Wright v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2023-09-14

REASONS FOR DECISION

This case is about the decision of the Commissioner of Police to refuse Mr Wright a firearms licence.

2019 Firearms licence application

Mr Wright applied for a Category B firearms licence on 8 October 2019. The Commissioner refused that application on 2 December 2020 because of Mr Wright's "recorded history of mental illness" and what the Commissioner considered to be "unresolved concerns" regarding Mr Wright's mental health. Reference was made in the decision to Roads and Maritime Services ('RMS') records which showed a condition of 'Mental health - Post-Traumatic Stress Disorder' was imposed on Mr Wright's driver licence on 28 July 2020. The Adjudicator also referred to Mr Wright's alleged "aggressive behaviour" towards police on 5 June 2009.
The Adjudicator stated that the nominated property for the purpose of the genuine reason of recreational hunting/vermin control was too small in size (two hectares). By the time Mr Wright made a further firearms licence application in 2021 the Respondent accepted that Mr Wright was the owner of rural land of approximately 140 acres. Mr Wright believed the Adjudicator used Mr Wright's residential home address rather than his farm address for the purpose of assessing the size of the land. This issue was not raised by the Respondent in these proceedings.

2021 Firearms licence application

Mr Wright lodged a fresh application for a Category B firearms licence on 17 September 2021 and supplied a mental health assessment form from Dr Duncan Wallace, psychiatrist, dated 17 August 2021.
On 26 October 2021 the Commissioner of Police ('Commissioner') refused that application. The basis for refusal was that the Commissioner placed "substantial weight" on Dr Wallace's report. Dr Wallace stated in his report that Mr Wright's conditions of Post-Traumatic Stress Disorder ('PTSD') and Major Depressive Disorder "appear to be in a good stable remission" but also observed that Mr Wright "deviated" from his treatment by reducing the dose of antidepressant "without consultation". Dr Wallace's opinion was that Mr Wright's mental disorders may relapse "at some time in the future if [he was] to cease treatment and/or resume alcohol abuse". It was on the basis of this information that the Adjudicator decided that it was not in the public interest to issue the firearms licence.
Mr Wright exercised his right to request an internal review and as part of that request provided a report of Dr Andrew Frukacz, psychiatrist, which appears to have been completed on or about 27 June 2022.
The Senior Adjudicator affirmed the decision on 14 September 2022. The Senior Adjudicator noted that the reduction in the dose of anti-depressant was carried out "with the knowledge and consent" of Mr Wright's General Practitioner, Dr Robert Marsham. The Senior Adjudicator expressed "significant concern" at the statement Dr Frukacz in his report that "over time, if he wished to" Mr Wright might in future wish to reduce and cease the anti-depressant medication. The Senior Adjudicator took this view because of the opinion of Dr Wallace that there is a risk of relapse of Mr Wright's mental health conditions if he was to cease treatment or resume consumption of alcohol and if there was a relapse of any of his mental disorders the "level of risk regarding [Mr Wright's] possession and use of firearms could change significantly and require reassessment".
The Senior Adjudicator also took into account Mr Wright's alleged conduct on 5 June 2009 which gave rise to charges of "use offensive language in/near public place/school", "possess prohibited drug" and "assault police office in execution of duty w/o actual bodily harm". These charges were the subject of a severity appeal to the District Court and then dealt with under section 32 of the Mental Health Act. The Senior Adjudicator also placed "considerable weight" on another incident involving an interaction Mr Wright had with Police on 11 August 2022. Both incidents are discussed further below under the heading 'The hearing'.
The Senior Adjudicator also relied on what is described as a "failure" by Mr Wright to "answer the personal history questions [on the 8 October 2019 firearms application form] truthfully and accurately".

Application for administrative review and relevant procedural history

On 12 October 2022 Mr Wright lodged an application for administrative review of the decision on 26 October 2021 to refuse Mr Wright a firearms licence.
On 19 May 2023 a request from the Applicant for an adjournment was refused by the Tribunal. The adjournment decision was then appealed. Principal Member Suthers reversed that decision and the appeal was otherwise dismissed on the basis that the Appellant had withdrawn the appeal. The matter was relisted for hearing on a date to be fixed.
The application for review was then heard in the Administrative and Equal Opportunity Division on 14 September 2023.

Relevant legislation

The Firearms Act 1996 establishes a licensing and permit scheme for the possession and use of firearms in NSW.
The underlying principles set out in section 3(1) the Firearms Act 1996 include: …(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…
The objects of the Firearms Act 1996 in section 3(2) include …(b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner…
A 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": section 11(3)(a) of the Firearms Act 1996.
Section 11(4) of the Firearms Act 1996 states that a licence must not be issued if the Commissioner has reasonable cause to believe 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.
A licence must not be issued if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information, that the person is "a risk to public safety" and issuing a firearms licence would be "contrary to the public interest": section 11(5A) of the Firearms Act 1996.
The Commissioner may refuse to issue a licence if the Commissioner considers that to do so would be "contrary to the public interest": section 11(7) of the Firearms Act 1996.
Section 70 of the Firearms Act 1996 makes it an offence a person to make a statement or provide information in an application under the Firearms Act 1996 that the person knows to be false and misleading in a material particular.

Administrative review jurisdiction

The Tribunal's jurisdiction to review a decision of the Commissioner of Police to refuse to issue a firearms licence is derived from section 75(1)(a) of the Firearms Act 1996. That jurisdiction is exercised under the Administrative Decisions Review Act 1997.
When determining an application for an administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, meaning legislation and common law: section 63 of the Administrative Decisions Review Act 1997.
The Tribunal is not confined to only considering the material that was before the Commissioner at the time the decision under review was made. The Tribunal can also have regard to any relevant material before it at the time of the review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
The Tribunal is to approach the issue of whether the firearms licence should be granted to the Applicant afresh, without any presumption as to the correctness of the decision under review: for example, see McDonald v Guardianship and Administration Board [1993] 1 VR 521 at [530].

Reason for applying for a firearms licence

Mr Wright is a solicitor by profession. He seeks a firearms licence for the purpose of vermin control as the owner of rural land.
Mr Wright relied on his affidavit of 14 April 2024. It is uncontested that Mr Wright requires a firearms licence to deal with wild pigs on his rural property. The feral pigs have destroyed parts of the terrain and fences on Mr Wright's property and entered his neighbour's property.

