Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Probst v Commissioner of Police [2022] NSWCATAD 245 Hearing dates: 2 November 2021 Date of orders: 21 July 2022 Decision date: 21 July 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: K Mobbs, Senior Member Decision: The decision under review is affirmed Catchwords: LICENSING –firearms – revocation of licence – public interest – mental health – alcohol. Legislation Cited: Administrative Decisions Review Act 1997 Firearms Act 1996 Firearms Regulation 2017 Police Act 1990 Cases Cited: AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321 Barlow v Commissioner of Police, New South Wales Police Service [2003] BSWADT 254 Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 DWH v Commissioner of Police, NSW Police Force [2019] NSWCATAD 125 Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 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 McDonald v Director-General of Social Security (1984) 1 FCR 354 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 Probst and Commissioner of Police (No 2) [2009] NSWIRComm 201 Rodgers v Commissioner of Police, New South Wales Police Service [2001] NSWADT 167 Shi v Migration Agents Registration Authority [2008] HCA 31 Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184 Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT185 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 Texts Cited: Nil Category: Principal judgment Parties: Steven Probst (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Applicant (Self-Represented) Lindsay Taylor Lawyers (Respondent) File Number(s): 2021/00172589 Publication restriction: Nil REASONS FOR DECISION 1. The Applicant was first issued with a firearms licence in 1998. On 25 August 2020, the Applicant's category ABH firearms licence was suspended by the Respondent and his personal firearms seized. On 22 March 2021 his licence was revoked. The Applicant was a serving police officer who was on sick leave at the time of the suspension and revocation of his firearms licence following a workplace incident. The notice of revocation referred to the suspension of the Applicant's firearms licence due to concerns for his mental health and noted that the Applicant was on sick leave and suffering with Post Traumatic Stress Disorder (PTSD) and alcohol abuse [sic] disorder. As the Applicant had not been cleared to return to full time police duties or possess his work firearm, mental health concerns remained and it was considered that it was not in the public interest for the Applicant to possess a firearms licence. 2. The Applicant sought internal review of that decision on 22 April 2021 and as the Applicant was not notified of the outcome of the review within 21 days after it was lodged, the review was taken to have been finalised under section 53(9)(b) of the Administrative Decisions Review Act 1997 (ADR Act). The Applicant subsequently applied to this Tribunal on 16 June 2021 for review of the decision to revoke his firearms licence. Relevant Legislation 1. The general principles and objects of the Firearms Act 1996 (the Act) are set out in s 3 as follows: (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 (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows— (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (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, (f) … 1. Section 11 of the Act relevantly provides: 11 General restrictions on issue of licences ... (3) A licence must not be issued unless— (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and … (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of— (a) the applicant's way of living or domestic circumstances, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind. ... (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. 1. Section 24 of the Act sets out the various grounds on which a licence may be revoked and they include the following: (2) A licence may be revoked— (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee— (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or … (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or … (d) for any other reason prescribed by the regulations. 1. Clause 20 of the Firearms Regulation 2017 (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" Role of the Tribunal 1. The Tribunal has jurisdiction to hear and determine this application by reason of s 75(1)(c) of the Act and s 9(1) of the ADR Act. 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 then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent, and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 [28]-[30], [34]. In 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. The evidence 1. The matter was heard by audio visual link. The Respondent did not call any oral evidence and relied on the s 58 documents (exhibit R1), the material contained in the Commissioner's Bundle of Evidence and the written submissions filed and served by the Respondent. The Applicant raised concerns about the Commissioner's Bundle of Evidence and written submissions having been served late. Mr Zoppo, on behalf of the Respondent, advised that as a matter of fairness he would consent to an adjournment to allow the Applicant further time to consider the material. The Applicant indicated that he did not want an adjournment and that the matter should proceed. The Commissioner's Bundle of Evidence was admitted into evidence (exhibit R2). 