Vassallo v Commissioner of Police, NSW Police Force

The issue for determination

1. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner's decision. This requires consideration of whether the Applicant is a fit and proper person to have a firearms licence, and whether it is contrary to the public interest for him to hold a licence under the Act.

Nature of Proceedings

1. Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal's jurisdiction includes review of a decision by the Commissioner to refuse an application for a firearms licence.
2. Section 63(1) of the ADR Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: see McDonald v Director General of Social Security (1984) 1 FCR 354 at [357].
3. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material so as to either confirm the original decision, vary it, or set it aside and substitute another. It was said in Drake v Minister for Immigration and Ethnic Affairs (1979) NSW 2 ALD 60 at [77] (albeit in another context) that "[the] duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made."
4. Under section 38(2) of the Civil and Administrative Tribunal Act 2013, 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.
5. The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. There is, however, no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at paragraphs [28] - [34]. The civil standard applies even if the conduct in question may be criminal: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA66; (1992) 110 ALR 449.
6. The civil standard of proof - the balance of probabilities - is set out in section 140 of the Evidence Act 1995, as follows: (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
7. The Respondent contends that the application should be refused on the basis that the Applicant is not a fit and proper person to hold a firearms licence and that it would be contrary to the public interest for him to do so.
8. Section 11 (3)(a) of the Act prescribes that a firearms licence must not be issued unless 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.
9. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of that licence would be contrary to the public interest.
10. In these proceedings the Tribunal has the same powers as given to the Commissioner under the Act.

Fit and proper person

1. The Act places an emphasis on the need for licensees being fit and proper for the role. The Tribunal has considered the issue of whether an applicant is a fit and proper person to hold a licence under the Act on numerous occasions.
2. The question of fitness and propriety is one of fact to be determined objectively, considering all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
3. In the context of the Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at paragraph [22].
4. The question of a person's fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
5. They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
6. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
7. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' (at 156-7): "The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

Public interest

1. The expression "public interest" is not defined in the Act. It is well established that, in considering the meaning of that term, the Tribunal will have regard to the context in which it appears. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated, in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."
2. The "public interest" allows issues going beyond the character of the Applicant to be considered. These may include concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
3. "Public interest" embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to "public interest" is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
4. In considering the public interest, regard must be had to the underlying principle of the Act. 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. The Tribunal must give proper, genuine, and realistic consideration to each of the relevant matters. A decision maker should not shy away from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph [22].
5. The public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements.
6. As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at paragraphs [24] to [25]: 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. ...
7. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP 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 a case on the "fit and proper person" test, the formulation 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 paragraph [23].
8. 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 considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

Material before the Tribunal

1. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act ("the section 58 material"). This material includes a number of records held in the Respondent's electronic database ("COPs"). The section 58 material includes information about the circumstances surrounding the Applicant's offences and his traffic record. Mr Roberts also provided written and oral submissions.
2. The Applicant relies on his own evidence and a number of character references. As noted above, he relies on two reports from Dr Sathish Dayalan, Forensic Psychiatrist. He also provided a certificate which shows that he has completed a traffic offender intervention program. He provided witness statements from his daughters, who have lived with him since around 2010, and a statement from his mother who attended the elder daughter's school with the Applicant in December 2009. The Applicant's attendance at the school was in breach of an AVO that was in place at the time. The Applicant attended the hearing, gave evidence, and was cross-examined. The Applicant's counsel Mr Lucas provided written and oral submissions.
3. Dr Dayalan was not required for cross-examination.