COPS entry

Mr Wright was at an NRL game at Leichardt Oval on 5 June 2009. According to NSW Police Force Computerised Operational Policing System Records (COPS), a security officer pointed Mr Wright out to Police. Police observed Mr Wright as "loud, unsteady on his feet" and "in possession of a open can of beer and another unopened can of beer". Police allege that Mr Wright had a cigarette containing cannabis which he attempted to put on the hand of one of his friends. Police allege that when asked, Mr Wright denied that he had possession of the cigarette.
Police also state in the COPS entry that Mr Wright made statements such as "this is a fucken joke, I served in Iraq for this country you can't treat me like this". Mr Wright was placed under arrest and Police allege that Mr Wright "pulled away from police and tried to walk into the crowd". He was placed in handcuffs. Mr Wright is alleged to have said that this is "fucked, fucked, I can't believe you are doing this to me".
Police allege that Mr Wright deliberately fell over and hit his head on a wooden fence and then claimed he had been assaulted by Police. Mr Wright is alleged to have refused to accept the field court attendance notice Police issued. He is alleged to then return to speak with a police officer as he thought the officer had not returned his driver licence. When the officer denied having the licence, Mr Wright is alleged to have "headbutted" the officer, "connecting with his forehead". Mr Wright is then alleged to have fallen on the ground and alleged that he had been hit. He was conveyed by police caged vehicle to the police station and on exiting the vehicle is alleged to have fallen to the ground again alleging that he had been assaulted by police.
A note is made in the COPS records that the police officer who is alleged to have received the headbutt "was uninjured". Police record that the cigarette contained 0.2g of cannabis.

Mr Wright's evidence

Mr Wright described himself as "very intoxicated" at Leichardt Oval on 5 June 2009. He said that Police approached him and put both his hands behind his back and "slammed" him into the wet muddy turf and removed his suit jacket and wallet.
Mr Wright said he could not recall swearing and making statements to Police such as their actions towards him were a "fucken joke". He added that if he did make those comments to Police he would take them back if he could. He agreed that he had pulled away from Police when he was under arrest and tried to walk into the crowd. He said he did not recall falling to the ground and falsely claiming he had been assaulted by Police. He admitted that he recalled parts of the incident but not others.
Mr Wright said got his wallet back from Police he could not find his driver's licence. He said he suspected that the police officer had accidentally kept it. He asked the officer for his licence back and during that interaction he said his "forehead inadvertently connected with the police officer". He accepted this amounted to an assault on the police officer.
Mr Mattson, for the Respondent, took Mr Wright to the affidavit of Geoffrey Harrison, a barrister who knows Mr Wright and provided a character reference for him. In that affidavit, Mr Harrison stated that Mr Wright drew his attention the charges arising from the Leichardt Oval incident. Mr Harrison said that that the "extent of the assault" was "the touching a police officer's hat". Mr Wright said he recalled telling Mr Harrison that.
Mr Mattson also referred Mr Wright to an excerpt of the affidavit of Dr Enrico Parmegiani, consultant and forensic psychiatrist. Dr Parmegiani records that Mr Wright told him that he "moved too close to the officer" and "his forehead accidentally touched the tip of the officer's cap". Mr Wright responded to Mr Mattson's questioning by stating that he touched the tip of the officer's cap.
According to the criminal history provided by the Respondent, Mr Wright was subsequently charged with assault police officer in execution of duty without actual bodily harm and use of offensive language in/near public place/school. He was also charged with possess prohibited drug. Mr Wright explained that this was for possession of a single marijuana cigarette.
The District Court, on appeal, dealt with all charges under section 32 of the Mental Health (Forensic Provisions) Act 1990, with the charges dismissed unconditionally. His Honour Judge Hosking commented in his judgment that Mr Wright's friend may have been the one smoking the cannabis cigarette. The Judge observed that he could not see why it was that Police thought they should arrest Mr Wright over the cigarette, when a court attendance notice could have been issued. He describes Mr Wright's actions towards the police officer as a "head butt" and that while there was no injury to the officer it was "serious enough" against a police officer in the execution of their duty.
Mr Wright relied on a report of Dr Bettesworth, psychiatrist, in the appeal. Dr Bettesworth recorded that when Mr Wright was handcuffed he "lost it". Dr Bettesworth's opinion was that Mr Wright had post-traumatic stress disorder and is a psychologically damaged man and that was why he "overreacted". In dealing with the matter under section 32, the Judge said he thought the police were "a bit heavy handed" in arresting and handcuffing Mr Wright and he could understand, but did not condone, Mr Wright's head butting of the officer.
Mr Wright said that he accepted that it was a head butt but said that his forehead came into contact with the police officer's cap, not the officer's skin. He said that he did not apply force. He said that any touching of the officer's uniform was serious and was an assault.
Mr Wright agreed that there was no mention in the District Court to only touching the officer's cap and that his legal representative did not make that argument. He said he had accepted that it was a head butt and described it as "disgraceful". Mr Wright did not agree that he had downplayed the seriousness of the assault.
Mr Wright disagreed that he sought to blame police for his actions and stated that he regretted his behaviour.
Mr Wright said he notified his professional body, the Law Society of NSW, about these charges and the outcome of the criminal proceedings. The Law Society advised Mr Wright it would take no action against him.
Mr Wright said he is "deeply embarrassed" about his conduct. He said he was experiencing unmanaged PTSD at the time and was self-medicating with alcohol. He said that following this incident he did not consume alcohol for two years.
Mr Wright points out that the 2009 incident occurred some 14 years ago and "arose out of difficulties associated with [his] naval service at a time when [his] mental health was not stable".

COPS Entry

In 2011 an anonymous person made a report to Crimestoppers Police about Mr Wright. The caller said Mr Wright had said "how dare the police have the legal power and walk around with guns" and then said "I want to kill a police man" and that he said has the urge to kill and is good at it.

Mr Wright's account

Mr Wright said that in late June 2011 two NSW Police detectives came to his house and asked him whether he had said that he "wanted to kill a policeman with a weapon". Mr Wright denied ever making such a statement. He explained to Police that he was going through a messy divorce and perhaps it might have been one of his ex-wife's friends calling anonymously and making false allegations. Police asked Mr Wright about his mental health and he said his mental health was "currently managed and was not an issue".
Mr Wright stated he believed that such a false report was made in order to advance his ex-wife's position in family law proceedings including over custody of the two children.

COPS Entry

The Respondent relies on a COPS Entry dated 12 August 2011 which outlies concerns Mr Wright held about a client for whom he had ceased to act. Mr Wright told Police the client had threatened to "come around and tell your wife what a cunt bastard you are". That client made a complaint about Mr Wright to the Legal Services Commissioner. The Legal Services Commissioner found there was no issues to answer. Mr Wright told Police he was concerned for his own welfare as he believed the client was involved in organised crime. According to the COPS record Mr Wright told Police he was too depressed to come into the police station that weekend and would prefer to come in on Monday. He is alleged to have said that when he gets depressed he just needs a few days to work through it.

Mr Wright's evidence

Mr Wright said that he had commenced debt recovery proceedings against the former client ('client') of his legal practice who had not paid their bill. He was approached by that client in public and the client struck him across the head. He said this was an unprovoked attack. He experienced concussion. Mr Wright notified Police and the client was charged and convicted.
Following the report to Police, Mr Wright said he was contacted by a person identifying themselves as a social worker. He agrees he may have communicated to the social worker that he did not feel positive about the incident or other similar sentiment.
Mr Wright takes exception to Police now using these comments against him in these proceedings, particularly in circumstances where the writer of the comments has not been made available.

COPS Entry

A COPS entry records that on 11 August 2022 Police stopped Mr Wright for random testing as he drove into a petrol station. Mr Wright is described in the entry as immediately defensive and that he claimed Police had no authority to interact with him. Mr Wright filmed the interaction.

