Stephinson v Commissioner of Police, New South Wales Police Force

Jurisdiction

1. The Commissioner has refused Mr Stephinson's Firearms Licence application on the basis of s 11 (7) of the Firearms Act 1996 (NSW) which provides: 11 General restrictions on issue of licences (cf 1989 Act s 25, APMC 4, 5, 6) (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. (2).. (3).. (4).. (5).. (6).. (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.
2. Section 11 (4) of the Firearms Act was also relied upon in that the reviewer had concerns about Mr Stephinson's ability to maintain safe continuous control of firearms. 11 General restrictions on issue of licences (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. (2) … (2A) … (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, and (b) … (c) … (d) … (3A) ... (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) … (Emphasis added)
3. Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The third matter listed at s 75 concerns the revocation of a licence. Relevantly the section provides: Part 8 Applications to Civil and Administrative Tribunal 75 Administrative reviews by Civil and Administrative Tribunal of certain decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - (a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person, (b) a condition imposed by the Commissioner on a licence or permit issued to the person, (c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order), (d).. (e)… (f)… (g)… (Emphasis added)
4. The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
5. The Tribunal has preliminary jurisdiction under the Firearms Act as noted at [10] above.
6. As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal's function on review under s 63 of the ADR Act 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 in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Administrative Review by the Tribunal

1. The parties agree that Mr Stephinson filed his application for Administrative Review on 9 June 2022, the decision having been made on 22 February 2022. On first examination this date would appear to be well outside the 28 day period provided to lodge an application for Administrative Review. The application to the Tribunal also states that the decision was notified on 14 April 2022 (outside of the 28 day period) and refers to the Commissioner using an out of date email address. Even accepting that Mr Stephinson became aware of the decision on 14 April 2022 the application is still well out of time when 14 April 2022 is the date used to calculate or reckon time.
2. When the matter came before me for initial hearing in September 2022 it was clear that the Tribunal did not have jurisdiction to proceed with the matter unless a defect in the process was corrected. This was not previously identified by the parties or it seems the Tribunal. Because the matter had progressed to hearing and proceeded on the basis that there was jurisdiction, the Commissioner did not oppose and extension of time to allow the application for administrative review to be received.
3. As the parties had prepared the matter for hearing on the assumption that there was jurisdiction and noting that the Commissioner did not oppose the extension of time in such circumstances, it appeared that it was in the interests of justice to extend time on the Tribunal's own motion.
4. The Tribunal made an order under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) extending time for Mr Stephinson to lodge the application until 9 June 2022. Therefore the Tribunal has jurisdiction to hear the matter having regard to s 75 of the Firearms Act. 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.

What issues do these proceedings raise for determination?

1. On my assessment the issues are:

• Is it in the public interest for the applicant to hold a licence?
• Is Mr Stephinson's mental health / psychological well-being sufficient to establish that he can be entrusted with firearms possession and use including that he will maintain continuous lawful control over firearms at all times?

Applicant's written evidence

• Exhibit 'A-1'. Joint signed Statement of L Stephinson and G Stephinson filed 25 July 2022.
• Exhibit 'A-2': Signed Statement of P Gabauer dated 13 January 2021 filed 25 July 2022.
• Exhibit 'A-3' Signed Statement of F Stephinson and P Stephinson dated 20 July 2022 and filed 25 July 2022.
• Exhibit 'A-4' Signed Statement of G and L Stephinson dated 20 July 2022 and filed 25 July 2022.

Respondent's written evidence

• Exhibit 'R-1' Documents filed under s 58 ADR Act (60 pages) filed 4 August 2022.
• Exhibit 'R-2' Supplementary Bundle of evidence 12 pages filed 1 September 2022.
• Exhibit 'R-3' Respondents additional Evidence (243 pages) filed 19 September 2023.
• Exhibit 'R-4' additional material (10 pages) filed 14 October 2022.
• The Commissioner also sought to tender late evidence (a series of photographs depicting locations claimed as safe storage location for firearms), and a compendium of material complied from material produced under summons concerning the vehicle ferry matters including records of telephone conversation file notes by witnesses and communications to and from Transport for NSW. This material was accepted on a limited tender having given Mr Stephinson's legal representatives time to consider the material, noting that it was late, but also noting that submissions could be made as to weight.

1. The Commissioner was legally represented and provided detailed written submissions and made oral submissions at hearing. Mr Stephinson was legally represented from the second day of the hearing and was subject to cross-examination at hearing. A Transport for NSW witness also gave evidence at hearing and was subject to cross examination. No other witness was called or required for cross examination at hearing.

