Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Aloschi v Commissioner of Police [2021] NSWCATAD 64 Hearing dates: 29 January 2021 Date of orders: 16 March 2021 Decision date: 16 March 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: Naida Isenberg, Senior Member Decision: The decision under review is set aside. Catchwords: LICENSING – firearms – revocation – mental health issues – public interest - compliance with licence conditions Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Firearms Regulation 2006 Cases Cited: Allan v The Commissioner of Police [2008] NSWADT 230 AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117 McDonald v Director General of Social Security (1984) 1FCR 353 Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 Shi v Migration Agents Registration Authority [2008] HCA 31. Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 Texts Cited: None cited Category: Principal judgment Parties: Sam Carlo Aloschi (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Hartmann & Associates (Applicant) Maddocks (Respondent) File Number(s): 2020/00283106 Publication restriction: Nil REASONS FOR DECISION Background 1. Except for period of about 3 years between 2006 and 2009, the Applicant, Sam Carlo Aloschi, has, since 22 May 2001, been continuously licensed to possess and use firearms. His most recent firearms licence (AB) was issued on 3 December 2019 and was due to expire on 3 December 2024. 2. On 3 August 2020, following a notification pursuant to s 79 of the Firearms Act 2013 (the Act) by Dr Ahmad Mir of Castle Hill Medical Center, a suspension notice was served on the Applicant and his 8 firearms and 2 boxes of ammunition were seized. On the same day, a Notice of Revocation was issued by the Firearms Registry, on the basis of information having been received that "reveals [the Applicant is] suffering from depression and has recently suffered a mental health episode which involved [the Applicant] having suicidal thoughts of shooting [himself]". The decision to revoke the Applicant's firearms licence was affirmed on internal review and the Applicant now seeks review by this Tribunal. Relevant legislation 1. The general principles of the Act are set out in s 3, relevantly: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and ... (2) The objects of this Act are, relevantly, as follows: (a) – (c) (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms , (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) ... 1. Section 79(1) of the Act provides that if a health professional is of the opinion that a person to whom the health professional has been providing professional services may pose a threat to public safety (or a threat to the person's own safety) if in possession of a firearm, the health professional may inform the Commissioner of that opinion. 2. Section 19 of the Act provides that a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose and to such other conditions as may be prescribed by the regulations; and s 24(2)(iii) provides that a licence may be revoked if the licensee contravenes any condition of the licence. 3. Section 24(2)(ii) of the Act provides that a licence may be revoked if the licensee contravenes any provision of the Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention. 4. Clause 31 of the Regulation provides that a licence that is issued for the genuine reason of recreational hunting/vermin control is subject to the condition that the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members). Similarly, cl 108(1) of the Regulation provides that the holder of a licence issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club must be a member of at least one approved hunting club and must, during each compliance period for such a club of which the person is a member, participate in no less than 2 hunting club events, although cl 108(2) provides that the clause only applies where membership of an approved hunting club is the sole ground on which the licensee has established the genuine reason of recreational hunting/vermin control. 5. Section 24(2)(d) of the Act provides that a licence may be revoked for any other reason prescribed by the regulations. Clause 20 the Firearms Regulation 2017 (Regulation) provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence. 6. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]- [34]. Under s 28(2) of CAT Act the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Evidence 1. The Applicant provided a statement from his sister, Carlene Trainor and his partner, Jane Bryant and provided a reference from Anthony Ciappara. The Applicant provided a copy of a letter dated 28 January 2021 from Amanda Thompson, the owner of a property at Nundle, and a letter of authority (Authority) for hunting/vermin control by Reginald Larkin of Ben Bullen dated 7 September 2009. He also provided a report from his General Practitioner, Dr Paul Humphery dated 20 August 2020, and reports dated 4 August 2020 and 3 September 2020 from a psychiatrist, Dr Assad Saboor, whose clinical notes were also available. The Applicant provided a report from his treating psychiatrist, Dr Varad Kumar dated 25 November 2020 and a report dated 13 December 2020 by psychologist, Michael Kruger-Davis. 2. The Applicant gave evidence and was cross-examined, as was his sister. Oral evidence was also given by Dr Mir, Dr Kumar and Mr Kruger-Davis. 3. In addition to the s 58 documents, the Respondent relied on a statement of Sergeant Steven Balfour dated 23 December 2020 and a statement of Senior Constable Kylie Kalaitzoglou dated 3 January 2021. What gave rise to the revocation? 