but there is no evidence of an actual drug overdose. He agreed he was depressed that the time, because of separation from his partner as the main issue, together with general issues in life including access to his son. The text message "things would be better if I wasn't here" was flippant and there was no direct threat of something imminent.
10. The applicant stated that there had been verbal arguments but no physical violence with his former partner. In relation to the mediator's comments and referral in May 2018, the applicant stated that to his knowledge he did not make a direct threat. He was frustrated and annoyed at how the system was working. He did not accept that he made rude and verbally aggressive calls to Dr Persley's staff. He did vent his frustration when the letter was not provided, but was not rude and verbally aggressive, and he does not think he became truculent and unreasonable. He agreed that in hindsight he was disrespectful to the police officers who came on 5 April 2018 to seize his firearms, but in the context of the day and time, did not agree he had been unreasonable. He refutes that he has a problem with law enforcement, and it was in the heat of the moment.
11. The applicant was taken to the records relating to the mental health plan after his discharge from hospital. He disputed that the mental health team ended involvement because he had refused follow up care and because ongoing management would have a negative effect. If he had been an ongoing risk there would have been follow up. The interactions were not of further benefit and the follow up appointments with a psychiatrist were his own doing. He does not fit the main criteria of risk factors for self-harm: there is no substance abuse, he is not an alcoholic or addicted. He saw Dr Leggett once soon after the April 2018 incident and again as part of the ongoing plan. He saw Dr Persley once because he had a referral, and the second appointment was solely to get a medical assessment for the Tribunal. He saw Dr Siefken because he was available.
12. The applicant stated that on the weekend at home he may drink 6-7 beers in the afternoon, and mid week one at most. He does not deny his previous consumption was higher.
13. The applicant submits that he is at no greater risk than others in having a firearms licence, and his genuine reasons still exist. Not having a firearms licence restricts certain aspects of his veterinary practice, as a firearm is the safest and most humane method of euthanasing cattle. Hypothetically he still has the means to carry out a threat of suicide. He accepts it is a short period of time since the April 2018 incident however he feels completely fine.

Discussion and findings

1. The general principles to be applied in considering whether it is in the public interest for the applicant to hold a firearms licence, or whether he can be considered to be fit and proper to hold a firearms licence, and the application of s 11(4) of the Firearms Act, are well established.

Public Interest

1. What is meant by the term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, the Industrial Relations Court stated at 681: The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
2. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] the Appeal Panel said that the "public interest": …is an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual.
3. In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23] Deputy President Hennessy stated: There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.
4. Section 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety: accordingly, the community's interests take precedence over the private interests of an individual. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Deputy President Hennessy said that in terms of public safety: 27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.
5. That case dealt with whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130]-[134].
6. The question of risk is to be approached taking into account all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64]-[66]; Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public, including the safety of the applicant himself: Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].
7. The public interest also requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police, New South Wales Police Service [2003] NSWADT 30 at [34]. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at [25].

Fit and proper

1. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive, but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
2. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184. Public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 at [37]. The test for whether a person is fit and proper is guided by similar considerations to those applying to the "public interest": Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59 at [72]-[79]. In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22]. Similarly, in Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 the Tribunal stated: 32 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr Webb's licence is reinstated. In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration. In particular, the likelihood of risk to the safety of the public must be assessed by reference to Mr Webb's prior conduct. The conduct of concern is that which has led to his convictions. It is appropriate that any exercise of discretion accord with the principles and objects of the Act.

Section 11(4)

