Saxby v Commissioner of Police

NCAT Administrative and Equal Opportunity|2021-09-08

REASONS FOR DECISION

On 28 May 2018 the Applicant, Mark Saxby, applied to the Respondent to renew his Category AB firearms licence. On 12 September 2020 his application was refused. That decision was affirmed on internal review. The Applicant now seeks review by this Tribunal.

The legislative framework

The principles and objects of the Firearms Act 1996 (the Act) are set out in s 3 of the Act, relevantly: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and ... (2) The objects of this Act are as follows: ... (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms …
The Act, in setting out restrictions on the issue of licences, provides, relevantly: 11 General restrictions on issue of licences … (3) A licence must not be issued unless: (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. … (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this Statement or is about to be a resident of this State. … (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: … (c) the applicant's intemperate habits or being of unsound mind. ... (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

Tribunal's approach

Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28] - [34].

Evidence

In addition to the documents filed pursuant to s 58 of the ADR Act, the Respondent relied on the statement of Bettina Walker dated 31 August 2021, which annexed extracts from the Applicant's file at the Firearms Registry (Registry).
The Respondent had issued summonses to the Applicant's medical practitioners, as follows, and I was referred to extracts from material: 1. Dr Paul Burford, the Applicant's former general practitioner 2. Dr Cynthia Parker, the Applicant's former treating psychiatrist 3. Dr Adrian Gilliland, the Applicant's current general practitioner 4. Dr Alan Doris, the Applicant's current treating psychiatrist
For completeness, I reviewed other relevant summons material.
The Applicant did not file any medical evidence in support of his Application for Review; he relied on Dr Doris' medical reports dated 8 October 2020 and 13 April 2021 which had previously been provided to the Respondent and which were contained in the s 58 Documents.
The Applicant provided a statement in email form, gave evidence, and was cross-examined. The Applicant also provided a reference from Danny Rosewood, the Range Captain at the Coffs Harbour Branch of the Sporting Shooters Association of Australia (NSW).

Jurisdiction

The first matter to be considered was in relation to the Tribunal's jurisdiction to deal with the Application for Review. On 25 June 2021 Dr Doris reported to Dr Gilliland that the Applicant proposed to move to Queensland in July. Dr Doris also wrote in his report of 19 July 2021 of the Applicant's plans to relocate to Queensland. A firearms licence can only be granted to residents or proposed residents of NSW: s 11(3)(d) of the Act. Hence it was necessary to first consider if there was an issue with Applicant's current residence. Although Dr Doris' report gave the impression that the Applicant's plans were well advanced, the Applicant's evidence was that, although the family's move was "definitely on the cards", it was still in the planning stages. He said his son had been offered a football opportunity in Mackay but it could not be taken up due to travel restrictions. The family was still investigating accommodation and schooling, and there were no immediate plans to move.
I came to the view that the Applicant is currently a resident of this State, and hence is entitled to have his application for a firearms licence considered.

CONSIDERATION

The Respondent submitted that it is not in the public interest for the Applicant to hold a firearms licence.
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 objects of the Act and the strict controls under the Act in relation to licensing. 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 deciding 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].