The Respondent's Case

1. As noted, the Respondent submits that the correct and preferable decision is to refuse to grant the licence that the Applicant is seeking. She did not rely on any witness evidence and did not seek to cross-examine or test further the Applicant's evidence other than through cross-examination of the Applicant.
2. The Respondent points to several issues in support of her position that the Applicant is not a fit and proper person to hold a firearms licence and that it is contrary to the public interest for him to do so.
3. In particular the Respondent points to the Applicant's record of an AVO breach and his assault occasioning bodily harm conviction. However, the Respondent conceded that the Applicant's conviction for assault and for breaching an AVO "is somewhat dated". Nevertheless, Mr Roberts submitted that the mere passage of time does not prove a reformation of character, and that it is necessary for the Applicant to demonstrate that he had become a changed person and that misconduct would not re-occur.
4. Mr Roberts also conceded that the Respondent is not in a position to contradict that Applicant's evidence in relation to other issues that were identified in the Internal Review decision, including allegations that in 2006 the Applicant had removed a gas bottle from a service station without paying, and that in August 2009 he had possessed and discharged a firearm unlawfully at a property in Pilliga.
5. In addition, the Respondent relies on the Applicant's traffic record and his failure to provide accurate information in his applications for a licence under the Act and the Applicant's alleged failure to provide Dr Dayalan with complete details of his medical history.
6. The Respondent noted that the Applicant has a very poor driving record with over 37 infringements, including speeding, not wearing a seat belt, negligent driving, and disobeying traffic lights. Mr Roberts also noted that the Applicant has had his licence cancelled due to the loss of demerit points, had his licence suspended for the same reason and had 2 suspensions not implemented due to applying and being granted a "good behaviour bond".
7. Mr Roberts points to views that I expressed in Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273. I stated at paragraphs [99] and [102]: [99] The Tribunal has held that an applicant's history of repeated breaches of traffic laws and regulations is a relevant consideration in regard to firearms licensing issues. The traffic laws and the firearms legislation are all directed towards ensuring public safety. … … [102]. … The traffic laws and the firearms legislation are also directed towards ensuring public safety. The Applicant's repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme aimed at ensuring public safety. By his own admission he has had an attitude which showed a disregard for regulations that govern his behaviour.
8. In Hijazi v Commissioner of Police, NSW Police Force [2015] NSWCATAD 252 Senior Member Frost stated at paragraphs [38] - [39]: [38] In some circumstances it is appropriate to give a poor driving record significant weight when considering a person's general attitude to compliance with the law but it must surely be regarded as of less significance when an applicant has a fully compliant history in the particular regulated activity under consideration. This is such a case. ... [39] Accepting, as I do, that public safety is a paramount consideration, and acknowledging that holding a firearms licence is a privilege, not a right, I am nevertheless satisfied that Mr Hijazi should have his category A, B and H licences restored. The best indicator of future behaviour is past behaviour and in that regard I am satisfied that Mr Hijazi's continued holding of a firearms licence in those categories does not place public safety at risk.
9. The Respondent also relies on views expressed by Senior Member Andelman in Vitaliti v Commissioner of Police, NSW Police Force [2022] NSWCATAD 16. The Senior Member described Mr Vitaliti's traffic record at paragraphs [40] - [42] as follows: Traffic Offences 40 Since 2003, Mr Vitaliti has had his driving licence suspended on ten occasions. Some of the more serious offences include, exceed limit by over 30km on 13 June 2020 and 1 August 2004, burnouts and drive while suspended in 2005. 41 In regard to the last offence of exceeding the limit by more than 30km on 13 June 2020, Mr Vitaliti said that it was night time, he was heading home and he was overtaking a car. 42 Mr Vitaliti's counsel described the traffic offences as 'not fantastic'. It was put to Mr Vitaliti that his driving behaviour demonstrates a disregard for the safety of himself and the safety of the public, Mr Vitaliti responded that 'I know I do not have a strong record'.
10. At paragraph [114] Senior Member Andelman concluded: 114 I have considered Mr Vitaliti's conduct as a whole. I find that based on his extensive history of traffic infringements, including the most recent serious offence in June 2020 together with the supply of false information in his Category AB Firearm Licence application dated 7 August 2018, in regard to a question that was material to the application, the correct and preferable decision is that it is in the public interest for the Tribunal to affirm the decision of the Commissioner to revoke Mr Vitaliti's firearm licence.