1. On 3 August 2020 the Applicant and his sister attended Dr Mir at about 6.30 pm. Following the consultation, at about 7.35 pm, Dr Mir emailed Police that: [The Applicant] told me that he was suicidal this morning and thinks to kill himself with his guns... He was seen with his sister and told his sister that will give both keys of guns lock (sic) to her. Unfortunately, he could not be admitted in private hospital and he refused to go to Westmead hospital. 1. In the accompanying "Disclosure of Information by Health Professionals" form Dr Mir wrote, in response to the question "Describe the circumstances that led you to believe that the person may pose a threat if in possession of a firearm/prohibited weapon. Include relevant conversation, observations, effect of medical condition or treatment on person's capacity etc.": He has symptoms of depression and had an argument with his current Partner. He came with his sister tonight. He had suicidal thoughts and when I asked him about the plans he told me that he wanted to shoot himself. 1. At 10.45pm that night, SC Kalaitzoglou and other Police attended the Applicant's premises to undertake a welfare check. According to SC Kalaitzoglou the Applicant told them he had recently separated from his wife and that had caused him to feel depressed. He said that he had been prescribed antidepressants, and that he had been given a referral for him to attend the Hills Clinic first thing the following day. SC Kalaitzoglou noted that there was no cause to schedule [the Applicant] as he had already sought medical attention, been prescribed medication, and had a plan to attend the Hills Clinic the next day. SC Kalaitzoglou had contacted the Applicant's sister and confirmed that she held both sets of keys to the Applicant's gun safe. 2. On 4 August 2020 at approximately 7:30am, Licensing Police attended the Applicant's residence after reviewing the report and speaking to officers who had undertaken the welfare check. Sgt Balfour wrote that the Applicant admitted that he had made some comments to Dr Mir the previous day about wanting to kill himself and that if he did, he would shoot himself. The Applicant had added that it has all been a misunderstanding and said: I didn't say I was going to kill myself, I said "if I was going to kill myself, I would likely shoot myself". I'm not in a good place right now, I've recently separated from my wife. 1. Police formed the view that, based on the information that had been received, and their conversation with the Applicant, it was appropriate to suspend the Applicant's firearms licence. The licence was subsequently revoked. Evidence in relation to the Applicant's mental health Applicant's evidence 1. It was the Applicant's evidence that he had been shocked when, in April 2020, he was unexpectedly made redundant from his very responsible position as 'a captain of industry'. Although he 'was in a bit of a state', he denied that he was suicidal, only 'nervous' and 'anxious'; he was 'rattled'. This, and his divorce were the reason he was seeking medical intervention. He said he had become withdrawn and he and his partner were thinking of separating. It was not long though, before he had a letter of offer for another responsible position, although, he said, it took some time to conclude negotiations. 2. He said that he had wanted to see his General Practitioner, Dr Humphery, but he was unable to get an appointment for about a week so, accompanied by his sister, he went to a 24/7 clinic where he saw Dr Mir. He said the doctor asked him a number of times about whether he had thoughts of self-harm and had kept 'probing and pushing' him, as if, he felt, 'he wanted to see me break'. The doctor asked if he was going to self harm, how would he do it. It was then he told the doctor that he had firearms, but said he told the doctor he was not a candidate for self-harm; all he wanted was a referral to a psychiatrist, although he said in cross-examination that he did not know if the 'next step' was in-patient care. 3. As to why he had taken his sister with him, the Applicant said in cross-examination that 'it was not a proud moment' to admit he had mental health issues. 4. He said he was sure he would have mentioned to Dr Mir his employment issues. He said that he told Dr Mir he had firearms and it was the doctor's idea that he give the keys to his sister. The Applicant said he disagreed with this course because there was 'no issue' that he would self-harm, but ultimately agreed to give his sister the keys. 5. He obtained from Dr Mir the referral to Dr Saboor, who he saw the following day. He said he told Dr Saboor he definitely had no suicidal thoughts and the doctor told him he would see him again in a week, and that he needed "no treatment". 6. When he next saw Dr Humphery though the doctor told him to spend 1-2 weeks in a clinic to 'get [himself] right' and referred him to Dr Kumar, who has been treating him ever since. He said Dr Kumar's view was that he needed support, whereas Dr Saboor wanted him medicated. He has seen Dr Kumar 10-12 times. 7. Since his attendance on Dr Mir on 3 August 2020, the Applicant has been admitted as an inpatient at the Northside Cremorne Clinic from 8 September 2020 and was discharged on 24 September 2020: per Dr Kumar's letter dated 25 November 2020. 