1. Section 11(4) of the Firearms Act requires the Tribunal to determine whether there is "reasonable cause to believe" that the applicant may not personally exercise continuous and responsible control over firearms because of one of the factors specified. In Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013 at [10] Emmett J said that the words "reasonable cause to believe": …are not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief. It is not necessary to demonstrate whether or not the applicant has the belief.
2. In Cross v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 26 Senior Member Walker summarised the relevant principles for consideration of the term "unsound mind" as used in s 11(4) of the Firearms Act: 43. While the term "unsound mind" is not defined in the Act, the tribunal explained the meaning of the phrase in the context of applying s 11(4)(c) of the Act in Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 185: 22 In interpreting the phrase "unsound mind" the ordinary grammatical meaning of the phrase must be applied. "Unsound" is defined in the Macquarie Dictionary, 3rd edition, The Macquarie Library, as "not sound; diseased, as the body or mind." … 44. In Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315, [57], I observed that Sweet's adoption of the standard "incapable of managing his affairs as a reasonable man would do" appears to set a rather high bar, suggesting a mental condition causing a far-reaching extent of mental incapacitation. 45. In Sweet the tribunal went on to say that the term "unsound mind" must be interpreted in light of the Act's overriding principle as set out in s 3(1)(a) of firearms possession and use being conditional on the need to ensure public safety. "To be of 'unsound mind' a person's mental condition must at least have the potential to put public safety at risk if that person has the possession or use of a firearm" (at [26] - [27]). 46. In this context suicide attempts are relevant, though not conclusive. As Hennessy DP pointed out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [22], "Not every suicide attempt will justify the revocation of the person's firearms licence. The Tribunal must assess the likelihood that [the applicant] will attempt suicide or self-harm again and, if that happens, the likelihood that a firearm will be used. There is no suggestion that [the applicant] would attempt to harm others". 47. Her Honour concluded that the applicant's previous attempt did not give rise to reasonable cause to believe that the applicant would not personally exercise continuous and responsible control over firearms. The test, in context, was an objective one (State of New South Wales v Taylor [2001] HCA 15, [10]), her Honour said, setting aside the revocation of the applicant's license.
3. In Cross the Tribunal concluded that a finding of unsoundness of mind will normally require recent expert evidence.

Findings

1. The licence history for the applicant's firearms licence, including the suspension of his previous licence in August 2016 and prosecution for failing to keep the firearm safely; the expiry of that licence in November 2017 and the application for a new firearms licence in January 2018; and the suspension of that licence in April 2018 and revocation in July 2018, is not in dispute.
2. It was not in dispute, and the Tribunal finds, that: 1. The applicant's firearm was seized by police on 13 August 2016, following an incident involving his former partner, and his licence was suspended on 15 August 2016; 2. The applicant was charged with an offence of "Not Keep Firearm Safely - Not Prohibited Firearm/Pistol" on 14 August 2016; that charge was dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999 on 16 November 2016; 3. The suspension of the firearms licence was lifted, and the applicant's firearm was returned on 30 November 2016; 4. The firearms licence expired on 8 November 2017; 5. The applicant surrendered his firearm at Casino Police Station on 2 January 2018 (ex R1, p 10); 6. The applicant completed an application for a firearms licence for the genuine reasons of Primary Production, Recreational Hunting/Vermin Control and Animal Welfare on 15 January 2018 (ex R1, p 30); 7. The applicant's firearm was returned on the issue of a new licence on 30 January 2018 (ex R1, p 10); and 8. On 5 April 2018 the firearms licence was suspended, the notice of suspension being served by police (ex R1, p 14).

(1) Compliance with firearms legislation

1. The Tribunal is satisfied that the applicant has a poor record of compliance with his obligations under the firearms legislation. That is established by his failure to keep his rifle and ammunition safely, leading to the prosecution in 2016; 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 the expiry of his previous licence in November 2017; and his provision of false information in completing the application for a new licence.
2. The form "Re-Application for a Personal Firearms Licence" (signed and dated 27 September 2017, stamped as received on 17 November 2017) at question F asks "Have you in NSW or elsewhere: (a) Been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?". The applicant answered that question "No" (ex R1, p 27). The "Application for a Personal Firearms Licence" signed and dated 15 January 2018 had the same question, and the same response (ex R1, p 31). Both forms contain the declaration "I understand that it is a serious offence under the Firearms Act 1996 to make a statement or provide information that is false or misleading & I certify that all the information contained in this application is true and correct in every detail".
3. The Tribunal does not accept the applicant's explanation as to why he answered "No" on both forms. The question is clearly worded and unambiguous. The applicant knew his firearms licence had been suspended for a period of approximately three months in 2016. The terms of the declaration leave no room for an assumption that it is a matter for the Firearms Registry to check the relevant records and follow up if the answer is not correct.
4. The applicant's licence expired on 8 November 2017. The applicant did not dispute that a telephone call to advise his renewal forms had not been received was made on 1 November 2017 (ex R1, p 64), or that he received a letter dated 15 December 2017 advising him that his documentation to renew the firearms licence could not be accepted as the licence had expired, and he was required to surrender any firearms in his possession. The applicant's explanation as to why it took until 2 January 2018 for him to do so was that he had stored the rifle properly and no issue had been raised with him that it was a big drama. The letter of 15 December 2017 states clearly that the applicant is no longer authorised to possess and use a firearm and should surrender his firearms, and the Tribunal is of the view that the applicant's explanation as to why he waited demonstrates a lack of understanding as to the importance of complying with regulatory obligations.
5. Those matters demonstrate that the applicant does not recognise that the responsibilities of and obligations imposed on a licence holder are of a serious nature, and that a licence holder must act in accordance with them, and not wait for the regulatory authorities to take steps to enforce those obligations.