Applicant's firearms history

The Applicant was first issued with a Category AB firearms licence in March 2014 for the genuine reason of 'recreational hunting/vermin control'. That licence expired in June 2016, and a fresh licence was applied for and issued, expiring in June 2018. Then, in anticipation of the expiry of that licence, the Applicant applied to renew his licence on 28 May 2018. He sought a discount, referring to his Department of Veterans' Affairs (DVA) Health Care Card.
From Ms Walker's evidence it appears that on 20 July 2018 the Applicant enquired as to progress of his application. The file note records that the Applicant was informed that a letter was required from a doctor explaining on what basis he was receiving a DVA pension. The Applicant was recorded as having said he would post a letter the following week. A letter was recorded as having been sent to him about the information sought on 23 July 2018. On 10 August 2018 there is a record that the Applicant phoned about whether the doctor's letter had been received. A medical certificate from Dr Gilliland dated 3 August 2018 was received by the Registry on 15 August 2018. There, Dr Gilliland wrote that the Applicant's "disability does not exclude him from holding a firearms licence".
Another letter was sent to the Applicant on 24 October 2018, and a further letter on 21 November 2018 and he was informed that the doctor's certificate which had been provided was inadequate.
On 18 December 2018 the Applicant informed the Registry that the doctor's letter had been posted on 13 December 2018, but the Registry had no record of having received anything further. In that conversation he was recorded as having confirmed he had "PTSD and Bipolar". He was informed that another letter would be emailed requiring a psychiatric assessment. On 8 February 2019 he was emailed a request for a psychiatric assessment.
On 25 September 2019 the Applicant enquired about his application. He was again informed that Dr Gilliland's letter was insufficient. He said he had sent in another doctor's report on 12 December 2018. The Registry had no record of any other doctor's report.
It was not until 12 September 2020 that his application for renewal was refused, although there appears to have been some delay in informing the Applicant of the outcome of his application, following which, he voluntarily surrendered his firearms.
On 7 October 2020 the Applicant was emailed copies of the letters of 24 October 2018 and 21 November 2018. On 16 October 2020 the Applicant provided a medical report of Dr Doris, Consultant Psychiatrist dated 8 October 2020.
On 2 November 2020 the Applicant sought an internal review. A supplementary report from Dr Doris dated 13 April 2021 was provided by the Applicant. The internal review was not finalised until 8 June 2021.
Much of the Applicant's evidence related to his concerns about the delay in the consideration of his application by the Registry, and the frustration that he experienced as a consequence. The Applicant contended that he had supplied information to the Registry, but according to Ms Walker, the only medical evidence was Dr Gilliland's medical certificate dated 3 August 2018 and Dr Doris' reports.
The Respondent was critical of the Applicant for apparent lack of co-operation with the Registry. There may have been some crossover with requests and the information supplied, and having regard to mail constraints, especially during coronavirus lockdown, I put it no higher than that there was some miscommunication between the Applicant and the Registry. As I explained to the Applicant at the hearing, the main issue to be considered by me was whether it is the public interest for him to hold a firearms licence.