Mr Stephinson's evidence at hearing

1. On day one prior to engaging legal representation Mr Stephinson began his oral evidence. The Tribunal explained the practice and procedure of the Tribunal generally and the administrative review hearing (s 38 (5) NCAT Act).
2. In evidence in chief Mr Stephinson said that Exhibit 'A-1' contains his evidence overview of the matters as well as that of his wife. He adopted 'A-1' as true and correct.
3. In cross examination he was asked about the April 2013 'Anzac Day' incident. He said that his group had started drinking at midday and were 'drinking solidly'. Mr Stephinson agreed that he was intoxicated. He said he was drinking full strength beer and that the last place of drinking prior to coming to North Sydney was the Pyrmont Bridge Hotel. He said he caught a taxi to the Old Commodore Hotel. He was across the road from the Hotel sitting on a seat on Blues Point Road when Police approached and he was told to move on. Mr Stephinson said that at that time he informed Police that he was within his rights to stay there and was 'waiting for transport'. He said that he congratulated the Hotel security guard on his assessment of him as intoxicated.
4. Mr Stephinson agreed that he was calling the guard and Police 'every name under the sun' and that he made a reference to 'five dead mates in Afghanistan'. He said that this was a call out to Police as to how many mates they had lost doing their duty. Mr Stephinson admitted these things but denied saying 'give me your f-ing gun now so that I can put it in my mouth and pull the trigger'.
5. Mr Stephinson said that the only reference to a gun was the younger male officer tapping his gun in its holster on his hip after he had been handcuffed. He said that as the officer did this he threatened to Taser Mr Stephinson. Reference was made to saying 'give me the Taser…. your gutless I'll do it myself'.
6. Mr Stephinson agreed that his wife was called and she took him to Royal North Shore Hospital (RNS) from the scene as Police had broken his right ACL while he was in handcuffs. Mr Stephinson confirmed that when the 'Anzac Day' incident occurred in 2013 he was still in the Army. He said that he left the ADF (Reserves) in 2015/2016. He said that he was first diagnosed with Post Traumatic Stress Disorder (PTSD) by Dr Altman. The background to the PTSD diagnosis arose from his ADF employment. He said that he had done a 6 month tour of Afghanistan in 2007. He said that he saw Dr Altman after being referred by Dr Henson. He had seen Dr Henson in order to address matters relating to seeking the reinstatement of his firearms licence in 2013/2014 following it's suspension arising from the 'Anzac Day' incident.
7. Mr Stephinson was asked about the background and context of the issue with the vehicle ferry noise at Berowra Waters. Mr Stephinson said that he had lived there for about 9 or 10 years and the issue arose from renovations or modification or repairs to the approach ramps for the ferry where the vehicles drive on and off the ferry. He said that the changes created undulations in the ramps that caused large vibrations in their home.
8. Mr Stephinson was asked about an incident with the Ferry Masters around mid August 2020 concerning threats. Mr Stephinson said that the 'threat' was a threat to put up signs complaining and alerting the public of the problem. He said that his family was distressed by the noise and vibrations and the whole issue had arisen due to poor workmanship in the modification / repair work. Mr Stephinson said that the Ferry Master escalated the situation. There were probably 20 Ferry Masters who worked in rotating shifts of 2 at a time. He admitted that he may have swore in his exchanges with the Ferry Masters and referred to them as incompetent and inept but denied making any threats.
9. Mr Stephinson was asked about a COPS Event at page 7 of the s-58 documents (Exhibit 'R-1'), where the driver of a white tipper has alleged that he is a friend of the applicant and tells the Ferry Master in October 2020 that they are going to cut the ferry cables to stop the noise. Mr Stephinson identified the person in his evidence but denied discussing plans with the person to cut any cables or similarly cause damage to the Ferry. He said that the intention was to convey that he forcefully conveyed that he would stage a peaceful protest about the matter at the site and 'name and shame' those responsible. Mr Stephinson again denied making any threats.
10. Concerning comments made to the female RMS officer over the telephone Mr Stephinson said that he later apologised to her for his comments. And she apparently understood that his behaviour was reactive and he characterised the apology as recognising that none of the problems were the fault of the RMS officer. There was a difference of view around Police telephone messages for Mr Stephinson over these matters with their version being that he did not respond to the messages.
11. There were a number of questions about Mr Stephinson's movements in NSW and Australia and whether he had complied with the relevant requirements around notifying the Firearms Registry of any changes. When asked about Police trying to locate him and being advised by a third party that he had moved to Coffs Harbour Mr Stephinson denied that he had moved to Coffs Harbour. He said he was travelling at the relevant time. His travels included Lightening Ridge Darwin and back to Coffs Harbour. The applicant said that an email to the Firearms Registry was from a former employer. He said that he had told the Registry himself that the address given was just a safe storage address not a residential change of address.
12. Mr Stephinson said that he left Berowra Waters in October 2020 with his firearms and firearms safe. With the six rifles he travelled to Coffs Harbour and contacted Police on 20 November 2020. He was then travelling to Cape York with his six rifles for a family holiday. His evidence was that in November 2020 he contacted Police about a safe storage change of location in this context. In April 2021 Mr Stephinson said that he had a motor vehicle accident in his Toyota Hilux and was issued with a Traffic Infringement Notice (TIN). He challenged the TIN at Court and was found not guilty after a defended hearing in Coffs Harbour Local Court.
13. In respect of his PTSD Mr Stephinson was not experiencing symptoms when he returned to Afghanistan. He confirmed that he had seen Dr Rees for 10 years. The Department of Veteran's Affairs (DVA) accepted his disability claim and he left the defence force.
14. On Day two of the hearing Mr Stephinson was legally represented and continued with his cross examination. He was asked about the Commissioner's first suite of additional material ('R-4') where his details and updates with the Firearms Registry were recorded. The Residential address had been updated on 8 October 2020 due to Mr Stephenson's reapplication / renewal application for his firearms licence. Mr Stephinson said that his residential address remained the same being the one in Berowra Waters. A previous address in Artarmon was from 2015. On 14 December 2020 there is a record of a call from Mr Stephinson to the Firearms Registry in response to police messages. He said that Police had attended the residential and safe storage address on three occasions and had missed him. It was put to Mr Stephinson that he had not informed Police that he was changing the safe storage location. Mr Stephinson denied this and said that he had advised them about Berowra Waters. When it was suggested that Police had no record of this Mr Stephinson put it down to 'admin issues' whereby he had made a submission through an online portal and possibly an email. When asked if he had a copy of the email Mr Stephenson answered that he did not. When it was suggested that he did not inform the Registry Mr Stephinson answer that he had so informed the Registry.