Mr Wright's evidence

Mr Wright said he was approached by Senior Constable Heron from the Blue Mountains Highway Patrol when he stopped for petrol. SC Heron said he was conducting random roadside testing. Mr Wright said he was concerned that SC Heron had other concerns as SC Heron was not wearing a yellow safety bib and as Mr Wright understood it, SC Heron required reasonable cause to pull him over for a random breath test. Mr Wright began video recording SC Heron on his mobile phone. Mr Wright explained that he was attempting to note the date and context for the recording and that SC Heron was asking for his driver licence. Mr Wright observed SC Heron as "highly aggressive" by this stage. Mr Wright handed the officer his licence. He also observed that the breath test machine had not been prepared before he submitted to the breath test.
Mr Wright made a complaint to NSW Police about SC Heron's conduct. The Response he received from a detective from the Greater Western Sydney Sector Traffic and Highway Patrol Command was that he was satisfied SC Heron had acted lawfully and in accordance with his duties.
Mr Mattson put to Mr Wright that Senior Constable Heron's manner was not "highly aggressive". Mr Wright said Senior Constable Heron was "aggressive". He said that the Senior Constable slammed the door when he got out of the vehicle and walked fast towards him. He said this behaviour and also the fact the Senior Constable was in an unmarked car led him to think he was in a "sting". He was concerned that the officer thought something else was happening, such as that Mr Wright was committing a crime. Mr Wright said he chose to video the officer and that he thought he was a little bit strange. Mr Wright rejected a suggestion he was not co-operating properly with the Senior Constable.
Records from Dr Marsham, Mr Wright's GP, show that Mr Wright saw Dr Marsham three days after the interaction with SC Heron. Dr Marsham records that the incident "impacted [Mr Wright's] PTSD significantly".
Mr Wright said after the officer left he was shaking and he parked his car in the service station so he could settle down before he drove away. He went to the police station but no one answered. He spoke to someone at Springwood police station and made a short report.

Body worn video (BWV)

The parties were content for me to view the body-worn video of the interaction with SC Heron without doing so during the hearing. I draw some conclusions from the video under the hearing 'Consideration' below.

Traffic record

Mr Mattson took Mr Wright to the traffic record provided by the Respondent. Over the period of 1992 to 2021 Mr Wright had the following infringements:

ten speeding fines
three instances of drive using a mobile phone
five instances of disobeying traffic lights or arrows
two instances of disobeying signs or rules

Mr Wright received four demerit points warning letters. Mr Mattson, for the Respondent, suggested to Mr Wright that following those letters Mr Wright did not change his driving behaviour. Mr Wright said he accepted that.
It appears that Mr Wright's driver licence was suspended for three months in early 2022.

Evidence of Mr Wright

Mr Wright said that his mental health problems arose from the dangerous situations he encountered during 22 years of service in the Australian Defence Force.
Mr Wright submitted the report of his treating psychiatrist, Dr Duncan Wallace, dated 17 August 2021 with his 2021 firearms licence application. As outlined above under the heading 'Background and procedural history', the Adjudicator relied on aspects of that report to refuse the application for a firearms licence.
Mr Wright rejected some aspects of Dr Wallace's report. He did not agree with the diagnosis of Alcohol Abuse and states that in the past his consumption of alcohol "occasionally was in excess" but he had not reported alcohol abuse to Dr Wallace. His liver and kidney function was tested at the time and was found to be fine.
Mr Wright stated there were instances in the past, when under stress, that he drank to excess. This occurred at a time of a significant bereavement and after that when he returned from combat duties and his mental health was "largely unmanaged". He also noted that at the height of the COVID-19 pandemic his drinking increased, but in his view was not excessive.
Mr Wright observed that he receives a military pension as he is entitled to that pension because of his length of service. He also receives another Veteran's Affairs pension due to various physical injuries he sustained as well as PTSD. He notes that the Department has not determined that Mr Wright has Alcohol Abuse Disorder for the purposes of his pension entitlements.
Mr Wright disputed that he had deviated from his treatment by reducing the dose of citalopram from 40mg daily to 20mg. He said that in about 2012 his general practitioner advised Mr Wright that he should try to reduce the dose "at every opportunity" and increase it again if he felt unwell. Following that discussion, Mr Wright would take between 40mg and 20mg depending on his state at the time. Mr Wright also disputes that he ever contemplated suicide.
Following the second decision of the Commissioner to refuse a firearms licence on 26 October 2021, Mr Wright made a complaint to the Health Care Complaints Commission ('HCCC') about Dr Wallace. In this complaint, Mr Wright stated that: 1. He never reported alcohol abuse to Dr Wallace 2. He never told Dr Wallace that he was suicidal in 2008 3. Dr Wallace "exaggerated" his symptoms in his report for the firearms application 4. He informed Dr Wallace that he had changed his medication in consultation with his GP, Dr Marsham.

Written report dated 12 April 2023

Mr Wright relied on a report of Dr Parmegiani, consultant and forensic psychiatrist, dated 12 April 2023. Dr Parmegiani saw Mr Wright for approximately one and half hours and prepared a report for the purpose of this proceeding. Dr Parmegiani was provided with a number of documents including the reports of consultant psychiatrists Dr Wallace, dated 17 August 2021, and Dr Frukacz, dated 27 June 2022 and 8 March 2023, as well as the HCCC complaint and the court transcripts in respect of the 2009 charges.
Dr Parmegiani records that as at 12 April 2023, the date of his report: 1. Mr Wright was diagnosed with PTSD in 2009 by a psychiatrist, Dr Bettesworth and this was not long after the incident at Leichardt Oval. Dr Bettesworth also "proffered" diagnoses of major depression and alcohol use. 2. Between 2007 to 2009 Mr Wright experienced intrusive memories and mild flashbacks and nightmares relating to his deployments in the armed services. 3. Mr Wright said his PTSD symptoms began to fade in 2010 and had been fully resolved for at least the past ten years. 4. Mr Wright was commenced on the antidepressant Cipramil in 2009 and he continued to take that medication. Mr Wright reported that one of his general practitioners advised him to vary the dose between 40mg and 20mg per day, according to how he felt. From mid-2021 to the time of the report, Mr Wright had been taking 20mg of Cipramil per day. 5. Mr Wright was drinking alcohol regularly from 19 years of age, including six to seven beers on days off when on deployment. His alcohol use "decreased markedly" in 2003. After discharge from the Navy in 2007 he would drink three or four beers on a weekend and this continued over the last twelve years. He stopped drinking for two years after the incident at Leichardt Oval when he had consumed six or seven beers. Mr Wright stopped drinking altogether 12 months ago and that for the ten years prior to that he had limited his drinking to three or four beers once on a weekend.
Dr Parmegiani accepted that Mr Wright was diagnosed with PTSD in 2009. His assessment was that at no time did Mr Wright's alcohol consumption meet the DSM-5 classification for alcohol use disorder based on regular consumption of a maximum of four standard alcoholic drinks on a weekend. Dr Parmegiani stated that to his knowledge the incident in 2009 was the only time that Mr Wright had consumed alcohol excessively. Dr Parmegiani was not satisfied that Mr Wright had ever experienced an episode of major depressive disorder. He suspected any mood symptoms in 2009 might have accompanied Mr Wright's PTSD. Dr Parmegiani's opinion was that Mr Wright's PTSD symptoms had resolved fully by 2010 and since that time has not experienced PTSD symptoms or mood disturbance. He considered any PTSD or depression to have been in total remission for more than ten years. He observed that it would be reasonable to cease Cipramil but remarked that Mr Wright's decision to continue taking this medication showed his determination to avoid any possibility of experiencing symptoms in the future. He assessed the risk of relapse of symptoms to be "negligible".