The evidence in relation to the Applicant's mental health

The Applicant served in the RAAF. In about 2010 or 2011, during a training exercise he experienced a significant assault as a result of which he was seriously injured. There appears to have been some delay in his treatment. He subsequently developed Chronic Pain Syndrome. He was referred for psychological counselling as well as pain management therapy.
On 11 August 2104 the Applicant came under the care of Dr Parker, consultant psychiatrist. He had recurring sleep disturbance - sleeping only between 8.30pm till 12.30 am. He was considered to be 'probably hypomanic' and had 'an underlying Bipolar Disorder". Dr Parker thought at that time that an alternative diagnosis was anxiety secondary to stress. Much of the Applicant's problems were associated with his chronic neurological pain. The doctor was concerned to assist the Applicant to sleep and to gradually "bring his mood down". She reported that he had a gun licence but observed that, at that time, he had "no access to guns". She did not consider him to be a risk to himself or others as he denied both suicidality and irritability towards his family.
In February 2015 Dr Parker reported that the Applicant was sleeping only 4-5 hours per night on medication. In April 2015 he was still not sleeping well as his mind was racing and he was hypomanic; he was admitted to Warner's Bay Private Hospital in order to clarify the diagnosis. Different medications were trialled by the doctor, with mixed success; some resulted in significant side effects.
In July 2015 the Applicant reported to Dr Parker of having the occasional 'down' and then periods of being 'supercharged'. He was having concentration problems. The Applicant's sleep problems (only 3-4 hours per night) suggested hypomania. His anxiety disorder was said to be extremely difficult to treat because of the Bipolar.
On 9 December 2015 Dr Parker wrote of the Applicant's continuing poor sleep. In February 2016 Dr Burford wrote that the Applicant's visit was due major depression.
Dr Parker wrote in her reports in March 2016 that the Applicant had adverse reactions to medication, observing that he had been hypomanic and was experiencing some paranoia, and in May 2016 had an episode of depersonalisation or dissociation. She was reviewing him weekly and changing his anti-psychotic medication. He was reportedly more stable than in the past but also reported more moodiness.
The Applicant discussed his poor sleep with Dr Burford in May 2016 and Melatonin was prescribed, although this was discontinued as it had side effects. His visit was due to Major Depression, as it was in June 2016. By August 2016 Dr Parker considered the Applicant appeared stable but still had periods of irritability and anger. His medication was increased and he was taking sedatives at night to try and maintain his sleep.
Following his medical discharge from the RAAF in 2016, the Applicant moved to the Coffs Harbour area, although he continued under the care of Dr Parker for a period.
His visits to Dr Burford in August and September 2016 were again due to Major Depression. In September and November 2016 he was also recorded as getting headaches when stressed, and on the latter occasion, was observed to be agitated. In November 2016 the Applicant was seeking assistance from Dr Burford in relation to insomnia. In January 2017 his sleep was somewhat improved and had commenced medication for his anxiety. He continued to use medication for sleep. Major depression was his reason for visiting Dr Burford in February and March 2017 when he again sought assistance from Dr Burford in relation to insomnia.
In a letter from Dr Gilliland to Dr Parker on 5 June 2017, the doctor recorded that the Applicant had reported that he felt his Bipolar was becoming unstable due to lack of sleep. In October 2017, while his mood was stable, Dr Parker observed that his anxiety had significantly increased. When unstable he was reportedly very irritable with his family and was unable to sleep.
The Applicant subsequently came under the care of Dr Gilliland as his General Practitioner. Dr Gilliland also referred him to Annette Summers, Clinical Psychologist, who provided a report dated 6 September 2019 in which she noted the Applicant sought additional management strategies for anxiety and panic attacks.
The Applicant came under the care of Dr Doris on 21 August 2019. In his detailed report of that date the doctor noted the Applicant gave a history of having been "good" for the previous 6 months, with the support of a very helpful support network including his family, his assistant coach at the rugby league club and his best friend, Chris. He described to the doctor some obsessional traits in relation to the desire for order, structure and completion. He reported occasionally developing physiological indicators of anxiety. He reported that his sleep was poor. The doctor considered the Applicant had a good understanding of his mental health needs. Notwithstanding that he considered the Applicant to be in remission from Bipolar Disorder, the Applicant was to be reviewed monthly.
On 18 September 2019 the doctor reported to Dr Gilliland that the Applicant's main concern at that time was poor sleep, which had been particularly poor, without explanation, for the preceding 2 weeks. Different medication was suggested to try to assist his sleep.
On 17 October 2019 Dr Doris wrote to Dr Gilliland that the Applicant had been in good mental health for the last 2-3 years, although this would appear to have been the Applicant's self-report, corroborated to some extent, by his wife. The doctor found his condition to be well-managed, but noted there were ongoing sleep problems.