11. In the present matter the Respondent argues that the Applicant's driving record demonstrates a lengthy lack of respect for the law and an inability to follow basic rules and regulations in place to ensure public safety. On that basis, the Respondent submits that the Applicant's driving record creates a genuine concern for the Applicant's ability to comply with firearms law in the future.
12. The Respondent notes that the Applicant completed a Traffic Offender Intervention Program in November 2021. However, it is submitted that there has not been a sufficiently long period of unblemished driving to establish that the Applicant has a newfound regard for public safety. Mr Roberts submitted that the Applicant's driving record overwhelmingly indicates that he cannot be trusted to comply with a regulatory regime intended to ensure safety.
13. In regard to the allegation that the Applicant provided false or misleading information to the Firearms Registry, and failed to disclose his full history of mental health issues to Dr Dayalan, the Respondent contends that 1. In his 17 July 2008 licence application, the Applicant falsely answered "No" to the question of whether he had "been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled, or revoked". 2. In his 2 December 2020 licence application, and in direct contradiction to the report of Dr Chua, the Applicant answered "No" to the question of whether he had "in the past 12 months, been referred or treated for a mental or nervous disorder or illness.
14. Mr Roberts submitted that the importance of individual's providing truthful information to the Firearms Registry is reflected in section 70 of the Act which provides: 70 False or misleading applications 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. Note - Reference to a pistol includes a prohibited pistol.
15. Mr Roberts referred to the Applicant's evidence and notes that the Applicant did not refer to the answer that he gave in the 2 December 2020 licence application but in regard to the 17 July 2008 application, he stated that he should have answered "Yes" to the question and that he "made an honest mistake and was not trying to hide or get away with anything".
16. Mr Roberts referred to the decision in Kogias v Commissioner of Police [2020] NSWCATAD 297, where Senior Member Walker took the view that an applicant who had falsely indicated that he had not previously had his licence revoked knew the form he had completed was incorrect. Senior Member Walker did not accept that the response was an error and not intentional.
17. In the present matter, the Respondent's submission is that the Tribunal should not accept the Applicant's explanation given the Applicant has provided false information on more than one occasion. However, if the Tribunal accepts that the Applicant did not deliberately provide false information, the Tribunal should accept that he was careless in regard to the accuracy of the information that he provided.
18. The Respondent submits that the Applicant's provision of false or misleading information to the Firearms Registry on two occasions, and in response to two different questions, demonstrates a willingness to be dishonest with authorities and a disregard for legislative schemes promoting public safety. The functioning of a proper system of firearms licensing depends on applicants providing true and correct information in a comprehensible manner: see discussion in Leatham v Commissioner of Police [2021] NSWCATAD 121 at paragraph [18].
19. In the Respondent's submission, in addition to the Applicant's poor driving history, it would not be in the public interest for the Applicant to have a firearms licence.
20. In regard to the Applicant's disclosure of his medical history, the Respondent notes that the Applicant provided a report of his General Practitioner, Dr Chua. Dr Chua's report was dated 14 February 2023 and disclosed that Dr Chua had treated the Applicant for mental health conditions in the periods: 1. 3 October 2008 to 10 July 2009; and 2. 6 October 2020 to 19 November 2020 (at which time the Applicant was referred to a psychologist, Sarah Playstead, was prescribed citalopram and subsequently stopped taking antidepressants due to adverse effects).
21. In the Respondent's submission, the report of Dr Chua indicates that: 1. the Applicant failed to disclose his full history of mental health issues to Dr Dayalan to the detriment of the reliability of Dr Dayalan's Initial Report; and 2. the Applicant has been non-compliant with his mental health treatment which suggests that the Applicant's mental health issues may not be being adequately managed, and that there is a risk that the Applicant will not comply with any future treatment plans.
22. As noted above, in light of Dr Dayalan's reports, the Respondent's solicitor, Mr Roberts, conceded that the Applicant's mental health was not in issue.
23. In conclusion, the Respondent's submission is that in the circumstances the Applicant is not a fit and proper person to hold a firearms licence and it would not be in the public interest for the Applicant to have a firearms licence. Therefore, it is submitted, the correct and preferable decision is that the Applicant's application for a firearms licence should be refused, and that the Respondent's decision should be affirmed.