Oral evidence of Dr Parmegiani

Under cross-examination Dr Parmegiani agreed that he had not been provided with the report of Dr Wallace, dated 7 December 2018. In that report Dr Wallace described Mr Wright at that time as consuming about 10 full strength beers about once per week. Dr Wallace also recorded that Mr Wright disclosed consuming cannabis "on about a dozen occasions in the last 8-9 years" and that he had used cocaine about twice per year since 2010.
Mr Mattson also took Dr Parmegiani to a letter of Dr Wallace, dated 23 March 2020. Dr Wallace stated in that letter that Mr Wright told him that he was having three standard drinks on Fridays, "ten plus" standard drinks a day on Saturdays and about five to six standard drinks on Sundays. Dr Wallace gave the opinion that Mr Wright's "alcohol abuse remained a significant problem". He said Mr Wright declined referral to an addiction medicine specialist.
Mr Mattson also referred Dr Parmegiani to a further letter from Dr Wallace, dated 24 August 2020. In that letter to Mr Wright's GP, Dr Wallace recorded that in the previous six months Mr Wallace's alcohol intake had "significantly worsened" and his sleep had become "problematic".
Notes made by Dr Bradley, general practitioner, on 13 January 2021, record Mr Wright as drinking alcohol only on the weekend and drinking six to seven standard drinks on a Saturday.
Dr Parmegiani agreed that if the above records were correct then his belief that Mr Wright consumed three to four standard drinks once per weekend for the last ten years was incorrect. He agreed that it appeared that Mr Wright had downplayed his drinking.
Dr Parmegiani explained that alcohol use can occur when a person has depression and sometimes excessive alcohol use can lead to depression. Dr Parmigiani said that alcohol does not have a negative impact on PTSD but can on a person who had major depressive disorder.
Mr Mattson took Dr Parmigiani to notes made by Dr Richard Lin, a general practitioner on 16 December 2018. Dr Lin records on that date that Mr Wright has a history of PTSD and still had nightmares once per month and that Dr Lin suggested a review by a psychiatrist. Mr Mattson questioned Dr Parmegiani about this. Dr Parmegiani responded that this was five years ago and the nightmares Mr Wright was experiencing in 2018 might be important if there were other symptoms of PTSD.
On review by Dr Wallace on 23 November 2018, Dr Wallace formed the initial impression that Mr Wright "probably has chronic PTSD with some depressive features". In a further letter from Dr Wallace, dated 28 June 2019, Dr Wallace described two recent incidents in which Mr Wright had been the victim of violence or aggression, once involving a physical fight on a sporting field and another involving a man approaching him in a very aggressive manner in a courtroom. Dr Wallace stated that as a result of these experiences he "thought [Mr Wright's] Major Depressive Disorder had significantly worsened".
Notes made by Dr Marsham, general practitioner, on 14 November 2022 record that the incident at the petrol station on 11 August 2022 "impacted his PTSD significanlylu [sic]".
In re-examination, Mr Smark, senior counsel for Mr Wright, took Dr Parmegiani to the conclusions in his report that the risk of relapse was "negligible" and that his history of treatment for a psychiatric condition "should not affect presently his capacity to responsibly possess firearms". Mr Smark asked Dr Parmegiani whether his opinion had now changed about those matters he had been taken to the further material about alcohol consumption and depressive or PTSD symptoms. Dr Parmegiani explained that stressful situations may cause symptoms such as a recurrence of memories but this was not necessarily be the full gamut of PTSD. It would need to be a very traumatic event such as a motor vehicle accident or being shot at that that might cause a new episode of PTSD. A person who had PTSD can have symptoms that resolve in full or symptoms that cannot be adequately controlled. Residual symptoms might occur but by themselves are not sufficient to lead to a diagnosis.
As to the issue of alcohol use, Dr Parmegiani said that some people consume alcohol above the guidelines and function adequately and do not encounter difficulties. Dr Parmegiani expressed his doubts about Mr Wright's diagnosis of major depression. Rather, he saw the mood symptoms in the context of PTSD and alcohol use.
Dr Parmegiani was asked whether the new information outlined above about Mr Wright's alcohol use and symptoms of PTSD would change his opinion. Dr Parmegiani said that he did not have the impression that Mr Wright had engaged in any irresponsible behaviour or was a threat to others since 2009. His opinion was that alcohol consumption did not per se negate the ability to use firearms. He said that the evidence about fluctuating use of alcohol and dysphoric mood did not change his assessment of risk. He regarded Mr Wright as clinically well regardless of his history of PTSD and excessive alcohol use.
Dr Parmegiani stated that at the time of his assessment of Mr Wright in April 2023, Mr Wright had no symptoms of PTSD and so it did not lead to a diagnosis of PTSD.

The 2019 firearms licence application

Mr Wright answered "no" to the following question on his 8 October 2019 firearms licence application: Have you in NSW or elsewhere: … d) Ever attempted suicide or self harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?
Mr Mattson put to Mr Wright that in the 12 months prior to lodging that application, Mr Wright had been seeing Dr Wallace, a consultant psychiatrist. There is a letter from Dr Wallace, dated 23 November 2018, explaining that Mr Wright was referred to Dr Wallace for an opinion and management of PTSD.
Mr Wright agreed that his answer on this application form was not true and correct "according to the strictness" of what was being put to him, despite saying his answers were true and correct on the form. Mr Wright explained that he had been on a mental health plan for many years and had never gone off it. He said he did not think of it that way and denied that he provided knowingly false information in the form. He agreed that he was seeing Dr Wallace and that he had been taking medication for PTSD for a long time. He thought he answered the question correctly in the circumstances. He had been treated for PTSD but did not feel like there was a problem with his mental health and so it did not stand out to him and he did not think of it when answering the question. He said he had been living with PTSD for so long and knew how to manage himself.
Mr Mattson took Mr Wallace to the report of Dr Wallace, dated 17 August 2021, which was the report written and submitted with Mr Wright's 2021 Firearms licence application. Mr Mattson put to Mr Wright that he only took issue with the content of this report once the Firearms Registry refused his firearms application.
Mr Wright could recall telling Dr Wallace that in 2007 and 2008 he had experienced a 'dark period' before he commenced anti-depressant medication. However, he denied telling Mr Wallace that at that time "he used to think of shooting himself" but never acted on these ideas. Mr Wright said he had never felt that way and did not tell Mr Wallace that. He explained that the relationship with Dr Wallace broke down after that.
Dr Wallace identifies that he diagnosed Mr Wright with Alcohol Abuse. Mr Wright denied that he had an alcohol addiction. He said that after 2009 he did not drink for approximately two years. He said that over the last five years his alcohol consumption had increased and decreased, and that during the Covid lockdown it had increased.
Mr Wright said he did not recall advising Dr Wallace on 20 March 2020 that he was concerned about the amount he had been drinking on holiday in the UK and that on return to Australia he was drinking three standard drinks on Fridays, ten plus standard drinks a day on Saturdays and five to six standard drinks on Sundays. Mr Wright agreed that he did drink on a Saturday after playing soccer.