In December 2019 Dr Doris wrote that the Applicant had been in relatively stable mental health recently, although there was some domestic tension. In January 2020 the doctor reported there had been an increase in stress in the previous week due to significant renovations at home and the Applicant's sleep had been more disturbed because of stress.
In his report of 6 April 2020 Dr Doris reported to Dr Gilliland that the Applicant was experiencing a mild increase in anxiety and worsening sleep problems, which the doctor attributed to the Applicant's response to coronavirus restrictions. He was reportedly having trouble managing his mental health due to coronavirus restrictions and being unable to do physical activities like hunting. The doctor considered it important that the Applicant's sleep pattern be as good as possible. When Dr Doris reviewed the Applicant the following month, he reported that the Applicant was finding the virus restrictions to be increasingly difficult to manage, and the doctor found the Applicant's mood to be low. The doctor found him to be despondent and frustrated at interview.
In July 2020 the Applicant told Dr Doris that he had been in reasonable good mental health for a few weeks. He had returned to hunting which he found therapeutic. He had run out of hypnotic medication and, as a result, his sleep was poor. In August 2020 his shoulder pain was disrupting his sleep. He was found to be neither depressed nor manic. His medication was increased to assist with reducing anxiety and perhaps to help with sleep. The doctor was concerned that his sleep disturbance not destabilise his mood.
In his report to Dr Gilliland of 6 October 2020 Dr Doris reported that the Applicant's metal health had improved in recent weeks, although he continued to suffer an increased level of anxiety at times and had chronic sleep issues. Although the Applicant expressed a little frustration in relation to issues surrounding his firearms licence application, the doctor considered there was no pathological abnormality in his mood. He considered the Applicant to have good insight into his mental health needs.
In a further report, dated 8 October 2020, prepared for the purposes of the Applicant's firearms application, Dr Doris referred to the Applicant seeking the assistance of his wife or close friend 'to ensure safety was maintained'. Dr Doris confirmed the principal diagnosis of Bipolar Affective Disorder, which, he observed, was consistent with the diagnosis of Dr Parker. He considered the Applicant to be in remission, although a relapse was possible throughout the Applicant's life. The Applicant's medication manages his moods and in the period the doctor had been treating him, his mental health had been stable. He continued to have sleep difficulties. Dr Doris wrote that while the nature of Bipolar Affective Disorder is such that relapse remains possible thought life, the Applicant's understanding of his illness reduced the likelihood of relapse.
Dr Doris considered the Applicant's mental health to considerably benefit from keeping his general health as good as possible with involvement in physical activities including coaching young people and being able to go hunting with family and friends. The Applicant told him he found hunting relaxing and a useful way of diffusing stress. Dr Doris recorded that from October 2019 the Applicant and his wife had discussed safety with respect to firearms and that the Applicant's wife had confirmed a "very good system involving her and the Applicant's best friend to ensure that no risks arose". They had discussed the importance of monitoring for any early signs of relapse and that immediately seek the assistance of his wife or a close friend to ensure that safety was maintained. In discussion about firearms, he found the Applicant to be responsible and appropriate. He considered it reasonable for the Applicant to continue to have a licence to possess and use a firearm.
In November 2020 the Applicant was reportedly more tense during the day which he attributed to chronic pain as well as worries about his gun licence . His medication was adjusted again.
In December 2020 the doctor found the Applicant's mood to have been lower which the doctor attributed to frustration. His sleep was reasonably good. His medication was again increased.
In March 2021 the doctor noted the Applicant's poor sleep again and that he struggled during the day with restlessness and overactivity. In April 2021 he considered the Applicant to be in remission and there was no change in medication. Dr Doris' report of 13 April 2021 noted that the nature of the Applicant's condition is that it relapses and remits throughout the life of an affected person and the length of time between acute episodes in very variable. He said it was impossible to predict the future. He conceded that if there was relapse then it is possible that there could be an increase in safety risk associated with firearms. In that context he referred to the Applicant's safety plan. In summary the doctor considered the Applicant had the ability to form a rational judgment.
On 25 June 2021 Dr Doris reported to Dr Gilliland that the Applicant had been feeling more anxious recently and experienced stress-related headaches and some somatic fears. However, there was no evidence of recurrence of his mood disorder.
As recently as 19 July 2021 Dr Doris reported to Dr Gilliland that the Applicant's sleep remained poor, and that recent medication had proved ineffective and hence and been discontinued. Dr Doris stressed the importance of the Applicant arranging appropriate health services when he moves to Queensland. In the meantime, he would continue to review the Applicant.
Although Dr Doris wrote that it was highly likely that the Applicant had deviated from a prescribed course of action or medication but, in the time he has treated the Applicant, he believed him to have been compliant. The Applicant denied that he may forget medications; his medication is carefully monitored and he and wife both set alarms as reminders.