15. The Commissioner's representative suggested to Mr Stephinson that the first time he had advised of the new safe storage address was at 9:29am on 30 November 2020. Mr Stephinson denied this and said that the phone call made by him was 'reactive' or in response to police phone calls and messages.
16. It was suggested to Mr Stephinson that the s 58 documents showed that the safe storage address and the residential address were not the same (pg 25 of Exhibit 'R-1'). Mr Stephinson maintained in his sworn evidence at hearing that they were the same. There was some discussion about the requested updates set out in 'R-4'. Mr Stephinson said that he would have provided the requested details later on the date day of the record on pg 5 of 'R-4' or the next day.
17. Mr Stephinson was taken to the Notice of Refusal. Reference was made to the lack of any reference to a Taser in either the Notice or the Internal Review statement of reasons. Mr Stephinson said that the officer in question was not touching or highlighting his firearm but rather tapping his Taser in it's holster when threatening him during the 'Anzac Day' incident on Blues Point Road North Sydney. He was taunting him while handcuffed. This evidence was consistent with the evidence that he gave on day one and also consistent with the evidence provided verbally to the officer at Coffs Harbour when he was served with the Suspension Notice.
18. Mr Stephinson was taken to his traffic record. He was questioned about a matter from 14 June 2021 concerning disability provisions. Mr Stephinson advised that due to his physical injuries he has a disability permit and was one or two days out of having it renewed.
19. Concerning his traffic history generally which included 25 offences in 23 years (one overturned at Court) Mr Stephinson gave evidence that he travelled approximately 20,000 kilometres per annum for most of those years, in excess of the distance travelled by the average motorist. He also noted in his evidence that four of the speeding offences were for exceeding the limit by less that 10 kph and nine were for the prior minimum range of exceed the limit by less that 15 kph.
20. Mr Stephinson conceded that his traffic record was not good but also noted that the significant offences were earlier in his driving career. He also noted that many of the earlier speeding offences related to when he was recalled urgently to duty by the Government when employed in the ADF. Mr Stephinson gave evidence that at the relevant times he was performing counter terrorism duties.
21. Mr Stephinson was asked about his medical records which had been obtained by summons by the Commissioner. He had been asked on day one about the form for reapplying for a licence in 2015 and 2020. The evidence showed that Mr Stephinson had ticked 'No' to the question asking whether he had ever attempted suicide or self harm or in the past (previous) 12 months been referred or treated for alcoholism, drug dependence or a mental or nervous disorder or illness. On Day one Mr Stephinson had agreed with the Commissioner's representative that PTSD was an illness. However he believes that he answered the questions on the form truthfully. Mr Stephinson explained this by stating that at the time that he submitted the relevant forms in 2015 and 2020 he was not undergoing treatment. He said that Dr Altman was involved in preparing the workers compensation forms for his claim. In addition he stated the form was worded 'are you being treated' and maintained that he did not believe that he was under active treatment. But he said that he acknowledges any error in his answer.
22. Mr Stephinson was asked further questions in cross examination about his medical matters. Reference was made to Dr Henson's report which appears at pages 39-41 of the s 58 documents. This report is dated 10 May 2013 and was prepared in order to have the licence reinstated following the 'Anzac Day' incident suspension. He said that the information provided in the report was as a result of the questions that were put to him. It was put to Mr Stephinson that he did not tell the expert the entire picture about his condition and history, which he denied.
23. Mr Stephinson said that he saw Dr Rees (another clinician) for the first time on 20 March 2013 as evidenced by the documents at pages 92-98 of Exhibit 'R-3'. The evidence indicated that he saw Dr Rees for PTSD, anxiety, depression, tinea and some back pain. Mr Stephinson refuted the suggestion that he was 'Dr shopping' in order to get an outcome that he desired. Mr Stephinson denied that the reason that there is no reference in Dr Henson's report to Dr Rees earlier assessment and treatment was because he had not disclosed those matters to Dr Henson.
24. The Commissioner's representative put it to Mr Stephinson that he was being treated and was aware at the time that he was being treated for a mental health or psychological matter. Reference was made to Dr Altman's report of 8 June 2020 whereby the following is reported: From November last year until February this year he attended the Veterans Treatment Centre at Concord for approximately four months where he received treatment for his physical conditions and for his psychiatric condition.
25. Mr Stephinson maintained that he did not receive psychological treatment in this context notwithstanding what was written in the report. The report details amongst other things his history of diagnosis arising from his time in Afghanistan as well as ongoing medication (aurorix 600mg daily). Reference was also made to the Department of Veterans Affairs forms completed by Dr Altman where at page 86 of the s-58 documents a diagnosis of PTSD Major Depression (and other associated diagnosis) are listed as Mr Stephinson's listed 'disabilities' at the time of the assessment.
26. Mr Stephinson did not see these matters as involving treatment or related matters. He said that he saw the matters as being administrative in nature such as for example the prescribing of medication. His recollection was that the 6 June 2020 consultation was a telephone consultation and therefore it could not have involved treatment. His evidence was that he only saw Dr Altman sporadically once or twice a year and then not for a long period.
27. Mr Stephinson was taken to an email that he sent on 30 December 2020 to the Firearms Registry concerning his current suspension / refusal of a licence. In the email he talks about the seizure of his firearms being due to false reports about his mental health situation. He offers in the email (pages 108 and 109 of 'R-3') to submit to a full psychological assessment. The Commissioner suggested that the further report of Dr Altman dated 18 February 2021 was as a result of the matters raised in the 30 December 2020 email. It was put to Mr Stephinson in respect of the more recent Altman report that he tells people what he wishes to disclose and only provides information in a manner that he retains control over.