8. When Police attended the Applicant after being contacted by Dr Mir the Police did not feel that it was necessary that he be 'scheduled'. The following day when Sgt Balfour attended the Applicant denied having said he had told Dr Mir that he wanted to kill himself. Sgt Balfour thought the Applicant tried to "back peddle or water down what he had expressed to the doctor the previous day" and "given that he had admitted to potentially using firearms within the context of contemplating suicide, and freely admitted to experiencing mental health issues" it was not appropriate for firearms to remain in his possession. 9. The Applicant has since denied to medical professionals that he admitted to feeling suicidal and that there had been a misunderstanding: letter from Dr Saboor dated 20 August 2020; letter from Dr Kumar dated 25 November 2020; report of Mr Kruger-Davis dated 13 December 2020. 10. The Applicant said he continues to be medicated – he takes a small dose of Quetiapine at night which he uses if he has had a late-night board meeting. He knows not to use his firearms for 24 hours. Carlene Trainor, the Applicant's sister 1. Ms Trainor provided a statement dated 20 August 2020. There she wrote that she had accompanied the Applicant to visit Dr Mir on 3 August 2020. In her evidence Ms Trainor said that since her brother's divorce she would go with him to medical appointments, notwithstanding he had a partner. She wrote that her brother needed a referral to a psychiatrist to assist in 'managing life changes'. 2. She said on 3 August 2020 her brother was upset and was having a panic attack; she mentioned the divorce, and the shared care of the child, but the major impact was the retrenchment. 3. She said her brother had not initiated any discussion with Dr Mir about suicidal thoughts and it was the doctor who had asked her brother and he had responded that he had not. Dr Mir had said, words to the effect, 'well if you did, how would you do it?'. It was then the Applicant mentioned that he had guns. She said she and her brother are close and he had never told her he had any suicidal thoughts. She did not believe he would harm himself or anyone else. 4. As they were leaving, she said, Dr Mir suggested the Applicant give her the keys to the gun safe, and she assured the doctor she would take them. As the Applicant did not have the keys with him, she collected them from his home when they returned there. She said if she had been really worried about her brother's safety, she would not have left her brother there alone that night. 5. She said she was concerned about the consultation, and suggested her brother seek an early consultation with his General Practitioner, Dr Humphery. Dr Mir 1. According to the email from Dr Mir to the Firearms Registry following the Applicant's attendance on 3 August 2020, he was seeking a referral for voluntarily admission to a psychiatric facility. However, he was not able to be admitted into a private hospital and he refused to go to Westmead Hospital. 2. In his evidence, Dr Mir said he quickly took a history from the Applicant. He observed his demeanour – he was 'really down' and made no eye contact and said he had not slept much in the preceding few days. The Applicant told him he had been 'struggling' the last 6 months. He told him of relationship problems and that his partner, who herself has mental health issues, had left him. When he tried to discuss the relationship, the Applicant became angry. 3. Dr Mir said he administered a psychometric test (DAS 21), which includes questions about self-harm. In cross-examination he said that the test need not be administered by a psychiatrist or psychologist; he uses it as a screening tool, as do most of his colleagues. One part of the test, he said, is to have the patient reflect on internal feelings in circumstances where the patient has serious distress. He said the test is to assist in referring a distressed patient to the proper health professional. 4. The Applicant told him that the last time he had had thoughts of self-harm was that morning. When he asked the Applicant how he would do that, he said the Applicant smiled, and said he would shoot himself. He said the Applicant's sister suddenly mentioned that the Applicant had guns. He said he was 'really concerned' for the welfare of the patient and for the safety of the community. 5. Dr Mir considered that the Applicant was, that night, in 'serious distress' and required admission. He faxed a referral to Dr Saboor and tried to get the Applicant admitted to a psychiatric facility but was unable to do so. The Applicant declined a suggestion to go to Westmead Hospital. There was a discussion about going to his sister's house, but the Applicant said he wanted to go home. Dr Mir said his advice to the Applicant was to go to his sister's, but if not, to give the gun safe keys to his sister; he said the Applicant volunteered to give his keys to his sister. 6. He prescribed sleeping tablets for the Applicant who told him he would attend the Clinic the following day. He said his diagnosis was Adjustment Disorder with anxiety and depression. 7. Dr Mir said the Applicant subsequently contacted him and said he was unhappy that he had breached his confidence by going to the Police. He said he had seen the Applicant on another occasion a few months after August in relation to the same problem and the Applicant then went to hospital under the care of Dr Kumar. 8. Dr Mir conceded that he had made no notes of the consultation but said he had a very good memory of things where the safety of the community was concerned. 9. Dr Mir did not purport to comment on the Applicant's current condition or his capability. His position was that mental illness is a chronic disease for which there is no cure, only management. Dr Kumar 1. At the request of the Respondent, the Applicant produced a letter from Dr Kumar dated 25 November 2020 which was referred to in Mr Kruger-Davis' report, and requested from the Applicant by the Respondent. The Applicant had come into Dr Kumar's care while an inpatient at Northside (Cremorne) Clinic between 8 and 24 September 2020. 