Does the Applicant also suffer from PTSD?

The Respondent was critical of Dr Doris' report for not addressing the Applicant's PTSD, and was also critical of the Applicant for not providing a medical report addressing that condition.
PTSD was referred to by the Applicant's General Practitioner on 11 August 2017 when referring the Applicant to Ms Summers for psychological counselling, and in the patient summary and consultation entries for 2 and 13 November 2017.
The Applicant had referred to PTSD in a telephone call to the Registry in December 2018. He said in his evidence though that the primary diagnosis of his condition is Bipolar, and this is consistent with Dr Doris' reports. He said that PTSD was "on and off the table" over the years. He said he never hid the fact that it had been "diagnosed" with the condition.
The Respondent submitted that PTSD remained a diagnosis in 2019 and 2020 - on 23 January 2019 another doctor at Dr Gilliland's practice referred to PTSD and on 25 June 2020 Dr Gilliland referred to PTSD in providing a referral to Dr Doris. However, at no time did Dr Doris diagnose PTSD, nor did his predecessor, Dr Parker. Both these medical practitioners are consultant psychiatrists, and their diagnoses are preferred to those of General Practitioners, and the Applicant's self-diagnosis.
The Applicant has remained unfit for any work, including presently until June 2022. This, the Respondent submitted, reflects the severity of his condition. The Applicant said that his mental health condition is not the only reason he cannot work - his physical limitation is the main reason. The current Workcover Certificate of Capacity lists complex regional (sic) syndrome, Bipolar II Disorder, Panic Disorder, left knee lateral collateral and ACL tear. The medical evidence supports a finding that his inability to function to a degree that permits him to work is not solely related to his mental health.

The safety plan

The Respondent was critical that no (documented) safety plan was produced by Dr Doris in answer to the summons, or at all. The Applicant said Dr Doris thought the plan was "intricate". The Applicant's evidence was that he had never been asked about a safety plan, nor was Dr Doris asked about a safety plan. I agree that Dr Doris was not specifically asked about such a plan; the doctor himself raised that there was a 'safety plan' in place, as he had mentioned in his earlier report.
The Applicant said that he has never presented a danger to anyone, including himself, even at his lowest point because of his pain. The Applicant said he would never put the public in danger, and noted that he has 3 young children.
The Applicant wrote in an email dated 2 November 2020 that he has "plans and actions in place if anyone including [his] doctor, wife or [him]self felt that he was not right to hold firearms". The Applicant said it was "practically impossible for things to go wrong", but did not articulate of what the plan consisted. The Respondent submitted, and I agree that details are needed about the safety plan if the Applicant's mental health deteriorates, in order to assess public safety.
The Applicant said his wife "knows what to look out for". He said would never give her the keys [to the gun safe], and she knows to contact his best friend who is licensed. The Applicant's wife, who featured in his plan, does not hold a firearms licence, but is father-in-law, who lives with them, does. For reasons which are unclear, he did not propose that his father-in-law, who would be on hand, take charge of his guns in the event his condition deteriorated. The Applicant said his wife knows to contact the Applicant's friend, who is second in charge at the range. No statement was provided by the Applicant detailing the plan, nor were statements provided by his wife or his friend.
Further, the Respondent submitted, and I agree, that the Applicant's 'safety plan' relies on self-identification of a deterioration in his condition. His ability to do this may be affected by other conditions, for example, his ongoing poor sleep.

Conclusion as to the Applicant's mental health

In summary, the Applicant has not, over the last 12-18 months, displayed the dramatic symptoms associated with Bipolar Disorder; he has been adequately managed, albeit while under constant review. However, at a number of consultations with Dr Doris over that period the Applicant reported his low mood was low and that he was despondent. There were also periods of increased anxiety, as recently as June this year and, most recently (July 2021), stress-related headaches and some somatic fears. At times he struggled with restlessness and overactivity. His medication was changed at least twice. There was ongoing chronic significant worsening of his sleep, and Dr Doris was concerned his sleep disturbance could destabilise his mood. Medication to assist his sleep had been ineffective and discontinued, and it is clear his sleep problem remains a chronic issue.
The Applicant claimed that he had been trained in the RAAF "not to sleep", but I reject that contention. It may have explained his early sleep problems, which date from at least 2014. There is no medical evidence that his ongoing sleep difficulties relate to his training.