28. Mr Stephinson was taken to page 114 of 'R-3' which is an email between him and Dr Altman dated 3 August 2020 whereby he is discussing his workers compensation issues with the Psychiatrist. In the email Mr Stephinson directs how the information is to be described and conveyed to the insurers representative. The email states the following, beginning with a reference to a previous life insurance policy taken out in 2011: ..At the time I was unaware of delayed onset PTSD or its symptoms. It wasn't until 2013 when I was referred to you that I had any diagnosis. The Army discharged me in 2009 with the all clear. This needs to be clear to MLC that the army discharged me with clear health in 2009. I took the policy out in 2011 with the view that I had great health. Symptoms that affected me began to show in 2013 which I began to address with you. In 2019 I was then diagnosed with severe PTSD. I have been advised not to send MLC the report you wrote for my DVA claim due to it's specifics around Afghanistan etc. which may not be favourable to the MLC claim. MLC will contact you by phone or report and my insurance broker advised that I need to be specific to be relevant to my claim for Total and Permanent Disability based on PTSD only and not to refer to details of Army Reserves etc. …… Flashback information is great, however only refer to flashbacks / symptoms from 2013 onwards and any lifestyle use of marijuana and or alcohol from 2013 onwards.
29. Mr Stephinson confirmed that he was in the Army Reserve from 2009-2016. He characterised this email in the context of only seeking to ensure that the third party received the information that they were seeking and nothing more.
30. A report from Dr Kumar at page 119 of 'R-3' was noted by the Commissioner as not referring to shooting as a hobby of Mr Stephinson. However I note that the report at page 114 makes a reference to Mr Stephinson owning guns. Mr Stephinson said that in respect of the 2013 report to regain his firearms licence, that he told Dr Altman everything.
31. In respect of a 2019 report by Dr Altman at pages 145-147 of 'R-3' the Psychiatrist makes reference to: 'the above features are indicative of a severe chronic Post Traumatic Stress Disorder'. The features reported to Dr Altman being: more of a loner, feeing detached from others, difficulty showing affection towards loved ones, suffering from sleep disturbance, poor concentration, irritability, and being hyper-vigilant. These matters were reported on 9 November 2019. At page 233 of 'R-3' is a reference to the MLC claim form that was completed with Dr Rees on 10 September 2020 whereby Mr Stephinson is deemed unfit for work predominantly due to PTSD. At item 11 of the form Dr Rees notes that: Needs PTSD managed well before he will be fit to work.
32. It was suggested to Mr Stephinson that there was an inconsistency between what he signed off on in the MLC form (completed by Dr Rees on 9 November 2019 but declared and submitted on 28 July 2020) declaring at Item 'B' that everything was true and then a few weeks later signs the firearms application form stating matters in effect to the contrary. However the Tribunal during this somewhat tense period of cross examination noted that page 236 of 'R-3' appears to have been copied into the November 2019 form by the holder of the records which were handed over on the summons. The proper or other placement of that declaration concerns the form prepared by Dr Altman at pages 167-169. It appears that Mr Stephinson's declaration of 28 July 2020 is a MLC claim declaration which is reproduced multiple times in the material produced under summons and that it is unhelpful and inappropriate to link it to any document prepared by a medial person without understanding the true provenance or context. As a result the Tribunal pointed out to the parties that such a submission as to it painting a particular position was not available and as a result could not be given weight.
33. However it was put to Mr Stephinson that the reason that he did not tell the Firearms Registry that he was being treated for PTSD and Alcoholism is because he knew that his firearms licence would be revoked or suspended.
34. Further questions were put to Mr Stephinson about his club membership as part of his genuine reason offered for the licence. It was suggested that in 2015 and 2020 he was no longer a member of a Hunting Club. Mr Stephinson said that he did attend and signed in as a guest of his father in law doing target shooting at Coffs Harbour.
35. Further questions were put to Mr Stephinson concerning his change of address. He advised that he provided both verbal and written advice via paperwork.
36. In re-examination Mr Stephinson advised that he had been seeing Dr Altman since 2013 and had attended possibly 20 times in that time. He said that more than half of the attendances were by AVL or telephone. The purpose of the sessions with Dr Altman were in his view responding to the administrative forms associated with the various claims and matters that he needed to address, not being engaged in active treatment. He said that the DVA required a lot of paperwork. The session also included the issuing of prescriptions for medication.
37. Mr Stephinson confirmed that Dr Henson provided a report for the licence reinstatement following the 'Anzac Day' incident action by Police and that in preparing the report the Event Number relating to the incident had not been requested and that is why it is not referred to.
38. In respect of the email reproduced at Pg 114 of 'R-3', Mr Stephinson said that the reference to Afghanistan and not providing the report to MLC was due to a suggestion by the Army that the report contained 'State Secrets'.
39. The Tribunal asked some brief questions of the witness at the end of his evidence consistent with its powers under s 38 of the NCAT Act. In respect of being taken to RNS Hospital by his wife following the 'Anzac Day' incident the Tribunal inquired into the purpose of that admission. Mr Stephinson said that he was treated for both his physical (ACL) and mental health due to his level of intoxication. He said that he went there to assess his current condition. Mainly to see a doctor.
40. An adjournment application on Day three was granted after some preliminary maters were dealt with as the summons material from Transport for NSW had not been provided to the applicant's Solicitors. In any event those matters took up the majority of the allocated hearing time for that half day listing. Mr Stephinson's wife was proposed to give evidence about the phone call with RMS staff over the Vehicle Ferry complaints and the matter was adjourned to allow time to consider that material prior to any cross examination of that witness.
41. On Day four of the hearing after a delay in receiving instructions Mr Stephinson's wife was no longer required to give evidence. The final witness was Ms Princi from Transport for NSW (TfNSW).