The Applicant's case

1. As noted, the Applicant relies on his own evidence and also the material that has been filed in support of his application, including Dr Dayalan's reports, character references, statements from his daughters and his mother, and a certificate showing that he had completed a traffic offender intervention program.
2. The Applicant has acknowledged his criminal history and traffic record and he does not dispute much of the detail provided in regard to his past behaviour. He apologised for the poor decisions that he made in the past.
3. He stated that he sincerely regrets and for his conduct in assaulting Mr Ginty. In regard to the assault conviction the Applicant stated: 2007 Assault Upon Mr Ginty I am ashamed of what I did and regretted it immediately. This occurred before [his ex-wife] and I separated when money was very tight and I had little work. [His ex-wife] encouraged me to try and recover the monies due. I did not go to see Mr Ginty intending to assault him. Joe Azzopardi went with me as moral support as I was apprehensive about approaching him but things got out of hand very quickly after I asked to be paid the monies owed. On 10 August 2004 my company On The Spot Maintenance Pty Limited obtained judgment against ET Ginty Ry Limited in proceedings No. 1637/04 at Parramatta Local Court ... The amounts due under the judgment totalled $6,118.47 and an Order was made for payment to be made within 6 weeks. The judgment was not paid within time. I commenced enforcement proceedings by having the Sherriff go out to try and collect the debt. Mr Ginty made an application to pay the judgment debt by instalments. An Order was made by the Local Court at Penrith that the judgment be paid by instalments of $1,020.00 per month commencing on 15 October 2004: ... Mr Ginty was at the Court when the instalment Order was made. I had spoken to him throughout the day and he promised me that the judgment debt would be paid in full. He said that he just needed time to pay the judgment debt. The only instalment paid was by cheque dated 30 November 2004 deposited on 14 December 2004 … I made repeated attempts to contact Mr Ginty and to speak to him about paying further instalments but he avoided speaking to me. I considered the whole thing to be unfair and that Mr Ginty was somehow being unfair by agreeing to pay by instalments and then not doing so. I wish to make plain that in saying that I am not intending to excuse what I did only to explain what happened. I have been told that getting judgment against ET Ginty Pty Limited did not mean that Mr Ginty was personally liable to pay those monies. Only his company was liable to pay the judgment monies. As I have said, I wish that I could have undone what was done. I am grateful that on 24 September 2008 the Downing Centre District Court set aside the sentence of 12 months imprisonment and imposed a section 9 bond to be of good behaviour for 2 years. The notation of the sentence imposed in the District Court says that I was to accept the supervision of the NSW Probation Service in relation to psychological counselling. I recall that my solicitor at the time had referred me to a psychologist for a report to be used on the appeal to the District Court. I do not have a copy of the report. As far as I can recall the report did not say that I was suffering from any psychological problem but suffering from a lot of financial stress and problems in my marriage ... I was never contacted by the NSW Probation Service in relation to counselling. I met with a Probation Officer on a number of occasions. I was never offered any counselling or directed to undergo any counselling. Eventually the Probation Officer told me that I did not have to report to him again. I note that as of 19 December 2007 I had a Firearms Licence and owned a number of firearms. Even so, I did not even think of or consider using a firearm when going to speak to Mr Ginty. That sort of thing is just not in my nature. My Firearms Licence was not suspended until a Provisional Apprehended Violence Order was made on 11 June 2008 by Police at Coffs Harbour. It was not suspended in relation to the assault upon Mr Ginty.
4. The Applicant provided a context for the AVOs and the finding that he had breached an AVO. He disputes the Respondent's record of some incidents involving his ex-wife and allegations in regard to his children. The Respondent has not provided any evidence to contradict his explanation.