Failure to disclose mental health treatment

The Applicant admitted that he had failed to disclose on each of his licence applications (2014, 2016 and 2018) that he had been treated for a mental health disorder or illness in 12 months prior to each application. Relevantly, the licence applications asked: Have you in NSW or elsewhere: (d) have you ever attempted suicide or self-harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?
The Applicant answered 'No' to the above question in each licence application.
The application forms also included a declaration made by the Applicant: I understand that it is a serious offence under the Firearms Act 1996 to make a statement or provide information that I know is false or misleading and I certify that all the information contained in this declaration is true and correct in every detail.
Section 70 of the Act provides: 70. A person must not, in or in connection with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular. Maximum penalty: imprisonment for 14 years if the application relates to a pistol or prohibited firearm, or imprisonment for 5 years in any other case.
In the 12 months prior to his application completed on 4 March 2014 application the Applicant was receiving care from RAAF doctors, and came under the care of Dr Parker, consultant psychiatrist, who saw him first on 11 August 2104. In his evidence the Applicant said that, at that time, there was no clear diagnosis of a mental health condition, or whether it was part of his pain syndrome. In cross-examination, however, he conceded that he had been treated in relation to his mental health in the 12 months before the date of application.
In the 12 months prior to his 9 June 2016 application, the Applicant was seeing his consultant psychiatrist, Dr Parker. In July 2015 the Applicant reported mood swings, concentration problems sleep problems that were suggestive of hypomania. The doctor reported having difficulty treating the Applicant's anxiety disorder because of his Bipolar Disorder. Dr Parker reported on his treatment in December 2015, January 2016, March 2016, and April 2016. She was having difficulty managing the Applicant's medication and he had adverse reactions to medication, observing that he had been hypomanic and was experiencing some paranoia, and in May 2016 had an episode of depersonalisation or dissociation. She was reviewing him weekly and changing his anti-psychotic medication.
The Applicant discussed his poor sleep with Dr Burford in May 2016 and his medication was adjusted.
In the 12 months prior to his application dated 23 April 2018, Dr Gilliland's records identify treatment for 'Complex Regional Pain Syndrome', 'Post Traumatic Stress Disorder' and 'Bipolar', with treatment in the preceding 12-month period on 25 May 2017, 26 July 2017, 11 August 2018, 2 November 2017, 13 November 2017 through to 8 February 2018. The Applicant was also receiving psychological services from Ms Summers in September 2017, which were to be ongoing. The Applicant continued to be treated by Dr Parker, with whom he consulted about monthly.
It is clear from the medical evidence that the Applicant had significant mental health issues in the 12 months preceding each of his licence applications. Moreover, the evidence, specifically in relation to the question asked, was that the Applicant had been treated for a mental disorder in the 12 months before the date of each application.
In his evidence before me the Applicant conceded that he had "made a mistake" by not declaring his mental health treatment. He offered by way of explanation only that he was "being treated for many things". It is clear however, that he was, in addition to his physical ailments, being treated for mental health issues.
He pointed out that he had told the Registry of his mental health issues, when he knew his condition had been "sorted". In fact, the Applicant did not inform the Registry until he was challenged following seeking a veteran's discount for his application. It was this that precipitated enquiries by the Registry about his mental health. The Applicant said he knew that enquiries would be made with DVA about the basis on which he had been granted a pension and his mental health condition would then become apparent, but that is not the same as informing the Registry of his mental health condition.
If the Applicant had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. Furthermore, on that basis alone, it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence: see Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240. It is difficult to conclude that the Applicant did not knowingly intend to provide false information. The medical evidence shows a pattern of his requiring detailed psychiatric management. There can be no contention that it was an error, because his need for psychiatric intervention, sometimes as frequently as weekly, could not possibly have merely slipped his mind.
As I said recently in Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18] one of the objectives of the Act is the functioning of a proper system of firearms licensing, which necessarily depends on applicants providing true and correct information in a comprehensible manner. In Kogias v Commissioner of Police [2020] NSWCATAD 297 the applicant, who had failed to disclose that he had previously had his licence revoked, said that his incorrect statements in the application were errors and were not intentional. Nonetheless the Tribunal in that matter took the view that the applicant knew the form he had completed was incorrect. Similarly, in Hunt v Commissioner of Police [2021] NCATAD 58 the Tribunal found the applicant was aware that he had incorrectly completed the form in relation to a suicide attempt within the preceding 10 years.
In Hook v Commissioner of Police [2020] NSWCATAD 250 the applicant had responded "no" to a question whether in the past 10 years he had been the subject of an AVO and had explained that he had thought the question was asking about current AVOs and that he must have misread the question. Professor Walker SM considered, at [96], that the applicant's explanations were less than impressive and at best suggested a degree of carelessness in completing an official document and that the meaning of the question was clear enough if he had taken the trouble to read it properly. The Senior Member found the applicant in that matter to be, essentially, unsophisticated and probably had not been involved much legal form-filling. His incorrect answers resulted from a combination of carelessness and inexperience and were not knowingly false or misleading within the meaning of s 70. The Senior Member also contrasted the matter to Constantin v Commissioner of Police, New South Wales Police Force, [2012] NSWADT 172 (Constantin), where the applicant had knowingly concealed a Queensland conviction for armed robbery.
In this matter, the Applicant failed, not once, but three times, to answer correctly the clearly worded and unambiguous question of whether he had been treated for a mental disorder in the 12 months before the date of each application.