2. Dr Kumar referred to the Applicant having been under a great deal pressure when he first saw him – having been made redundant in April 2020 (although he knew the Applicant had a new job), a long divorce (which had concluded 2 years beforehand), shared custody of a child, and a pregnant partner with whom he had been arguing. He had been having verbal outbursts of anger but there was no history of violence. The Applicant's anxiety had escalated and he was having panic attacks. There was no prior history of self-harm or of self-harm thoughts. The Applicant was diagnosed with an Adjustment Disorder with anxiety. 3. Dr Kumar wrote that whilst it is possible that the Applicant will relapse with anxiety, he has engaged comprehensively and openly with a treatment plan, made good improvements in regards to his mental health, exercises regularly and remains engaged with Dr Kumar's treatment plans and those requested by his GP. Dr Kumar did not have concerns about the Applicant's ability to exercise responsible control over his firearms. In his evidence Dr Kumar said that he had not done a gun mental health risk assessment beforehand, and just provided his report on the basis of his clinical observations. 4. In cross-examination he could not remember if he knew that the Applicant had given his gun safe keys to his sister, but thought that it was a good idea that he had done so. He thought it was Dr Saboor that had asked the Police to take the Applicant's guns. He had not seen the information provided by Dr Mir to Police in respect of the Applicant's attendance upon him on 3 August 2020. In cross-examination he agreed that, if the Applicant had expressed suicidal ideation to Dr Mir, then that could change his view that the Applicant did not pose a risk. He said that, at that time, the Applicant was 'very unwell'. He would need to know what it was [Dr Mir] had seen in order to form his view that the Applicant had been suicidal because people express suicidal ideation in different ways. 5. Dr Kumar said the Applicant had shown a good response to his medication – an anti-depressant, Escitalopram 20 mg daily and Quetiapine 200 mg at night, which is reducing. 6. Dr Kumar said he had seen the Applicant twice since his report of 25 November 2020 and he continues to improve. He will see him less and less, unless there is a problem, such as a relapse of his anxiety. He did not know what might precipitate a relapse. He said that the Applicant's condition currently affects his day-to-day performance only minimally, or not at all. He said his diagnosis of Adjustment Disorder was because of 'his job and his wife'; 'things happen'. He said the Applicant knows to get help quickly; because he is so work-oriented, he can't afford to lose time off work. Dr Saboor 1. Dr Saboor reported to Dr Mir on 4 August 2020. He took a history that the Applicant had emotional disregulation and anger management problems. Dr Saboor referred in his notes to the Applicant having 'recently' been made redundant; and that the Applicant denied he was impulsive. Dr Saboor wrote that the Applicant gets angry and frustrated with his partner. The Applicant denied suicidal ideation. Dr Saboor's impression was of anger issues and mood disregulation in the context of relationship issues. He was prescribed medication and advised to see a psychologist. The notes from 4 August 2020 record that the Applicant "gets angry and frustrated often". 2. Dr Saboor reported on 20 August 2020 on his follow up consultation with the Applicant on 18 August 2020. He confirmed that he did not regard the Applicant as suffering from Depression or Adjustment Disorder. He observed that the Applicant had relationship issues and issues related to role transition as well as a mild anger problem. Dr Saboor's notes confirm these observations and refer to "ongoing issues with his partner". He considered the Applicant to be safe to hold his gun licence and is not at risk of harming himself or anyone else. He noted that the letter was required "for appeal". 3. On the next review, on 3 September 2020 Dr Saboor referred the Applicant for admission to Northside Clinic. He wrote that the Applicant had been diagnosed with Generalised Anxiety Disorder, and that recently his relationship had broken down, and his anxiety had increased, and he was struggling to manage it. His notes from that date refer to "excessive anxiety in the context of relationship breakdown". 4. Dr Saboor's notes of a review on 15 September 2020 state that the Applicant has "separated from his partner - ongoing relationship issues" and that he is "anxious re his partner". 5. On 20 November 2020, the Applicant's solicitor informed the Respondent's solicitor that his client had another appointment with Dr Saboor on 1 December 2020 and another assessment would be undertaken. No further report from Dr Saboor was provided to the Respondent or to the Tribunal. Dr Saboor's notes of that review record that the Applicant feels good, and that he had attended for the purpose of obtaining a letter in support of the return of his firearms licence. It was noted that he was now seeing Dr Kumar fortnightly. Mr Kruger-Davis 1. On 19 November 2020 the Applicant's solicitor had asked the Applicant to obtain a Risk Assessment from a psychologist and provided a list of questions that should be addressed. Mr Kruger-Davis (who is not the Applicant's treating psychologist) provided a report dated 13 December 2020 in which he did not respond directly to any of the questions in the Risk Assessment. 