Commissioner's evidence

1. The Commissioner relied upon the material outlined at [18]. The Commissioner relied on the evidence of Ms Prinici and cross examined Mr Stephinson over a lengthy period in two sittings of the Tribunal.
2. The Commissioner relied on the s 58 material and the exhibit noted above as well as the supplementary bundle and written and oral submissions.

Ms Princi's evidence

1. In evidence in chief the witness outlined that her role was as a customer liaison officer with TfNSW who had contact with Mr Stephinson in 2020 and 2021. She said that the email at page 4 of the summons bundle was written following a conversation with Mr Stephinson and reviewing other TfNSW emails. The witness attested to her authorship and receipt of her email as true and correct. On page 12 of the summons bundle was an email that she sent within half an hour of the phone call with Mr Stephinson. The email refers to a distressing phone call. The witness says in her email that Mr Stephinson said that he would take his own life and name the staff as the cause in his letter if the vibrations did not cease and the problems with the Ferry ramp were not rectified. The witness gave evidence that she believed that Mr Stephinson was agitated and upset during the phone call. She said this was based on his manner. She understood that she was on speaker during the phone call and Mr Stephinson's wife was in the car.
2. The witness said that she reported the matter to her Manager who initiated a Serious Incident Evaluation Protocol. Various emails were then sent to the Ferry operators. The witness said that she authored the 20 September 2021 letter (pages 60 and 61 of the bundle) which was in effect a 'no further action letter' unless fresh evidence was available that might cause TfNSW to revisit the matter. The witness said that her emails and letters were complied from contemporaneous notes that she took at the relevant times.

Commissioner's Submissions

1. The Commissioner made oral submissions at the conclusion of the evidence and referred to their written submissions dated 1 September 2022.
2. The Commissioner submitted that the following matters counted against the Tribunal granting Mr Stephinson a firearms licence.

• The mental health of Mr Stephinson including his PTSD.
• The failure to advise the Commissioner of his diagnosis of PTSD in his 2015 and 2020 applications.
• The change of address and safe storage location (Berowra Waters / Coffs Harbour) and not advising the Registry.
• The issues around the Vehicle Ferry and anger and distress.
• The significant traffic record.
• The report of Dr Altman confirming chronic PTSD.