Has the Applicant been candid about his mental health?

The Respondent submitted that the Tribunal should have concerns about the Applicant's candour, not just arising from the "dishonest" answers in his licence applications.
The Respondent also submitted that, despite requests for better information, the Applicant had "refused". I do not consider that the evidence supports such a finding as the Applicant disputed that he had declined to provide information.
The Respondent also submitted that, in addition to the false statements in his licence applications, the Applicant had also made other statements that were not true. In particular, it referred to the Applicant's email to the Registry dated 1 March 2021 that "/ have always provided a doctors (sic) letter on renewal for my own peace of mind". Putting aside the Applicant's claim that he had provided medical evidence in support of his current claim, this clearly is incorrect, as the Applicant had supplied no medical evidence whatever in relation to his 2014 and 2016 applications, despite receiving in depth psychiatric treatment, including a period of in-patient care in 2015.
The Respondent also relied on the Applicant's email to the Registry dated 31 March 2021 in which he said he was "always truthful to firearms licence and have always received supporting evidence and many reports while holding my licence and have always provided these reports every time I renewed my licence including from my then treating doctor and also Dr Parker my treating mental health professional...". The Applicant's mental health condition did not come to attention until 2018, and he had, until requested, provided no medical reports. In particular, at no time did the Applicant supply any report from Dr Parker, although he claimed that he had sent in all his (unspecified) medical reports. Putting that aside, the Respondent also referred to the Applicant's email to the Registry dated 9 June 2021 following notification of the internal review, in which the Applicant said,"/ will be providing all my previous reports from Dr Parker supporting my licence...". None were received.
The Applicant gave lengthy evidence about his concerns at the management of his renewal application. His position was that he had sent in all relevant medical reports. The Respondent's solicitor also wrote to the Applicant on 10 August 2021 inviting him to advise what medical evidence he had supplied to the Registry since 2014, but still no response was received.
The Respondent also relied on observations of Dr Parker, and referred to her report of 4 September 2014 in which she noted that the Applicant "does change his story depending on what he thinks you want to hear". The Respondent also relied on Dr Parker's observation in her discharge summary of 2 May 2015 after the Applicant was admitted to Warner's Bay Private Hospital: By the end of his admission, Mr Saxby was relatively settled and his wife called in give a collateral history and check that his had in fact improved, as Mark has been known to try and give favourable history depending on what he feels his treatment providers want to hear...
Dr Parker wrote in her report dated 9 December 2015 of the Applicant "telling professionals what to do" and "standing over" them. The Applicant said that he disliked taking the prescribed opiates and it was for that reason he may have been perceived as "standing over" doctors. The Applicant noted that this was some time ago.
I observe that the concerns were raised by Dr Parker now 6 and 7 years ago. There was no evidence of similar concerns since that time, nor were any concerns of this nature raised by Dr Doris in his reports over the last 2 years, despite seeing the Applicant almost monthly. I therefore give these observations little weight.
I find that the Applicant has been less than candid with the Registry about his mental health issues.