Character evidence

Mr Wright relied on a number of character references: 1. Mr Ian Halpin explained in an undated letter that he met Mr Wright at a local aquatic and fitness centre. Mr Wright had provided him with private financial aid to further his professional career on the Australian Track Team. Mr Halpin described Mr Wright as generous and community minded. 2. Dr Medhat Guirgis, a consultant orthopaedic surgeon, provided an affidavit, dated 13 April 2023. Dr Guirgis said he had known Mr Wright personally and professionally for over 10 years. He described Mr Wright as a respectful and honest advocate who helps those less fortunate. 3. Mr Geoffrey Harrison, a barrister, in an affidavit dated 4 May 2023, said he had known Mr Wright for 15 years. He describes Mr Wright as a passionate advocate for his clients. Mr Harrison refers to the incident at Leichhardt Oval in 2009 and the charges issued to Mr Wright. He said Mr Wright told him he had consumed "too much alcohol" and that the extent of the assault was "touching a police officer's hat". He describes Mr Wright as a man of "the highest integrity" and that he could be entrusted with firearms.

Submissions on behalf of Mr Wright

Mr Smark submitted that his client's mental health was the heart of the Commissioner's concerns. He proceeded to address the following issues in submissions.

Driving history

Mr Smark argued that Mr Wright did not seek to minimise his driving record. Mr Wright has had 20 traffic infringements and held his licence for decades. Mr Smark said the pattern of traffic offences does not give a basis for any substantial concern about Mr Wright's character or concern that he cannot be trusted with firearms.

Criminal history and the 2009 incident

Mr Smark said that Mr Wright accepted the 2009 conduct was "highly wrong" and he is contrite. Mr Wright's account is that he struck the hat of the police officer rather than the forehead of the officer. Mr Wright called it a "head butt" and accepted it was serious and was conduct directed towards someone in uniform.
However, Mr Smark argued that Mr Wright does not display that character now. He got drunk, had an altercation with Police and entered a guilty plea and on appeal no conviction was recorded. He submitted that there was nothing that had the hallmarks of someone who poses a risk now if granted a firearms licence. He said while the incident was a serious matter, the nature of what occurred, the fact that there was no conviction and that it was isolated in nature and occurred many years ago should mean that it should not be an impediment to the grant of a firearms licence.

Traffic stop incident on 11 August 2022

Mr Smark observed a number of features of the interaction between SC Heron and Mr Wright. SC Heron did not say what he is performing is a "breath test", but just said "roadside testing". The interaction occurred when SC Heron has pulled up behind Mr Wright at the petrol station. Mr Wright was a bit surprised and wondered whether SC Heron thought he was stealing petrol. Mr Wright was defensive when he was asked to identify himself because he thought he might be accused and started videoing. Mr Smark said that Mr Wright was concerned about what occurred but complied with the requests made by SC Heron.
Mr Smark submitted that the traffic stop might have gone better but could have gone worse. He pointed out that Mr Wright made a complaint about it. He said there would be nothing in the interaction that would give the Tribunal concern about whether Mr Wright could be trusted with firearms and that the Tribunal should not give considerable weight to the incident. He submitted that there was no evidence on the BWV recording that Mr Wright had said that Police lacked authority to do what they were doing.

Mental health

Mr Smark described the high water mark of the Commissioner's case on the issue of Mr Wright's mental health as when Dr Wallace recorded in his 7 December 2018 report. Dr Wallace records that Mr Wright said around this time he was "crying for no reason, was experiencing nightmares about an explosion and had repeated suicidal ideas about shooting himself for as long as 2 years before commencing anti-depressant medication i.e. Citalopram". Mr Smark said that there was a factual question to be determined, that is, what did Mr Wright say to Dr Wallace about how he was in 2008. Mr Wright disputes the accuracy of this information and denied that he said he had suicidal ideas and thoughts of shooting himself.
Doctor Wallace in his 17 August 2021 report said that Mr Wright had not experienced suicidal ideas since he came under Dr Wallace's care in November 2018. Mr Smark submitted that the latest opinion of Dr Wallace should be given the most weight.
Mr Smark conceded that the history Dr Parmegiani had may have been incomplete. Mr Wright's alcohol use was recorded as greater in other medical documents. Mr Wright's experience of mood symptoms and stress was put to Dr Parmegiani and he was robustly of the view that there was no basis that Mr Wright would be irresponsible in the handling or use of firearms. He said that the Tribunal should accord weight to the opinion of Dr Parmegiani and it would assist the Tribunal to decide the mental health issue.
Mr Smark remarked that despite being the victim of violent incidents at a soccer match and in court, Mr Wright was not violent in response. He said Mr Wright was careful and conscious of history and continued to take medication beyond what was indicated for his condition. He had also reflected on his alcohol use.

2019 firearms licence application

Mr Wright answered "no" to the question about whether "in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness". Mr Smark submitted that at the time Mr Wright completed the form he had been on his existing medication for decades. He submitted that while the answer may not be right, the Tribunal would accept that Mr Wright had not knowingly been dishonest. Mr Wright didn't realise the right way to characterise the fact he had been on this medication for approximately twenty years.

Submissions on behalf of the Commissioner

Mr Mattson argued that a broader focus is required, beyond whether or not an applicant had a propensity for violence. Public confidence in the licensing system and fitness even if a person is not violent can be matters that could lead a decision-maker to hold that it is not in the public interest to grant a firearms licence.
Mr Mattson addressed each of the following issues.

Driving history

Mr Mattson submitted that in committing 20 driving offences over the period 1992 to 2021, Mr Wright demonstrates consistently unsafe conduct. There was no change to Mr Wright's behaviour despite receiving demerit point warning letters in 1998, 2000 (two letters), 2013, 2016 and 2021.
Mr Mattson referred the decision of Senior Member Montgomery in O'Brien v Commissioner of Police [2022] NSWCATAD 259 at [59]. In that case the Senior Member disagreed with the Applicant that is would be unfair to "compare a lack of compliance with traffic laws and the likelihood that he might adopt a similar view towards compliance with firearm legislation".

Criminal history and the 2009 incident

Mr Mattson argued that the incident in 2009 involved aggressive and poor behaviour toward Police and a serious assault on an officer doing his job.
Mr Mattson said that under questioning, Mr Wright could not recall aspects of the incident. He did not recall comments he is recorded in the COPS report as making to the effect that the police actions were a "fucking joke". He also did not recall feigning assaults by police. He referred to the fact that Mr Wright's friend, Mr Nicholas confirmed to Police that the allegation that police had assaulted Mr Wright was false and that Mr Wright had fallen to the ground himself (refer to the Facts Sheet).
Mr Mattson pointed out that the Police COPS record of the incident records that Mr Wright "headbutted" the police officer, "connecting with his forehead". He argues that a tap on the police officer's cap is different to a head butt and the court found that it was a serious assault. Mr Mattson contended that there was some downplaying by Mr Wright of the seriousness of his conduct.