2. Mr Kruger-Davis' report refers to undertaking a telehealth interview with the Applicant on 26 November 2020, and that he had supplied the Applicant with depression, anxiety and psychological distress questionnaires to which the Applicant responded. As a result of the various tests he administered, he formed the view that the Applicant's responses were all within normal range – for anxiety, depression and overwhelming stress. He showed a very low level of psychological stress. He considered the Applicant's suicide risk profile to be very low. 3. Mr Kruger-Davis conducted a conference call on 11 December 2020 with the Applicant and Dr Kumar. 4. Mr Kruger-Davis' report notes that the Applicant had been diagnosed by Dr Kumar with an Adjustment Disorder with anxiety. Mr Kruger-Davis noted that the major stressor impacting on his life at that time was his having been made redundant, which was in April 2020. He makes no mention of any relationship issues between the Applicant and his partner. In cross-examination he confirmed that the only reason the Applicant had given for needing help was because of his redundancy. He said that by November/December 2020 when he saw the Applicant, that then was apparently no longer an issue. He was also specifically asked about relationship issues, but said the Applicant did not bring that up. 5. He wrote that the Applicant's Adjustment Disorder, as diagnosed by Dr Kumar, is being managed effectively and the "initial predisposing factor" no longer exists, noting that the Applicant is back to full employment. 6. In cross-examination he said he was aware the Applicant had another job at the time he saw him. He said he was possibly aware that by August the Applicant had secured another position; he said that even if he had another job by that time, that did not mean he had got over the loss. However, he reiterated, there were no depressive thoughts by the time he had seen the Applicant. 7. In his evidence Mr Kuger-Davis said he had been engaged to assess if the there were mental health issues for the purposes of the Applicant holding a firearms licence. He commenced his assessment by satisfying himself that it was appropriate to assess the Applicant, confirming, for example that he was not delusional. He reported on his discussions with Dr Kumar, which were broadly consistent with Dr Kumar's reports and evidence. Mr Kruger-Davis found that the Applicant no longer had problems decision under review to the medication and therapy he was undertaking under Dr Kumar's direction. He said he had applied a number of psychometric tests and found that in relation to all, the Applicant was within normal range. He said that when he asked the Applicant about the questions Dr Mir had asked, he said nothing. In cross-examination he said he did not refer to Dr Mir's notification because he was assessing the Applicant's current condition. In any event he was aware the Applicant was disputing Dr Mir's account of the consultation and he accepted the Applicant's version. 8. He said that everyone's moods change over time. He said the Applicant did not present as a person with depressed mood or anxious. He considered the Applicant's diagnosis of Adjustment disorder with anxiety and depression had related to a specific incident. The Applicant has been treated and there is no longer any concern about his mental state. In any event the Applicant now has skills to know to seek further psychological help if necessary. 9. He considered the Applicant was suitable to have his firearms licence restored; he can perform tasks that reflect his high-functioning ability. His assessment of the medical advice of Dr Kumar, Dr Saboor and Dr Humphery was that the Applicant will "probably be OK". He regarded the risk of the Applicant harming himself or anyone else as 'negligible". He considered the Applicant does not pose a suicide risk. He considered the Applicant was very unlikely to pose a risk to the public or himself, if he were to possess firearms. CONSIDERATION 1. Before me the Respondent's main objection to the Applicant maintaining a firearms licence was in relation to his alleged admissions of contemplating suicide, and doing so with a firearms, as well as his ongoing treatment for mental health issues. It was also submitted that I should take into account in the consideration of the public interest was the Applicant's alleged failure to comply with licence conditions. The public interest: s 24(2)(d) of the Act and cl 20 of the Regulation 1. Section 24(2)(d) of the Act provides that a licence may be revoked for any other reason prescribed by the Regulation. Clause 20 of the Regulation provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence. 2. The expression "public interest" is not defined in s 11(7) nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. 3. The Applicant has, according to Ms Bryant, been an avid hunter from a young age and he has several family members and friends who live on regional properties on which there are feral animals. He hunts, she wrote, for enjoyment as well as pest control. The Applicant said he had been to boarding school and had friends whose families had properties. He said in his evidence that he shoots mainly for vermin control. Ms Thompson's wrote that she had given permission for the Applicant to hunt on her property for the purpose of recreation and vermin control. She wrote that they call upon the Applicant to help eradicate pests. She said he would shoot at their property at least once a month for the last 8 years. Mr Larkin's Authority was open-ended as to duration while he is the owner of the specified property. 