1. In respect of the 'Anzac Day' incident the Commission submitted that Mr Stephinson was given a 'move on' direction which he refused to comply with. He then calls his wife to come and collect him. The Commissioner submitted that the Tribunal should accept that the threats about putting a gun in his mouth and shooting it were real.
2. In respect of the applications to renew his licence the Firearms Registry expects applicants to be truthful in their applications. The Commissioner submitted that the evidence shows that Mr Stephinson was treated for a mental health condition or disorder and that if he was truthful he would have ticked 'yes' on the form. The Commissioner submitted that Mr Stephinson was well aware that he was undergoing treatment despite his assertions to the contrary in his evidence before the Tribunal.
3. The Commissioner submitted that Mr Stephinson denied saying words that he wanted to commit suicide by shooting himself in respect of the vehicular ferry issue, but the evidence of the witness showed that they were said. The notes were made within 30 minutes and therefore should be accepted as contemporaneous.
4. The Commissioner submitted that the position of the Registry is that there has never been an official change of safe storage address for the firearms. Whilst the applicant says that there was a change of address the respondent says that the applicant has failed to provide evidence to establish his version.
5. In respect of his traffic history the Commissioner submitted that there are many offences for speeding more than 10 mph above the limit. Further Mr Stephinson was not candid with his doctors or Police. In closing the Commissioner placed significant weight and significance on page 114 of 'R-3' reproduced at [47] above.
6. The Commissioner relied on the often cited cases of Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, Lee v Commissioner of Police [2020] NSWCATAD 144, Cusumano v Commissioner of Police NSW Police Service [2001] NSWADT 50 Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16, Martin v Commissioner of Police NSW Police Force [2017] NSWCATAD 97, Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 and Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110.

Mr Stephinson's submissions

1. It was submitted that if the Tribunal went through the Dr Altman reports it would be clear to the Tribunal that today Mr Stephinson can safely maintain control and lawfully use firearms.
2. In respect of the change of address the name details in the email were incorrect and the request were not received. Mr Stephinson's representative submitted that he did make the relevant phone calls to the Registry.
3. In respect of the traffic record, when the Tribunal looks at it in total, not isolated matters, and takes into account the evidence about hours on the road and distance travelled on the road, then they will see that the record is not significant.
4. Mr Stephinson also made submissions concerning the alleged deficits in Dr Henson's report. He submitted that the report references what was required of him by Police at the relevant time.