What is the Applicant's genuine reason for a firearms licence?

The Applicant's firearms licence applications have been on the basis of the genuine reason of 'recreational hunting/vermin control'.
In August and October 2019 the Applicant told Dr Doris that he hunts twice a week. The Applicant wrote in an email dated 2 November 2020 that he uses hunting and target shooting as a coping mechanism for his "DVA" recovery. Mr Rosewood, in his undated reference referred to the Applicant being a volunteer as a Range Officer for 2 years from January 2019, until his licence was revoked. Contrary to his assertion in November 2020, the Applicant said he does not engage in target shooting at the Range; he attends to sight firearms so that there can be clean and ethical kills taken in hunting. He also oversees competitions, but, he said, does not himself shoot at those events. This evidence was unchallenged.
I accept that the Applicant's genuine reason for a firearms licence continues to be 'recreational hunting/vermin control'.

What is the Applicant's interest in holding a firearms licence?

The Applicant wrote in an email dated 1 March 2021 that he has been a responsible firearms owner for "many" years, although I observe he first obtained his licence in 2014 - 7 years ago.
Dr Doris wrote in May 2020 that the Applicant normally manages his frustration and other emotions by going hunting on his own, which, by that tiem, had been precluded because his licence renewal had been refused. A planned hunting trip to celebrate his brother's birthday could not occur because of his licence refusal. In October 2020 the Applicant told Dr Doris he found hunting relaxing and a useful way of diffusing stress. I accept that the Applicant has an interest in firearms and has held a licence since 2014. I accept that the Applicant's ability to go hunting may provide some health benefits, and that has been frustrated at being unable to do so. He would also like to shoot with his sons who have junior firearms licences.
Private interests are not the only matters to be taken into account; 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. Accordingly, the Applicant's genuine reason for holding a firearms licence, cannot not 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".

Public interest

Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was also a case on the "fit and proper person" test, the principle in Ward has been held to also apply to the public interest test: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum: see also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 (AML) at [7].
The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. When considering future risk, the Tribunal must consider the past conduct of the Applicant as a significant guide: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]. I consider that the evidence as to the Applicant's mental health over the last year or so, discussed above, to be particularly relevant to assessing future risk.

Conclusion

It was not disputed that the Applicant has no criminal record and has an unblemished firearms history. He also undertakes community service in the form of coaching young people in football.
I have found that the Applicant not only failed to disclose his psychiatric condition to the Registry in each of his 3 licence application forms, but that he also claimed to have otherwise done so, when he clearly had not. He has, in my view, until relatively recently, attempted to conceal his condition.
In AML at [23], the Tribunal held that while both effective treatment and a lengthy period of stability are relevant to assess the public interest, they are not mandatory considerations: see also Allan v Commissioner of Police [2008] NSWADT 230 at [33] - [34]. While the evidence shows some stabilisation of his condition, it is subject to regular reviews. There remains a risk that he may relapse - the evidence of Dr Doris in his report of 13 April 2021 is that the nature of the condition is such that it relapses and remits throughout the life of an affected person and the length of time between acute episodes in very variable. This cannot be discounted as an insignificant risk of relapse: see Moroney v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 138. While the Tribunal can never be completely satisfied that there is no risk in an applicant having a firearms licence, in the circumstances, I am unable to find with confidence on all the evidence that the renewal of the Applicant's licence would entail virtually no risk to public safety, including his own safety. I have also taken into account the Applicant's false statements to the Registry and his lack of candour about his condition. Accordingly, I find on all the evidence that it is not presently in the public interest for the Applicant to hold a firearms licence.

DECISION 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: 22 September 2021

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