5. In regard to the breach of the AVO in December 2009, the Applicant noted that there had been an agreement between the Applicant and his ex-wife in regard to access to their children. However, while they had reached an agreement, the strict terms of the AVO prevented the Applicant attending the children's schools. When he attended one of the schools, he was therefore in breach of the AVO. When the matter came before the Local Court, the breach was found proven, but no action was taken in regard to the breach.
6. The Applicant also noted that less than a month after the breach, one of his daughters moved to live with him permanently and the other daughter joined them shortly afterwards. He submitted that in those circumstances there must be doubt in regard to whether he posed a threat to either of the children.
7. In relation to the false answers in his 2008 firearms licence application form he stated: I answered "No" to question H(a) about me having "Been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked." I should have answered "Yes" to that question. I made an honest mistake and was not trying to hide anything or get away with anything. I apologise for my mistake. I answered "Yes" to whether in the last 10 years I had been the subject of an AVO. If I was trying to hide something or just intending to tell deliberate lies I might have been expected to answer "No" to that question as well but I did not do so. No one told me that I had made a mistake when completing the Firearms Licence Application form. I would have corrected the mistake if I had the opportunity to do so. … [In] a P650 Form I completed on 7 August 2015, I answered the question about licence suspension question there "Yes". I was not trying to deceive anyone. I just made a mistake when filling out the earlier Licence application.
8. In relation to his driving record, the Applicant stated: I admit [my driving record] is not impressive. I recognised that my driving had to change. My former solicitor Glen Kable suggested that I attend a traffic offenders' program. I completed the course on 29 November 2021. ... As a result of speaking to my former solicitor and attending the program. I reflected on my driving history and decided to change. I have had no driving offences since 13 August 2021. I intend not to commit any further driving offences.
9. The Applicant's counsel, Mr Lucas, submitted that the Applicant's traffic record is one factor, and not the only factor, that the Tribunal is required to consider in determining whether the Applicant is a fit and proper person on public safety grounds to hold a firearm Licence.
10. He noted that the Respondent has accepted that there has been a change in the Applicant's behaviour. He further noted that it is apparent that the Applicant has taken ownership of his poor driving record, decided to change, and is now complying with his public safety obligations as a driver. The most recent exceed speed offence was slightly more than 2 years ago. Mr Lucas submitted that the Tribunal should allow the application notwithstanding the Applicant's driving history.
11. In his evidence before the Tribunal the Applicant questioned the Respondent's contention that he had ever suffered from mental health issues. That view is supported by Dr Dayalan's Reports.
12. In relation to his dealings with Dr Chua the Applicant stated: In October 2008 I was feeling down and spoke to Dr Chua at Penrith Medical Centre. Dr Chua referred me to a psychologist. I spoke to the psychologist and initially I thought it was helpful and I started to feel better. Over time I did not think that I needed to continue seeing the psychologist. I saw the psychologist about 3 times over about 2 months. I saw Dr Chua again at the beginning of December 2008 after the Final Apprehended Violence Order was made. I was devastated because I had defended the case but lost. He gave me another prescription for Cipramil. The next time when I spoke to Dr Chua about how I was feeling was in October 2020. A number of things happened to me one after the other causing me to feel flat and dejected. Those things were: the COVID pandemic and the restrictions brought about by the pandemic; the downturn in my work; I was diagnosed with