4. I accept that the Applicant's interest in shooting is both a hobby and a pastime which also assists landowners experiencing feral animals on their properties. Private interests, however, are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. Accordingly, the Applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest. 5. Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was also a case on the "fit and proper person" test, I observe though that the principle in Ward has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66]. 6. The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum: see also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7]. 7. In Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 at [32], Montgomery JM, when considering the question of public safety, stated that, only real and appreciable risk needs to be taken into account and that minimal, fanciful or theoretical risk can be excluded from consideration. 8. There is a fundamental inconsistency in the evidence about what occurred in Dr Mir's rooms on the evening of 3 August 2020 which then gave rise to the events that led ultimately to the revocation of the Applicant's firearms licence. On the one hand, Dr Mir said that the Applicant told him that the last time he had had thoughts of self-harm was that morning and that, when he asked the Applicant how he would do that the Applicant said he would shoot himself. Although Dr Mir made no notes of the consultation his immediate contact with Police details his observations. 9. The Applicant, on the other hand, strenuously denied he had told the doctor that he had had thoughts of self-harm and that the doctor kept 'probing and pushing' him about whether he had thoughts of self-harm, and if so, how would he do it. It was then he told the doctor that he had firearms. He said he told the doctor he was not a candidate for self-harm and just wanted a referral to a psychiatrist, or in-patient care. The Applicant's account was corroborated, to some extent, by his sister who also attended the consultation with Dr Mir. She said that her brother did not say that he had suicidal thoughts; Dr Mir asked him if he were going to kill himself, how would he do it. She said the Applicant told the doctor he had never really thought about killing himself or how he might go about it, but that he did own a gun. The Applicant has consistently denied to medical professionals that he had felt suicidal. 10. There was some dispute as to whose suggestion it was that the Applicant's sister take the keys to his gun safe, but Dr Mir, the Applicant and his sister all considered that an appropriate course. 11. Dr Mir was sufficiently concerned by the Applicant's demeanour that night that, not only did he attempt to have the Applicant admitted to a psychiatric facility, in accordance with the Applicant's request, but he faxed a referral to Dr Saboor to see the Applicant the following day, and also prescribed some medication. Moreover, he contacted Police about the Applicant because he was 'really concerned' for the welfare of the patient and for the safety of the community. I observe that s 79 provides that a medical practitioner may contact Police if a patient may pose a threat to public safety or to themselves. Dr Mir may have erred on the side of caution having regard to his perceived concerns. Such a course, in view of the Applicant's demeanour and his access to firearms is not unreasonable, irrespective of whether the Applicant had actually said he had thoughts of self-harm. 12. The Applicant did not dispute that he had attended Dr Mir because he had been unable to get an appointment with his General Practitioner, because he felt a need for urgent psychiatric assistance. His sister said he needed assistance in 'managing life changes', the most significant of which was his redundancy. He told Dr Mir he had been 'struggling' the last 6 months, which coincides with his having been unexpectedly made redundant from his very responsible position. I observe that quite soon after having been made redundant the Applicant had obtained another job. The loss of the job and his divorce were the reasons he was seeking medical intervention. He said he had become withdrawn and he and his new partner were thinking of separating. 13. Dr Saboor's impression of the Applicant's condition was emotional disregulation and anger management problems in the context of relationship issues. Notwithstanding the Dr Saboor's view that the Applicant required only minimal intervention, the Applicant was later admitted to Northside Clinic between 8 and 24 September 2020 under the care of Dr Kumar. Dr Kumar took a history that included the Applicant's redundancy, his divorce, shared child care and his present relationship. The Applicant's anxiety had escalated and he was having panic attacks. The Applicant was diagnosed with an Adjustment Disorder with anxiety. 14. Dr Kumar, as the Applicant's treating psychiatrist, said the Applicant had shown a good response to his medication and his condition continues to improve, and currently affects his day-to-day performance only minimally, or not at all. and he presently needs less active management. While a relapse is always possible, the Applicant knows to get help quickly. 