Traffic stop incident on 11 August 2022

Mr Mattson suggested that Mr Wright was defensive in his interactions with SC Heron and showed a degree of being combative, unco-operative and resistant towards Police. He submitted that this behaviour is not consistent with that expected of firearms licence holders. He said it is concerning that in an ordinary interaction that Mr Wright was defensive.
Mr Wright's GP wrote three months later that the incident impacted on Mr Wright's PTSD. Mr Wright criticised the police officer and described him as "highly aggressive" and put in a complaint about him. Mr Mattson observed that firearms licence holders must co-operate with safe storage inspections and Police can arrive at any time to conduct inspections including plain clothes officers.

Mental health

Mr Mattson said that there was no reason not to accept Dr Wallace's reports as an accurate account of what was said. He noted that Dr Wallace had produced his notes and reports under summons in these proceedings.
Mr Mattson contended that Mr Wright had not provided a full history to Dr Parmegiani. Dr Parmegiani also did not canvas his views with Dr Wallace. Mr Mattson referred to Dr Wallace's report prepared for the purposes of Mr Wright's 2021 firearms licence application and Dr Wallace's opinion that: …"Mr Wright's mental disorders may relapse at some time in the future if he were to cease treatment and/or resume alcohol abuse. If Mr Wright was to experience a relapse of any of his mental disorders, then the level of risk regarding his possession and use of firearms could change significantly and require reassessment."

2019 firearms licence application

Mr Mattson said that the incorrect answer on this form showed a failure by Mr Wright to disclose the treatment he received. He suggested that Mr Wright himself made a judgement that he had it under control and that the answer was "no".
Mr Mattson referred to the decision of Senior Member Dunn in the case of Umbaca v Commissioner of Police [2021] NSWCATAD 380 at [92]-[96]. In considering whether the issue of a licence would be contrary to the public interest, the Tribunal said the public interest included "ensuring the integrity of the integrated licensing and registration scheme for all firearms" as referred to in the objects of the Firearms Act 1996. The Tribunal said: The integrity of the licensing scheme depends on applicants providing true and correct information in their firearms licence applications, which is the reasoning behind s 70 of the Firearms Act: Kogias v Commissioner of Police [202] NSWCATAD 297 at [114].
Mr Mattson argued that Mr Wright knew he was being treated for a mental illness. He had been referred for treatment by Dr Wallace in the 12 months prior to completing the form. He suggested that Mr Wright had made a judgment that he was managing his condition and so it was appropriate to assume the answer was "no".
Mr Mattson also referred to the case of Zulumovski v Commissioner of Police, NSW Police Force [2023] NSWCATAD 20. In that case, the Commissioner held a number of concerns about the applicant, one of which was the failure of the applicant to provide accurate information in his licence application showing that he had previously been known by another name. He had previously held a firearms licence under a former name and steps had been taken to cancel it on the basis he was not an active member of an approved pistol club and therefore did not have a genuine reason to possess a target pistol licence.
Senior Member Montgomery considered the applicant's incorrect answers about being previously known by a different name and previously holding a firearms licence to be of "great significance" (at [82]). He cited the following passage in Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240 at [53]: The system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act.
Senior Member Montgomery referred to the applicant's argument that he did not declare the relevant information on the licence application because he overlooked it. The Senior Member said if accepted, that leads to "the inevitable conclusion that the Applicant did not regard the application as a significant document".
Mr Mattson submitted that Mr Wright was unnecessarily difficult in his interaction with Senior Constable Heron in August 2022. He argued that SC Heron was not aggressive or intimidating as asserted by Mr Wright. He said Mr Wright had a very negative reaction to the incident on the day and also medically and he was unfairly critical of SC Heron. He submitted this approach was not what is expected of a firearms licence holder.
In Zulumovski Senior Member Montgomery also observed that traffic and firearms laws are both designed to ensure public safety, and in that case the applicant's "extensive" driving record "suggests a lack of responsibility in adherence to the law and a disregard for public safety" (refer to [62] and [81]).

The 2009 incident at Leichhardt Oval

I find on the evidence that Mr Wright was heavily intoxicated on 5 June 2009. I am satisfied that Mr Wright pulled away and tried to walk into the crowd when under arrest. I also find that Mr Wright did head butt a police officer. No injuries were sustained but I accept the comments of the District Court that Mr Wright's actions were "serious enough" against a police officer in the execution of their duty. I am unable to reach a finding on the evidence as to whether Mr Wright's head connected with the officer's forehead or cap.
I am concerned and do find that Mr Wright falsely claimed a number of times that he was assaulted by Police. I reject Mr Wright's assertion that he accidentally touched the police officer's hat.
I accept the opinion of Dr Bettesworth's opinion was that Mr Wright overreacted to Police because of his post-traumatic stress disorder.

2011 Crimestoppers report

I make no findings about the anonymous Crimestoppers report in 2011 in which the caller alleged Mr Wright said he wanted to kill a policeman. There is no way of testing or establishing the truth of that report and I give it no weight.

Contact with Police on 12 August 2011

I make no findings in relation to any statement Mr Wright made about being too depressed to come into the police station to make a report about an ex-client and when he gets depressed he needs a couple of days to work through it. The context of such a statement is not fully explained and it cannot be a basis for any finding about Mr Wright's mental health.

Traffic stop incident on 11 August 2022

The parties were content for me to view the recording from the body-worn video from SC Heron following the hearing. I did so and I make the following factual findings about the interaction I viewed on the video. 1. SC Heron stopped his vehicle behind Mr Wright at the petrol station and approached to Mr Wright for the purpose of "roadside testing" and asked to see Mr Wright's driver licence. 2. Mr Wright asked what he was bring pulled over for or accused of. SC Heron asked whether Mr Wright was aware that Police stop people at random for "roadside testing". Mr Wright said he understood Police to need to have "reasonable cause". 3. At that point Mr Wright commences filming SC Heron on his mobile phone and SC Heron gives a sigh. When Mr Wright asks SC Heron what the date is, SC Heron repeats "licence, please". 4. Mr Wright appears at this point to still be unclear as to why SC Heron has stopped him. SC Heron raises his voice slightly are explains again it is for "roadside testing" and that he has asked Mr Wright "four times now to produce [his] licence" and added that if Mr Wright failed to produce his licence he may be committing an offence. 5. Mr Wright states on his recording that the police officer has shown "a certain level of" intimidation and aggression. He hands his licence to SC Heron and describes him on the recording as "this very aggressive officer". 6. SC Heron continues speaking with a slightly raised voice and refers to Mr Wright by his name and address a number of times. 7. At this point SC Heron asks Mr Wright to submit to "an alcohol test" and places an orange testing unit near Mr Wright's face. Mr Wright again asks SC Heron if he suspects Mr Wright to be committing any crime. SC Heron does not respond. 8. Mr Wright blows into the testing device. He is concerned the unit was not ready until a tube was placed into it and he makes mention that he is putting any rubbish into the bin. 9. SC Heron returns to his car to do some checks and then returns Mr Wright's licence to him. When Mr Wright asked for the name of SC Heron's supervisor, SC Heron says "good bye" and does not respond to this question.
SC Heron appeared to become frustrated by the interaction with Mr Wright. Mr Wright had some misunderstandings about why he was being pulled over. Rather than explaining further, SC Heron took a more dismissive approach.
Mr Wright did comply with the request of SC Heron to produce his licence and he did submit to alcohol testing. He perceived SC Heron to be aggressive in his manner.
It is not the role of this Tribunal to make any findings or recommendations about how NSW Police conduct their duties. I am satisfied that Mr Wright had a misunderstanding about the purpose of the stop. I accept he suspected that the officer thought he had committed a criminal offence. This misunderstanding was not alleviated by the way the officer conducted himself. I did not observe Mr Wright to be aggressive or uncooperative with the officer, rather he questioned why he was stopped and challenged the officer about his actions.

