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Consideration

1. The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing.
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 Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
3. Considerations may go beyond the character of the Applicant and may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33].
4. When considering whether there is a reasonable risk to the public, the Tribunal should consider the risk to the Applicant himself, as a "member of the public": Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117 at [74].
5. In respect of considering the underlying principles of the Act which emphasise the need to ensure public safety., the Commissioner referred to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 ("Ward") in the context of submitting that the appropriate test in the circumstances of this case is that I must be satisfied that there is virtually no risk to public safety if the Applicant were given access to a firearm. However, since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because Her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. The "virtually no risk" comment was made in the context of the "fit and proper person" test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Act and comments in cases should not be substituted for those tests.
6. It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative.
7. Rather, as stated in Webb at [32] when considering the question of public safety: "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".
8. In applying these principles in determining the public interest, I accept as a preliminary issue that the Applicant's interest in shooting is a long-standing one that assists with his mental health and provides him with a form of "release". I also accept that the character references and statements relied upon by the Applicant support that the Applicant is a caring individual who has earned the admiration and respect of his friends, neighbours and peers.
9. However, as stated in Saxby v Commissioner of Police [2021] NSWCATAD 275 at [92]: Private interests, however, are not the only matters to be taken into account and the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.
10. Accordingly, the Applicant's genuine reason for holding a firearms licence cannot be given priority over the public interest. As observed by the Tribunal in Aubrey v Commissioner of Police [2005] NSWADT 266 at [21] "where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm".
11. The Commissioner submitted that there is too much uncertainty regarding the Applicant's mental health for the Commissioner to be satisfied that there is "virtually no risk" to public safety if the Applicant was granted a firearms licence. This was primarily based upon the submission that Dr Vernon's report did not constitute evidence of his current mental health. Rather, according to the Commissioner, Dr Law's covering letter and progress notes should be preferred given that those documents provide the "most recent" evidence of the Applicant's mental health.
12. This submission is difficult to reconcile with the documentation before me. As a matter of fact, it is Dr Vernon's report that provides the most contemporaneous documentary evidence as to the Applicant's mental state and not Dr Law.
13. Although Dr Law's covering letter is dated 7 May 2021 neither that letter nor the progress notes provide information relating to the Applicant as of that date. Rather, all the information provided is with reference to the progress notes, the last note being in respect of an appointment on 5 June 2019. No more recent medical history is included in Dr Law's documents.
14. This can be contrasted with Dr Vernon's report which is dated 27 September 2019, and answers questions posed as to the "current risk" and the risk of relapse in the future. To the extent that the more contemporaneous evidence as to the Applicant's mental health should be preferred as submitted by the Commissioner, this is the report of Dr Vernon and not the documents of Dr Law.
15. However, I do not find that the report of Dr Vernon and the covering letter and progress notes of Dr Law are conflicting such that I must prefer one over the other. The documents created by Dr Law provide progress notes of the Applicant's medical appointments from 19 June 2018 to 5 June 2019.
16. Dr Vernon's report provides answers to questions related to the Applicant's mental health post-dating his appointments with Dr Law and an opinion as to any future risk.
17. In these circumstances, it is not the case that a preference must be given to Dr Law's documents over Dr Vernon's report or vice versa. Rather the documents are part of one narrative evidencing that the Applicant suffered from chronic pain and intermittent thoughts of self-harm arising because of that chronic pain culminating in the Incident. However, since that time, his mental state has vastly improved from the acute state the Applicant was in, in December 2018 because of steps taken by the Applicant to effectively manage his chronic pain.
18. This is admitted by the Commissioner by way of written submission: "The Respondent accepts that as at the date of [Dr Vernon's report], the Applicant's psychological state has improved from the acute state the Applicant was in in December 2018."
19. In accepting that proposition the Commission must accept that to the extent that the Applicant's acute psychological state as at the time of the Incident created a public risk, that risk no longer existed as at 27 September 2019 being the date of Dr Vernon's report. There is no evidence before me to suggest that the Applicant's acute psychological state, as described by the Commissioner, has returned or is likely to return.
20. Rather, the evidence before the Tribunal runs counter to that proposition. As described above, Dr Vernon opines that the Applicant's psychological status has remained healthier as time has gone on and his pain management regime has improved with the potential for his pain management to improve even more with surgery. While Dr Vernon acknowledges that the Applicant, like anyone, has the potential to become suicidal if a cluster of certain circumstances developed; the likelihood that those circumstances would develop in the case of the Applicant are minimal given that the Applicant's circumstances have vastly changed from those existing in December 2018.
21. That those circumstances have vastly changed is supported by the Applicant's evidence and the references and statements of individuals described at paragraph 40. I also accept the evidence of the Applicant, whom I find was a frank and honest witness, as to the additional treatments undertaken by him to improve his pain management. The Applicant's completion of a pain management course in June 2020 is also supported by the documentary evidence in the form of the certificate from Innervate Pain Management as described at paragraph 40 above.
22. I am satisfied that the Applicant is receiving effective treatment and his psychological state is vastly improved. Additionally, in respect of evidence of a period of stability - I reject, consistent with my findings at paragraphs 27 and 28, that the period of stability is limited to only approximately 18 months. I accept the Applicant's evidence that he has not experienced suicidal ideation since the Incident which equates to a period of stability of approximately three years.
23. In these circumstances, I find that given the evidence any risk of relapse is minimal and may be excluded from consideration consistent with the decision of Webb.
24. Accordingly, in respect of the objection of the Commissioner based on mental health grounds, the totality of the evidence leads me to the conclusion that it would not be contrary to the public interest for a firearms licence to be issued to the Applicant, and I so find.