Consideration

1. I note that the decision under review is based upon the notion that Mr Stephinson having access to firearms would be contrary to the public interest.
2. I note that Deputy President Hennessy observed in the case of Livadaru v Commissioner of Police [2008] NSWADT 160 that in reference to the public interest at [54]: In considering the public interest, regard must be had to the underlying principle of the Act. ….
3. I note that the underlying principle of the Act concerns public safety. This notion as discuss at various stages in the lengthy hearing of this review. It was impressed upon Mr Stephinson that what the Tribunal would be considering (amongst other matters) was his ability to exercise safe control of firearms in his possession at all times. This is also achieved by compliance with the laws and regulations relating to firearms use, as well as general adherence to the law and showing candour when dealing with the Commissioner, all being necessary requirements for the Commissioner (and by extrapolation the community) to have confidence in an individual's suitability to be entrusted with firearms to achieve that purpose set out in the objects.
4. In respect of the public interest I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act identifies a purpose to deal with public safety at s 3(1)(a) of the Act.
5. Section 3 of the Firearms Act provides: 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 (ii) by promoting the safe and responsible storage and use of firearms, and
6. The Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 discussed how the Tribunal should approach matters of public interest in licensing regime reviews. 28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is: . . . 33. The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.
7. In the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal observed that the 'burden' that an applicant is required to overcome on this issue is not taken to be insurmountable.
8. The crucial issue in these proceedings concerning whether Mr Stephinson should hold a firearms licence relates to the public interest. In that regard significant concern is raised around Mr Stephinson's candour and whether his character is such that he will (as the Commissioner submitted) do whatever it takes to achieve his own ends. The Commissioner's line of questioning painted Mr Stephinson as a person who manipulates others to achieve outcomes. Illustrative of this was the line of questioning around page 114 of Exhibit 'A-3', being an email where Mr Stephinson engages in direction to Dr Altman about what evidence is and is not required in a pending medical report.
9. Turning to that email at page 114, when read as a whole it appears to be exactly what Mr Stephinson described it as being. It is a communication concerning a whole person impairment workers compensation claim. If the email was between Mr Stephinson and his lawyer it would have been inadmissible pursuant to s 38 and s 67 of the NCAT Act. The communication sits in the context of managing a whole person impairment personal injury work based claim.
10. Only the main body of the email is reproduced at [47] above. At the beginning Mr Stephinson refers to advice from a broker concerning what he needed to navigate for his claim to be successful. It is clear from the words reproduced above that Mr Stephinson has a difficult fact to overcome, that he was discharged from the Army in 2009 with clear or good health. The subsequent medical interventions and investigations had identified PTSD - defence related. In my view when the following passage from the email is read in context, and the entire context of the communication being litigation based, is considered, the words of Mr Stephinson do not appear as calculating and manipulating as they might otherwise on first reading. This needs to be clear to MLC that the army discharged me with clear health in 2009. I took the policy out in 2011 with the view that I had great health. Symptoms that affected me began to show in 2013 which I began to address with you. In 2019 I was then diagnosed with severe PTSD.
11. As a result I place little weight on page 114 of Exhibit 'A-3' as being adverse to Mr Stephinson, and do not find that it is evidence of any significant lack of candour. His manner of giving evidence was measured and thoughtful. Whilst he did appear taciturn at times I found no breach of his duty to disclose relevant matters to the Tribunal. Nor did I find his answers to be evasive. He was a careful and somewhat guarded witness possibly due to his training and professional experience. Such an approach as long as truthful and relevantly complete is permissible.
12. The next issue that the Commissioner took significant issue with was the responses on the 2015 and 2020 Firearms Licence applications concerning a lack of treatment for mental health as discussed above. Such matters regularly arise in Firearms reviews by the Tribunal. Whilst it is understandable that the Commissioner asks such questions of prospective licence holders it is also understandable that members of the public provide a range of sometimes conflicting answers on these forms or applications. Despite significant inroads in recent years the notion of mental health and mental illness still carries a stigma of sorts in our society. Mr Stephinson's evidence was that his position did not equate to active treatment but rather management of his mental health and well-being. He did not use these words specifically but it was clear from his evidence that he did not believe that he was engaged in active treatment. When it was suggested to him that taking medication prescribed by a Psychiatrist equated to mental health or mental well-being treatment Mr Stephinson acknowledged his error on oath.
13. Noting that the 2015 application was renewed without incident and that when submitting the 2020 application Mr Stephinson was acting with the knowledge of the matters ultimately identified in the 18 February 2021 report from Dr Altman, for those reasons and the reasons set out in the paragraph above, I place little weight on this issue.
14. I agree that Mr Stephinson's traffic record is poor. He has committed a significant number of traffic infringements at the rate of more than one per year of licenced driving. A significant number of the speeding offences are at the lower end and a lesser number above 15 kph over the speed limit. Traffic history is relevant to a person's general acceptance and adherence with the law and also indicates to some extent how they conduct themselves in the context of public safety. This issue is directly related to the firearms regime.
15. Bearing in mind the unchallenged evidence concerning distance travelled I consider the record in that context. Whilst the record does not hold significant weight in these proceedings it does still hold some weight to be applied to the public interest test.
16. Of greater relevance for Mr Stephinson is the complete lack of any criminal history. This matter supports a potential finding that Mr Stephinson is a person of good fame and character and that he is fit and proper to hold the relevant licence. It also goes someway to discounting significant adverse public interest arguments.
17. During the lengthy evidence a number of matters were raised concerning Mr Stephinson's failure to comply with various provisions of the firearms licencing regime. However three matters arise from that. First these matters in the main relate to notification of change of address / safe storage address. There was a residual matter raised which Mr Stephinson was not recalled for concerning whether one prior safe storage address was not an occupied premises. Mr Stephinson's evidence was that he took steps and measures to update information via portals and other electronic means. Whilst the Commissioner produced documents to establish that addresses were not updated from their perspective, this does not establish that Mr Stephinson had not given such an update. I note that the Commissioner did not call any NSW Police witnesses in the proceedings.
18. I agree with the submission that in a licencing regime centred on public safety, knowing where registered firearms are at all times is vital to the effective operation of that regime. Mr Stephinson's evidence was that in many instances the firearms were in transit whilst travelling to the north coast and at other times interstate on a family holiday.
19. When Mr Stephinson advised that the firearms were now safely stored at a Coffs Harbour address Police when attempting to seize the firearms were unable to access them even with the assistance of a locksmith. This shows that more than adequate measures were put in place by Mr Stephinson in respect of preventing unauthorised access to his firearms.