Driving record

I find that Mr Wright has a poor traffic record. He had 21 infringements in a period of 29 years. Mr Wright did not change his behaviour after receiving demerit point warning letters. I consider the offences to be low level driving offences. There is one offence of exceeding the speed limit by 20 to 30 kilometres in 2016.

Mental health

I am satisfied that Mr Wright has a well-established diagnosis of PTSD. I accept the opinion of Dr Bettesworth that active symptoms of PTSD occurred in the period 2007 to 2009 but had begun to fade by 2010. I accept that residual symptoms occurred from time to time, based on the notes of Dr Lin, general practitioner, on 16 December 2018.
I find that Mr Wright downplayed his alcohol use when consulting Dr Parmegiani in 2023. I find that on occasion Mr Wright has consumed alcohol to excess. I am persuaded that the level of alcohol use recorded by Dr Wallace is correct, including that 2020 Mr Wright would consume three standard drinks on Fridays, "ten plus" standard drinks a day on Saturdays and about five to six standard drinks on Sundays. I accept that as at 24 August 2020 Mr Wright's alcohol use was a problem. I accept the records of Dr Bradley, general practitioner, on 13 January 2021, that Mr Wright had reduced alcohol intake to six to seven standard drinks on a Saturday. On the basis of Mr Wright's own evidence, his consumption of alcohol also increased during the period of the COVID pandemic.
I am also satisfied that Mr Wright has experienced mood symptoms. I accept Mr Wright's evidence that he experienced a 'dark period' in 2007 and 2008 and that he reported this later to Dr Wallace. I accept that Mr Wright has consistently taken the antidepressant citalopram (Cipramil) from 2009 and has varied the dose between 20mg and 40mg per day depending on how he was feeling in consultation with his GP rather than his psychiatrist. I accept the evidence of Dr Parmegiani that continuation on this medication is evidence of Mr Wright's desire to avoid experiencing symptoms in the future.
I am unable to conclude on the basis of the evidence before me whether or not the diagnostic criterion for Alcohol Abuse Disorder or Major Depression have been met. I am also unable on the evidence before me to reach a factual finding as to whether Mr Wright had in the past experienced suicidal thoughts. The comments by Dr Wallace about that were clearly contested by Mr Wright. However, I agree with the initial assessment of Dr Wallace on 23 November 2018, Mr Wright experienced chronic PTSD with some depressive features. I accept the evidence of Dr Parmegiani that alcohol use can occur when a person has depression or can lead to depression. I also accept Dr Parmegiani's opinion that Mr Wright has experienced mood symptoms in the context of PTSD and alcohol use.
I accept the opinion recorded on 14 November 2022 by Dr Marsham, general practitioner, that the interaction with SC Heron at the petrol station on 11 August 2022 had a significant impact on Mr Wright's PTSD. I also accept Dr Parmegiani's evidence that a recurrence of symptoms does not necessarily indicate a relapse of PTSD.
I accept that Mr Wright was the victim of violence or aggression in two incidents described in the letter of Dr Wallace, dated 28 June 2019, one involving a physical fight on a sporting field and another involving a man approaching him in a very aggressive manner in a courtroom. I accept these incidents had a negative effect on Mr Wright's mental health.
I find on the basis of the opinion of Dr Parmegiani given at the hearing as well as the opinion of Dr Wallace in the report of 17 August 2021 that Mr Wright's PTSD is in remission.

2019 Firearms licence application

I find that Mr Wright incorrectly answered "no" to the question on the 8 October 2019 firearms licence application about whether he had been referred or treated for "alcoholism, drug dependence, or a mental or nervous disorder or illness" in the past 12 months. Mr Wright had been referred by his GP to Dr Wallace for an opinion and management of his PTSD in that period.
I do not conclude that Mr Wright provided incorrect information he "knew" to be false as I accept in Mr Wright's mind he had been treated for PTSD and taking medication for a long period of time.