(2) Mental health issues

1. Dr Leggett's report of 1 May 2018 (ex A1) addressed to the Firearms Registry in connection with the suspension of the firearms licence states that "there is no continuing mental health safety reason why his firearm, surrendered in the context of a prior mental health assessment, should not be returned to him". Dr Leggett states that the applicant has a legitimate occupational reason to own and use a firearm, and that the applicant's mental health is "substantially improved", and that he is "now no greater risk with respect to firearm safety than the general population".
2. Dr Persley's report of 1 October 2018 addressed to the Firearms Licensing section (ex A1) records that the applicant had seen him on two occasions, on 15 May 2018 and 27 August 2018. Dr Persley stated that at both dates he would not have regarded the applicant as suffering with a psychiatric disorder such that he could not hold a firearms licence. Dr Persley recorded that on being advised by his administrative staff that the report as requested by the applicant could not be completed in time because he was on leave, the applicant's reaction led to "a series of rude and verbally aggressive phone calls". Dr Persley states that "there is a trend that when under stress or his demands not being met he becomes truculent and unreasonable"; however he had not threatened violence to others.
3. Dr Witt, the applicant's GP, reported on 23 May 2019 (ex A1) that the applicant's mental state "has been stable", and he did not think that the applicant was "a danger to himself or others". Dr Siefken's report dated 27 May 2019 states that "Bruno presents with no evidence of a current mental illness, or psychiatric reason to withhold a firearms licence".
4. The weight that can be given to those reports is limited. None of the psychiatric assessments on which the applicant relies are based in the context of ongoing consultations and treatment. All state a conclusion without explaining the basis for the opinion expressed. Dr Leggett's assessment appears to have been influenced to some extent by his opinion that the applicant has a legitimate work reason to own and use a firearm (ex R2, p 179). While acknowledging those limitations, the most recent medical evidence from either party is that of Dr Siefken on 27 May 2019, who formed the opinion on his assessment of the applicant that there was no evidence of a current mental illness. On the basis of that evidence the Tribunal concludes that the evidence does not establish that the applicant is of "unsound mind", as considered in Cross.
5. Relevant to the other elements of s 11(4), and to the broader issues going to the public interest, are the records obtained from Lismore Hospital. The Tribunal notes that the NSW Ambulance records (ex R2, pp 8-14) and the NSW Police COPS system documents (ex R1, pp 11-12) confirm that on 3 April 2018 police and ambulance were alerted to concerns for the applicant's welfare, reporting that he had taken an overdose of medication the previous Sunday, and was suicidal. The applicant was taken to hospital by his family. The hospital records include a record by Dr Pullen that the applicant presented with suicidal ideation, had recently separated from his partner and felt stress; and had been threatening suicide and may have taken an overdose on Sunday night (ex R2, p 41). The Clinical Nurse Consultant records on 3 April 2018 (ex R2, pp 43-44) that the applicant's marriage break up was two and a half years earlier and his recent relationship ended at Easter after an incident of violence, and that the applicant thought his former partner may take an AVO against him for frightening has children "(Has assaulted her on a few occasions previously)". Later records include notes following a referral to the mental health team by a family mediator in May 2018 (ex R2, pp 56-58), and a record on 23 May 2018 by the Mental Health Social Worker (ex R2, p 59) that the applicant had "threatened to hang up a drip and euthenase self". Those records are consistent with the applicant's evidence that the issues at that time concerned his dispute with his former partner about access to his son.
6. The applicant disputed much of what was recorded in the hospital records relating to his admission in April 2018, stating that there was no evidence that he had attempted to take his life, and that the opinions expressed including by medical and nursing staff were just the opinions of others. However, the records are consistent, and demonstrate that close family members had sufficient concern for the applicant's safety and well-being on 3 April 2018 that they intervened, and had reported that he had attempted suicide some days before and was threatening self-harm. The Tribunal accepts that there is no direct evidence of a suicide attempt, however, based on the reactions of those family members and the observations made on the assessments in hospital, the Tribunal is satisfied that it is more likely than not that some attempt at self-harm was made.