an enlarged prostrate and underwent surgery; the side effects of having had prostate surgery; the breakdown of a 3 year relationship with my girlfriend; and the fact that my sister's husband had been sexually harassing my daughter ... Dr Chua gave me another prescription for Cipramil. I was referred to another psychologist in Penrith. The psychologist offered advice about only worrying about what you can control and ignoring everything else. It was good advice and I have been able to do that. In November 2020 I rang Dr Chua and told him that Cipramil was not working for me and it was causing me side effects that were making me feel worse. He confirmed that I could discontinue taking the tablets. I felt better when I stopped taking the tablets. I have always been willing to seek medical help when I thought that it might be useful. I do not think it is wrong to talk to people about problems. I do not think that means that I have a mental illness. I see advertisements on TV about not keeping quiet and being open to talking to other people. I am not someone to ignore problems and not take care of myself. I have never had thoughts of self-harm or thoughts about hurting someone else. I have never missed a day of work because of feeling down. I have always been able to manage my business. I have always been able to socialise and continue my recreational activities. I know that possession of a firearm is a privilege but I also Know that I can be trusted to be safe and responsible if granted a Firearms Licence.
13. Mr Lucas provided a detailed submission in regard to the approach that the Commissioner has taken in regard to the Applicant's mental health and more generally in regard to the relationship between depression and risk to the public. In his written submissions Mr Lucas wrote: It should be noted that depression is not a psychiatric diagnosis and is used loosely to describe a state of mind. There is a live issue on the evidence as to whether the Applicant ever suffered from a mental illness as alleged by the Respondent. It is a myth to suggest that people go through life without reacting to things that happen to them or what is commonly referred to as experiencing "ups and downs". Sadness, grieving, feeling low and/or asking questions of oneself are perfectly normal reactions. They should not be labelled as depression. They should not be used to suggest that a person is suffering from "mental health issues". Furthermore, the Applicant should be commended for being willing to talk about issues rather than bottling up his emotions or pretending that nothing is wrong. Considerable amounts of monies have been expended in public health campaigns assuring people that it is acceptable to talk about problems. The approach of the Respondent in respect of this issue is to condemn the Applicant for being open about events that concerned him. Furthermore, the evidence does not suggest that anything experienced by the Applicant would affect his ability to possess, store and use firearms safely in the past or in the future. It is of course possible for any person currently holding a Firearm Licence to suffer a deterioration in mental health to such an extent that public safety might be endangered. The Applicant poses no greater risk to public safety than any other person in our community. That is not a reason why the Appeal should be refused. It is submitted that the Tribunal ought to allow the appeal notwithstanding the" Respondent's submissions about the Applicant's mental health. There is no risk to the public should the Applicant be issued a Firearm Licence.
14. Mr Lucas also noted the Applicant's evidence of his circumstances in 2020 and submitted that he would have had to have been super-human to have not been affected. He further submitted that the Applicant has raised two daughters since 2010, run a business and has clearly functioned at a high level. He submitted that in the circumstances the Tribunal should not conclude that the Applicant has ever suffered from a mental health condition. Further, no weight should be given to the contention that he had failed to declare that he suffered from a mental health condition.
15. Mr Lucas submitted that the Applicant is a fit and proper person to hold a licence under the Act and that granting him a firearms licence is not contrary to the public interest.