Public interest

The Respondent's case is that Mr Wright should not be granted a firearms licence because it would be contrary to the public interest: refer to section 11(7) of the Firearms Act 1996.
There have been a series of cases discussing the meaning of the public interest. The public interest is a broad concept and the discretion to refuse to issue a firearms licence in subsection 11(7) of the Firearms Act 1996 operates to incorporate issues beyond character: Commissioner of Police v Toleafoa [1999] NSWCATAP 9 at [25]. Considerations can include 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.
There is a public interest in law-abiding farmers and graziers having access to long arms to control vermin and feral pests in order protect the environment and primary industry: refer to Romanos v Commissioner of Police, New South Police Force [2019] NSWCATAD 272 at [54]-[55].
It is useful to return to the underlying principles of the Firearms Act 1996, which include that firearm possession and use is a privilege "conditional on the overriding need to ensure public safety" and to improve public safety by "imposing strict controls on the possession and use of firearms" and "promoting the safe and responsible storage and use of firearms": refer to subsection 3(1).
I observe that there is a discretion in subsection 11(7) of the Firearms Act 1996: the Commissioner "may" refuse to issue a firearms licence is she considers to do so would be contrary to the public interest. The exercise of the discretion must be in such a way as to promote the principles and objects of the Firearms Act 1996, that is to ensure public safety.
The concerns that I have from the evidence before me and factual findings I have made are as follows: 1. Mr Wright downplayed his alcohol use to Dr Parmegiani, particularly his level of alcohol use in the period 2018 to 2021. His drinking was problematic in 2020. 2. Mr Wright has experienced mood symptoms in the context of PTSD and alcohol use but he has continued taking anti-depressant medication under the supervision of his GP. 3. Mr Wright experienced residual symptoms of PTSD in 2018 but he does not meet the criteria for a relapse of PTSD. 4. Mr Wright gave an incorrect answer on the 8 October 2019 firearms licence application form by indicating "no" to the question about whether he had been referred or treated for "alcoholism, drug dependence, or a mental or nervous disorder or illness" in the past 12 months. 5. Mr Wright has a poor driving history and continued receiving infringements despite receipt of demit point warning letters. 6. Mr Wright has had negative interactions with Police. I do not place any considerable weight on the 2009 incident as that occurred prior to Mr Wright receiving a diagnosis of PTSD from a psychiatrist, Dr Bettesworth and commencing on medication. The interaction with SC Heron in 2022 had an impact on Mr Wright's PTSD symptoms.
I had the benefit of hearing the oral evidence of Dr Parmegiani. The key part of that evidence was Dr Parmegiani's opinion taking into account the evidence that came out at hearing about Mr Wright's alcohol use and symptoms of PTSD. Dr Parmegiani expressed his opinion in light of that further evidence and said he did not have the impression that Mr Wright had engaged in any irresponsible behaviour or was a threat to others since 2009.
Whether or not Mr Wright has engaged in any irresponsible behaviour or was a threat to others is not the legal test that I must consider. I agree that the issue of mental health is key to this case. In weighing up whether or not, standing in the shoes of the Commissioner, it would be contrary to the public interest for Mr Wright to be issued with a firearms licence, an important consideration is the safety of the public and any risk arising from the concerns described at [150].
Previous cases have addressed the question of how the Tribunal is to assess risk. In Ward v Commissioner of Police, New South Police Service [2000] NSWADT 28 where Deputy President Hennessy said in the context of the expression "fit and proper person" in the Firearms Act 1996: The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.
In Webb v Commissioner of Police New South Wales Police [2004] NSWADT 110 Judicial Member Montgomery said: The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr Webb's licence is reinstated. In determining this issue it is my view that it is necessary to adopt a balanced view of 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.
According to Martin v Commissioner of Police, New South Police Force [2017] NSWCATAD 97 at [64]-[66], the Tribunal should approach the question of risk in a "nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety".
Deputy President Hennessy addressed the comments she made in Ward in the case of AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5, stating the phrase "virtually no risk" "should not be understood as a judicial gloss" on the plain meaning of the statute and the decision-maker should apply the relevant test by "exercising a judgement based on all the evidence": [8] and [10].
The facts of AML were that the applicant's firearms licence was revoked because of a suicide attempt by overdose: at [1]. AML had been treated with an anti-depressant, Zoloft and then Effexor and at times had decreased the dose to see whether he could function without it. He found he could not and would remain on medication "for the foreseeable future" (refer to [14]). In that case Deputy President Hennessy stated that "both effective treatment and a lengthy period of stability are relevant they are not mandatory" at [23].
The expert evidence of Dr Parmegiani was recent. He had assessed Mr Wright for one and a half hours. His evidence was tested at hearing and he conceded that he had not been provided with accurate information by Mr Wright about his alcohol consumption. The evidence about the recurrence of PTSD symptoms was also put squarely to him.
In response to that further evidence, Dr Parmegiani's opinion was that his assessment of risk did not change in the face of evidence about fluctuating use of alcohol and dysphoric mood. This stands in direct contrast with the opinion of Dr Wallace on 17 August 2021 that there is a risk of relapse of Mr Wright's mental health conditions if he was to cease treatment or resume consumption of alcohol and if this occurred the level of risk if Mr Wright had possession and use of firearms "could change significantly and require reassessment".
It is of course, difficult to assess the likelihood of relapse of any mental health conditions. It should be noted that both Dr Parmegiani in April 2023 and Dr Wallace in August 2021 concluded that Mr Wright was currently well in terms of his mental health. Dr Parmegiani specifically addressed this issue and stated that he regarded Mr Wright as clinically well regardless of his history of PTSD and excessive alcohol use. Dr Parmegiani stood by his assessment that Mr Wright did was not experiencing any relapse of PTSD. He also gave expert evidence that alcohol use does not have a negative impact on PTSD.
It strikes me that Mr Wright exhibited a degree of self-control in circumstances where he had a difficult interaction with Police in 2022. He was also confronted with challenging circumstances when the victim of violence or aggression in two incidents described in the letter of Dr Wallace, dated 28 June 2019, on a sporting field and in a courtroom. These incidents had a negative effect on Mr Wright's mental health.
I considered the case of Kavanagh v Commissioner of Police [2020] NSWCATAD 324, a decision of Senior Member Walker. In that case the Commissioner raised concerns about "Mr Kavanagh's history of diagnoses and treatment for problems including anxiety and alcohol": [67]. The Tribunal in that case was left with a "mixed picture" ([86]) and held that without a "recent, comprehensive psychiatric evaluation, with particular attention to alcohol use and factors influencing it and reaching an acceptable conclusion as regards risk, the current state of the evidence does not permit a clear assessment of risk other than to say that the applicant's history presents an appreciable risk to public safety": [94].
I concluded that I should accept the opinion of Dr Parmegiani that Mr Wright is clinically well and that the risk of relapse to be "negligible". I cannot therefore be satisfied on the evidence before me on the question of mental health that there would be a risk to public safety if Mr Wright was issued with a firearms licence.
The Respondent also relies on the incorrect answer on the 2019 firearms licence application as evidence that the issue of a licence to Mr Wright would be contrary to the public interest. As the Tribunal held in Kogias v Commissioner of Police [2020] NSWCATAD 297 at [114]: The functioning of a proper system of firearms licensing is one of the stated objectives of the Firearms Act, which depends on applicants providing true and correct information in a comprehensible manner. That is the reasoning behind s 70.
In Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240 at [53] the Tribunal said: The system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act.
However, as the Tribunal said in Pendrick v Commissioner of Police, NSW Police Force (No 2) [2022] NSWCATAD 27 at [70] after discussing a series of previous cases: These decisions establish that the making of false or misleading statements on an application form may, in some circumstances, be a factor indicating that it is in the public interest for a person not to hold a firearms licence. However, that will depend upon the circumstances of the case. Where a statement is false or misleading, the question of whether the applicant intended to mislead is relevant.
I accept that Mr Wright, having taken the same medication since 2009, did not intend to mislead by answering the question in the negative.
I did not consider that the character references as summarised at [95] provided any assistance in weighing up whether Mr Wright should be granted a licence as they did not squarely address Mr Wright's mental health, alcohol use, driving history or the incidents that occurred after 2009.
The Commissioner relied on Mr Wright's traffic history. It is the case that traffic laws, like firearms laws, are designed to ensuring public safety. An "extensive" driving record "suggests a lack of responsibility in adherence to the law and a disregard for public safety": Zulumovski v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 20 at [62] and [81].
Mr Wright's poor driving record is a relevant consideration. However, I do not consider it to be of a relatively low level of offending and not one which leads me to a finding that he holds a disregard for public safety.
I considered the whole of the evidence, including Mr Wright's conduct, the various incidents set out above, his driving history, mental health and alcohol use and concluded that on the evidence before me I could not be satisfied that Mr Wright should be refused a firearms licence on the basis that the issue of such a licence would be contrary to the public interest
Accordingly, the decision under review is set aside.

ORDERS 1. The decision of the Commissioner of Police to refuse Mr Wright's application for a Category B firearms licence is set aside. 2. A Category B firearms licence is to be issued to Mr Wright.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 13 August 2024

At a glance

Court

Decision date

Source

Judgment (44 paragraphs)

Parties

Cases Cited (11)