20. Second, no breaches were issued against Mr Stephinson concerning any of these matters relating to the Firearms Act or Regulation.
21. Third, Mr Stephinson maintained that at some of those times claimed by Police he had not actually changed address but was in transit or holidaying. These matters were supported by Exhibit's 'A-1' 'A-2' 'A-3' and 'A-4' which were all received without objection and no author other than Mr Stephinson was required for cross examination.
22. The authors of those Exhibits (other than Mr Stephinson) all attested to Mr Stephinson's positive character. Whilst not of significant weight in the absence of the evidence being tested by the Commissioner, the position is that these statements must be given some weight.
23. There remain two other matters of concern relating to Mr Stephinson, (a) his reported behaviour concerning the vehicle ferry and (b) his current mental health or psychological suitability to be issued with a firearms licence.
24. On the matter of Mr Stephinson's behaviour and action concerning the vehicle Ferry at Berowra Waters, it appears that the parties concede that Mr Stephinson had genuine concerns about the impact that the change in noise level and vibration was having on his family. The very fact that the relevant authorities installed noise and vibration monitoring equipment in his home goes some way to establishing that they had good reason to take this concerns seriously.
25. I note that the TfNSW witness first had direct contact with Mr Stephinson on 9 November 2020. The conversation on 20 November 2020 is the significant contact whereby the witness gives evidence that Mr Stephinson said words to the effect: 'if we (TfNSW) don't fix the ramp and the rails (as he claims the rails are not straight which is causing the vibration) then he will take his own life and name us all in the letter as the cause'. This conversation includes references to involving the media and having prominent 'shock jocks' taking on his cause about the engineering design problems and lack of response by the relevant authorities.
26. This conversation which was witnessed by Mr Stephinson's wife (who was not required for cross examination) did not mention firearms. Other records from Ferry masters indicate that Mr Stephinson would take matters into his own hands. The Commissioner's further bundle was tendered late, but was allowed because it would be just to allow it with the applicant having had time to consider it.
27. When one examines the entirety of the communications in that bundle they appeared balanced and measured but for the small number of instances where Mr Stephinson's reported comments 'tip over the edge'. In the main they are an engagement on the critical issues concerning design, engineering, monitoring and posing suggested approaches to verify and hopefully rectify the perceived problems.
28. In Exhibit 'A-1' there is no mention of threats of self harm. There is reference to threats to name and shame and conduct peaceful protests. Mr Stephinson's wife states that Mr Stephinson 'lost control in containing his emotions' during the call. I note that the evidence indicates that the problem was so significant that the family relocated from Berowra Waters.
29. Having considered all of the evidence I believe that whilst it indicates a type of reaction to stress there is no evidence that anything adverse arose from that stress which would cause me to have concerns about Mr Stephnson's ability to maintain safe and continuous control of firearms. No protest, cable cutting or self harming, or naming and shaming actually occurred. In addition the crucial comments are denied by the applicant and his witness. However in the overall context and noting that Ms Princi's evidence was tested by cross examination, I consider it likely that the said comments were made by Mr Stephinson. However for the reasons outlined above that does not change the position.
30. Turning to the final matter concerning Mr Stephinson's current psychological suitability to be issued a firearms licence, I note that Mr Stephinson relies on the report of Dr Altman dated 18 February 2021. Reliance is also placed in exhibits 'A1'-'A4' inclusive.
31. Dr Altman was not required for cross examination. He had approximately eight years treatment history with Mr Stephinson at the time of the report. Crucially the Psychiatrist makes the following findings notwithstanding Mr Stephinson's earlier diagnosis. I consider Mr Stephinson a fit and proper person to hold a firearms licence. He uses his firearms licence for hunting and for sport (such as trap shooting). These aforementioned reasons for holding a firearms licence are therapeutic for him and help his mental well being. Mr Stephinson does not have any suicidal ideation and he has no thoughts of harming anyone with a firearm. He has not in the past posed a risk to himself of suicide or of harming anyone with a firearm, He has had no untoward incidents with a firearm since the introduction of his firearms licence over ten years ago. His having a firearms licence does not put his life or the life of anyone in the public at risk.
32. Dr Altman goes on to suggest that if the licence was suspended for psychiatric reasons (which appears to again have been the case) then it should be restored.
33. I note that Mr Stephinson has no breaches of the firearms regime established. Nor does he have any criminal history. Further there is no evidence of any behavioural incidents which might constitute domestic violence type concerns in the evidence before the Tribunal. I also note Dr Altman's opinion that Mr Stephinson is currently psychologically and psychiatrically suitable to hold such a licence.
34. Whilst not the main basis for the decision for review before the Tribunal, the notion of 'fit and proper' is often referred to in the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond. The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.
35. This position is consistent with the approach that the cases outlined above have set out concerning applying the concepts in a broad manner to the available evidence and having regard to the objects and purpose of the regime. In this instance the regime is designed to protect the public as a primary consideration and for this reason under the Firearm Act access to and use of firearms is not a right but a privilege.
36. The legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3(1)(a) of that Act. However it is conceded that the purpose of the licencing regime is protective not punitive and all endeavours are directed towards maintaining and enhancing public safety.
37. I also note that the Appeal Panel case of Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234, examined giving proper consideration of all relevant matters when determining matters as to the public interest. At [24] - [25] of Lee the Appeal Panel observed: 24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d). 25. In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or permit as irrelevant considerations.
38. In the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal observed that the 'burden' that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed: 56 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. 57 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".
39. In balancing those risk matters with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, it would be in the public interest to grant the licence.
40. Having regard to the cases referred to above in my view it would not be contrary to the public interest to grant Mr Stephinson a firearms licence and I so find.
41. In balancing those risk matters as referred to in Rose with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, it would be in the public interest to grant the licence application. In my view the evidence establishes that the major concerns of the Commissioner and the necessary basis for suspending the licence have to a significant extent fallen away on assessment of the available evidence during the administrative review.
42. The appropriate approach would be that the Tribunal sets aside the decision.

Conclusion

1. Because of the findings that I have made, it is appropriate to set aside the decision of the Commissioner. As this is an administrative review matter, it therefore follows that the correct and preferable decision is to set aside the decision of the respondent.
2. I therefore make the following orders:

Orders 1. Time to lodge the administrative review application is extended until 9 June 2022 pursuant to s 41 of the Civil and Administrative Tribunal Act 2013. 2. The decision to refuse the Applicant's Category AB Firearms Licence is set aside. 3. The Respondent is to grant the applicant a Category AB Firearms licence on the terms sought in the 6 October 2020 application.

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: 06 October 2023