Consideration

1. As has been noted above, the Applicant has a record that includes a conviction for assault. He has been the subject of AVOs and has been convicted of breaching an AVO. It is also common ground that the Applicant's Traffic Record is poor, with over 37 infringements, including speeding, not wearing a seat belt, negligent driving, and disobeying traffic lights.
2. The question of whether the application for a firearms licence should be granted turns on whether there has been a change in the Applicant's behaviour which suggests that he is now is a now fit and proper person to hold a licence under the Act and whether granting him a firearms licence would be contrary to the public interest. In turn, these issues require consideration of whether the Applicant poses a risk to public safety if he has access to firearms.
3. I have referred above to the decisions in Ward v Commissioner of Police and Webb v Commissioner of Police. As noted, the Tribunal has regularly followed the principle that it must be satisfied that there is virtually no risk to public safety if a firearms licence is to be granted. Only real and appreciable risk needs to be considered.
4. I accept the Applicant's evidence in regard to each of the issues that the Respondent has raised. I accept that the Applicant is remorseful in regard to his December 2007 assault on Edward Ginty. Further, in my view, sufficient time has passed since the Applicant's conduct that led to his conviction for assault for it to be given little weight in regard to the issue of whether the Applicant poses a risk to public safety should he have access to firearms.
5. Similarly, the Applicant's uncontested evidence shows that the circumstances that existed at the time that he was made subject to the AVOs are no longer present. Both his daughters have provided statements in regard to their present circumstances, and both indicated that the relationships are positive. Neither was required for cross-examination. In my view, little weight should be given to the imposition of the AVOs and the AVO breach for the purposes of this consideration.
6. Of greater concern is the Applicant's driving record. The record is poor and has continued over a long period of time. As the Respondent has correctly identified, the Tribunal has often found that repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme aimed at ensuring public safety.
7. However, as has been agreed, the Applicant has completed a traffic offender intervention program and his the most recent exceed speed offence was on 13 August 2021. I agree with Mr Lucas that it appears that the Applicant has taken ownership of his poor driving record, decided to change, and is now complying with his public safety obligations as a driver. In the circumstances I do not consider that the Applicant's driving record should prevent him from holding a firearms licence.
8. In regard to the provision of false information on his licence applications forms, I accept that the Applicant was not trying to deceive the Respondent in providing false information in his 17 July 2008 licence application or that he did it deliberately. I accept that he was careless in regard to the accuracy of the information that he provided but, in the circumstances, I do not consider that this carelessness should prevent him from holding a firearms licence. I am confident that in the future he will pay close attention to the information that he provides to the Respondent.
9. In regard to the 2 December 2020 licence application, I am not satisfied that the Applicant provided false information when he answered "No" to the question of whether he had "in the past 12 months, been referred or treated for a mental or nervous disorder or illness. I do not accept that he had a "mental or nervous disorder or illness".
10. I note that the Respondent has conceded that the Applicant's mental health is no longer in issue. That concession was properly made. In light of Dr Dayalan's Reports, it would have been unreasonable to adopt any other position. The obligations of a model litigant apply in proceedings in the Tribunal. The duties imposed upon a model litigant during the course of proceedings require it to act in a manner to assist a court or tribunal to arrive at the proper and just result. In this regard, the notion of "fair play" is relevant, affecting both the content of the evidence and submissions made and the manner in which any proceedings are conducted.
11. There can be no suggestion that Mr Roberts has not met those obligations in the conduct of the hearing. However, the position that the Respondent has adopted in regard to the Applicant's mental health at the internal review stage is concerning.
12. I agree with Mr Lucas in his criticism of the view that perfectly normal reactions to circumstances should not be readily labelled as depression. Nor should the suggestion be made that a person is suffering from mental health issues in those circumstances. Similarly, an agency should not demonstrate a readiness to reject an applicant's psychological evidence which suggests that the person is not suffering from mental health issues while not providing any evidence to contradict it.
13. In the circumstances of this matter I agree with Mr Lucas that the evidence does not suggest that anything experienced by the Applicant would affect his ability to possess, store and use firearms safely in the past or in the future.
14. On the totality of the material before me I am satisfied that the Applicant is a fit and proper person to hold a firearms licence. I accept Dr Dayalan's Reports and accordingly I have formed the view that there is virtually no risk to the public if the Applicant is given access to firearms. I am not satisfied that it would be contrary to the public interest for the Applicant to be granted a firearms licence.
15. It follows that the correct and preferable decision is to set aside the Respondent's decision and in its place to make the decision that the licence is granted.

Orders

1. The decision to refuse the Applicant's application for a Category AB firearms licence is set aside.
2. The decision is made that the application is granted.

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 2023