15. The report from Mr Kruger-Davis notes that the Applicant had been diagnosed by Dr Kumar with an Adjustment Disorder with anxiety. Mr Kruger-Davis noted that the major stressor impacting on his life at that time was his having been made redundant, which was in April 2020 but that by November/December 2020 when he saw the Applicant, that was no longer an issue but even if the Applicant had secured another position that did not mean he had got over the loss. 16. Mr Kruger-Davis makes no mention of any relationship issues between the Applicant and his partner, which according to both Dr Kumar and Dr Saboor appears to have increased in significance. However, the Applicant clearly was continuing to experience emotional difficulties in August 2020 when he consulted Dr Mir and in September 2020 when he was admitted to Northside Clinic. 17. There was some disagreement among the various medical practitioners as to the correct and current diagnosis of the Applicant's condition. I prefer Dr Kumar's diagnosis of Adjustment Disorder because he is the treating psychiatrist. Mr Kruger-Davis went so far as to opine that the Applicant has been treated and there is no longer any concern about his mental state, but in view of his ongoing treatment, I consider this to be an unwarranted conclusion. A more moderate assessment is that the Applicant's condition is being well managed and he now has skills to know to seek further psychological help if necessary. 18. Other than Dr Mir, none of the medical practitioners considered the Applicant to pose a suicide risk. Dr Kumar said though that if the Applicant had expressed suicidal ideation to Dr Mir, then that could change his view and would need to know what Dr Mir had observed in order to form his view that the Applicant had been suicidal. While much of Dr Mir's evidence is corroborated by his contemporaneous notification to Police, his evidence of the Applicant's demeanour is on the basis of his recollection of his impression alone, and to that extent are not completely reliable. Dr Kumar said that, at the time the Applicant had seen Dr Mir he was 'very unwell', although not so unwell it appears, that attending Police had him 'scheduled', nor did Dr Saboor the following day. Certainly, Dr Kumar's current view is that he does not have concerns about the Applicant's ability to exercise responsible control over his firearms. 19. With regard to the various reports and letters from mental health professional submitted by the Applicant, it is relevant to note the Tribunal's decision in Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311 at [44] –[51] where it was held that an expert medical opinion should be given no weight where it fails to contain sufficient details and reasoning to support the opinion expressed; provide the criteria applied to reach any conclusions; and outline the history taken and understanding of the facts applied to the criteria in order to reach the opinion. I do not consider any of the reports is appropriately rejected out of hand, but I have indicated that more weight should be given to Dr Kumar's evidence as the treating psychiatrist, especially in relation to the Applicant's present condition. 20. The Respondent submitted that, despite the evidence provided by the Applicant, there is too much uncertainty regarding the Applicant's mental health for the Tribunal to be satisfied that there is virtually no risk to public safety if the Applicant was granted a firearms licence. 21. In AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5 at [23], the Tribunal held that while both effective treatment and a lengthy period of stability are relevant, they are not mandatory. The Respondent submitted that there has not been a lengthy period of stability, and even if the Tribunal were to accept the views of the Applicant's mental health experts, there is too much uncertainty and inconsistency in the reports for the Tribunal to be satisfied that there is virtually no risk to public safety if the Applicant was granted a firearms licence. 22. The Respondent relied on Allan v The Commissioner of Police [2008] NSWADT 230 as authority for the Tribunal has previously considered less than 12 months from the date of an applicant's suicide threat to the date of the hearing to be an inadequate period of time for it to be satisfied that there was virtually no risk, despite a psychologist's report that the risk posed by the applicant was low: see at [33] – [34]. The circumstances of that matter however included that the Applicant had had been diagnosed for some years with Paranoid Personality Disorder with depression, drank alcohol to excess which exacerbated his condition and had made a very direct suicide threat as a result of which he had been scheduled. In all, the circumstances of that matter were very different to the circumstances here. 23. The Respondent submitted that it is also important to note that when considering whether there is "virtually no risk" to the public, the Tribunal should consider the risk to the Applicant himself, as a "member of the public": Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117 at [74]. Further, the Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. When considering future risk, the Tribunal must consider the past conduct of the Applicant as a significant guide: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]. There was no evidence that the Applicant had taken any steps at any time to engage in self-harm. 24. In summary, while the Tribunal can never be completely satisfied that there is no risk in the Applicant retaining his firearms licence, in the circumstances I am not satisfied that the risk is sufficiently high that it should prevent the Applicant from holding the licence. Contravention of the Act: ss 7A, 19 and 24(2)(b)(ii) of the Act and cl 108 of the Regulation, and Contravention of condition: s 24(2)(b)(iii) of the Act and cl 31 of the Regulation 1. Section 24(2)(b)(ii) of the Act provides that a licence may be revoked if the licensee contravenes any provision of the Act or the Regulation, whether or not the licensee has been convicted of an offence for the contravention. Section 7A provides that contravention of a condition of a licence is an offence. Similarly, s 24(2)(b)(iii) of the Act provides that a licence may be revoked if the licensee contravenes any condition of the licence. 