7. Dr Witt confirms the applicant's history of depression and suicidal ideation in April 2018, and Dr Persley confirms that in May 2018 the applicant had suffered an adjustment order with a depressed mood. In addition to the hospital records of threats to self-harm, on 15 May 2018 the family relationship centre mediator referred the applicant to the Mental Health Contact Centre (ex R2, p122) based on a telephone call in which the applicant stated he was distressed because his ex partner had changed the current arrangement for access to his son, and he could only have supervised access; that he was "going to hang a drip up in the next hour"; and that he was going to drive down to take his son. The applicant could not recollect that, however accepted that there was nothing to dispute that he had said it.
8. The medical reports including the hospital records support the applicant's evidence that contributing factors for the incident in April 2018 were the breakdown of his relationship, work factors, and the issue of access to his son. The Tribunal accepts the applicant's evidence that access arrangements for his son have stabilised since October 2018 in the short to medium term. However, in the context of the uncertainty as to ongoing arrangements for access and custody, the threat to take his son, the threats of self-harm, the confirmation in the medical reports of the applicant's reactive personality, and Dr Leggett's opinion that there is a continuing risk of suicide at times of acute crisis, the Tribunal is not persuaded that it can be confident as to the risk posed to the applicant's mental health should circumstances change.
9. In that regard, the Tribunal notes that Dr Sietken refers to, but does not elaborate on, the presence of static risk factors. The applicant has not followed up on Dr Leggett's recommendation of continuing treatment in his report of 1 May 2018 to Dr Persley, to whom he referred the applicant for assessment with a view to ongoing care on discharge from the Acute Care Community Mental Health Service. In that report (ex R2, pp 178-9) Dr Leggett states that he is discharging the applicant for ongoing care of a private psychiatrist skilled in psychotherapy of patients with borderline/narcissistic deficits, on the basis he may need to persist with ongoing psychotherapy for 1 -2 years more. Contrary to the applicant's evidence, the mental health team records confirm that the applicant was discharged from the team's care as he had refused follow up care with the recommended psychiatrist, and it was concluded that ongoing management would have a negative iatrogenic effect (ex R2, p 59).
10. The applicant denied ever having been physically violent or threatening. However, Dr Leggett's report to Dr Witt includes the comment (ex R2, p 179) that the applicant had been "prone to rage and at times to physical violence in his marriage before it broke down". The applicant has threatened to forcefully take his son from his ex partner (ex R2, p 57). He became verbally aggressive with police when they attended on 5 April 2018 to serve notice of suspension and seize his firearm, and threw the rifle bag on the ground (ex R1, p 14). The Clinical Nurse Consultant undertaking the assessment of the applicant on 3 April 2018 recorded that he was concerned his ex girlfriend may take an AVO against him "(has assaulted her on a few occasions previously)" (ex R2, p 44).
11. Based on the evidence as to risk of recurrence, the failure to follow up on recommended treatment, and the applicant's propensity to unreasonably aggressive responses, the Tribunal cannot be satisfied that virtually no risk is posed to public safety if the applicant has access to a firearm.

Conclusion

1. The underlying principles of the Firearms Act stated in s 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety.
2. While the applicant asserts that the prosecution in 2016 was a "lightbulb" moment, the Tribunal is satisfied that the applicant's record of compliance since then shows that he does not recognise the serious responsibilities and obligations imposed on a holder of a firearms licence.
3. The Tribunal cannot be satisfied that there is no real or appreciable risk in the applicant possessing or using firearms, having regard to the history of threats of self-harm, the ongoing matter of custody of and access to his son, and the applicant's failure to engage in ongoing treatment as recommended following the hospital admission in April 2018.
4. The Tribunal accepts that the applicant's work as a veterinarian requires him to euthanase animals, and accepts his evidence that access to a firearm enables him to do so safely and humanely. However, while that work could constitute a genuine reason for holding a firearms licence, the applicant's interest in maintaining ownership and use of a firearm is subordinate to the public interest in maintaining public safety: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at [69].
5. The Tribunal is not satisfied that it can be said that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety. The Tribunal is satisfied that is not in the public interest that he continue to hold a firearms licence. The decision to revoke his firearms licence is the correct and preferable decision, and the decision under review must therefore be affirmed.

Order

1. The Tribunal orders: 1. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2019