2. The Commissioner has a broad power to impose conditions on a licence: see s 19 of the Act. This includes cl 31 of the Regulation, which provides that a licence that is issued for the genuine reason of recreational hunting/vermin control (as was the Applicant's licence) is subject to the condition that the licensee must comply with any applicable requirements of Part 10 in relation to participation requirements for club members. It is noted that participation requirements for club members only apply if the membership of the club is the sole ground on which the licensee has established that genuine reason. 3. The participation requirements under Part 10 of the Regulation relevantly include cl 108, which provides that: (1) the holder of a licence issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club must be a member of at least one approved hunting club and must, during each compliance period for such a club of which the person is a member, participate in no less than 2 hunting club events. (2) This clause only applies where membership of an approved hunting club is the sole ground on which the licensee has established the genuine reason of recreational hunting/vermin control. … 1. The Respondent contended that the Applicant contravened s 7A of the Act by failing to comply with conditions of his licence. The Respondent relied on the records of the Sporting Shooters Association of Australia (SSAA). The SSAA Membership Services Manager wrote that the Applicant had been a member from 7 August 2009 to 31 August 2018, and again, from 3 June 2019 (which expires on 30 June 2025). The SSAA's records note the Applicant's genuine reason for holding a firearms licence is recreational hunting. Since becoming a member in 2009, the Applicant had failed to comply with minimum attendance requirements in every compliance period from 2012/2013. 2. The Respondent submitted that when the Applicant's last full licence application was made in 2009, the sole ground on which he claimed the genuine reason of recreational hunting/vermin control was membership of an approved hunting club. I could not locate any documents in the s 58 papers, nor elsewhere, to that effect. The Applicant said that he had sent into the Firearms Registry a copy of Mr Larkin's Authority, but he could not be sure when this was. The Respondent advised that the Firearms Registry has no evidence of the Applicant providing any other ground to support the genuine reason for a licence, "such as being the owner or occupier of rural land", although there was no contention by the Applicant that he had changed his genuine reason. The Applicant said he did not understand that he had to amend his 'genuine reason', except on renewal of his licence. The Applicant said he had other Authorities as well and he also noted Ms Thompson's letter. The Applicant also observed that he had been able to renew his licence in 2019 notwithstanding the alleged non-compliance. No charges were brought against the Applicant notwithstanding the provisions of s 7A(2)(b) of the Act. 3. In any event, cl 32(1)(b) provides that if a member of an approved shooting club (such as the SSAA) has recreational hunting/vermin control as their genuine reason for their licence they are authorised to participate in shooting activities other than those conducted by the hunting club, but only on rural land with the permission, relevantly, of the owner. A licensee must produce evidence of that permission if requested by Police to do: cl 32(3). Curiously, there is no requirement that the number of hunting sessions on rural land must equate with the obligations imposed as to frequency of shooting at a hunting club. Clauses 32 and 108 appear to be inconsistent in that regard. 4. I accept that the Applicant was a member of the SSAA from 7 August 2009 to 31 August 2018, and again, from 3 June 2019. I also find that, since becoming a member the Applicant failed to comply with minimum attendance requirements from 2012/2013. However, I also accept that Ms Thompson had given permission for him to hunt on her property for the purpose of recreation and vermin control, and that he would shoot at their property at least once a month for the last 8 years. Similarly, Mr Larkin's Authority dated 7 September 2009 permitted the Applicant to hunt and engage in vermin control on his property, although there was no evidence as to the frequency the Applicant may have hunted at Mr Larkin's property. 5. I am not satisfied that the Applicant has contravened a condition of his firearms licence, nor contravened a provision of the Act. Even if I am wrong, I do not consider that the alleged breaches warrant the exercise of the Tribunal's discretion in s 24(2)(b)(ii) and s 24(2)(b)(iii) of the Act against the Applicant. Conclusion 1. For the reasons outlined above, the correct and preferable decision is to set aside the decision of the Respondent to revoke the Applicant's Category AB Firearms Licence. DECISION 1. The decision under review is set aside. ********** 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: 16 March 2021