2. The s 58 documents include the Applicant's Licence History and material relating to the suspension and revocation of his firearms licence. It also includes a letter dated 22 October 2020 to the Applicant from the Firearms Registry requesting a mental health risk assessment, an undated report from Leanne McInerney, Registered Psychologist and a report dated 15 April 2021 from Daren Wilson, Independent Treating Psychologist. Also included are a series of emails relating to the Applicant's fitness for work. 3. The Commissioner's Bundle of Evidence (exhibit R2) contains some material that was not before the original decision maker and includes the decision of Sams DP in Probst and Commissioner of Police (No 2) [2009] NSWIRComm 201 (IRC Decision). The remaining material includes various medical and consultation notes, referral letters, reports and correspondence relating to the following practitioners: * Dr Elliot-Rudder, General Practitioner * Dr Adesina Adesanya, Consultant Psychiatrist * Ms Leanne McInerney, Registered Psychologist * Mr Daren Wilson, Independent Treating Psychologist * Dr Robert Reed, General Practitioner * Dr Alexey Sidorov, Forensic Psychiatrist 1. The Applicant tendered certain written material (exhibits A1 to A6) including an Affidavit by him dated 25 July 2021 with attachments (exhibit A1), a New South Wales Police Form P650 (exhibit A2) and an Individual Profile relating to the Applicant (exhibit A6). References from Nicole Ward (exhibit A3), Luke Glasgow (exhibit A4) and Dr Rachel Clancy (exhibit A5) were tendered and each gave oral evidence and was cross-examined by the Respondent. Daren Wilson also gave oral evidence and was cross-examined. The Applicant also relied on the submissions in reply to the Respondent's written submissions that he had filed and served. The IRC Decision 1. The IRC Decision (tab 1 of exhibit R2) sets out the background to those proceedings. In brief, the Applicant joined the NSW Police Force in December 2001. He was suspended on 4 August 2007 and then reinstated on restricted duties at Albury Police Station. On 2 March 2009, the Commissioner of Police served the Applicant with a reviewable order under s 173 of the Police Act 1990 that he be subject to a disciplinary transfer to the Wollongong Local Area Command (LAC). 2. The suspension and reviewable order arose out of five incidents of domestic violence allegations made by the Applicant's former partner and are set out in the IRC Decision at [60] to [93]. The incidents alleged by her are summarised as follows: 1. Incident 1 was alleged to have occurred on 30 January 2005. She said that while the Applicant was intoxicated, he said to her "If you go home, I'm going to stab myself and call the police and tell them that you've stabbed me". The Applicant then physically shoved her in the chest and caused her to fall backwards into the dirt, hurting her head. The Applicant then repeated the comment about stabbing himself. 2. Incident 2 was alleged to have occurred on 13 February 2005. She said that the Applicant burnt a number of her documents and photos, smashed photo frames and threatened to set her car on fire. She said that the Applicant "did some kind of foot sweep" on her causing her to fall and she thought that she hit her head on the edge of the tiles resulting in a 3 centimetre laceration on her head. The Applicant admitted to drinking 10-12 light beers and was "moderately intoxicated". She also said that on 4 or 5 April 2005, the Applicant got quite drunk at the pub and wanted to pick an argument with a stranger. When they got back he went on about how useless she was and how she had not supported him. He kicked the glass shower screen and shattered it. 3. Incident 3 was alleged to have occurred on 23 August 2006 in Melbourne. She said that she was in the bath and that the Applicant came back "really drunk"'. In the context of an argument, the Applicant suggested they 'shake on it' and then proceeded to crush her hand. She said that to make the Applicant let go, she swung her left hand and caught him on the jaw. The Applicant went "berserk", grabbed her hair and held her face down under the water. He did this twice. She ended up with a large bruise on her left elbow, a bruise on her left temple and on the side of her left jaw. The Applicant admitted to drinking 15 light beers and that he was 'moderately intoxicated'. 4. Incident 4 was alleged to have occurred in November 2006. During an argument with the Applicant, she said that he started to slam doors and yell at her. The Applicant then shoved her in the chest causing her to fall backwards onto the ground. She grabbed a basket of her belongings and put it into the car. The Applicant then locked her out. The Applicant's former partner said that she was in pyjamas, with no wallet or work uniform as these were inside. She said that she drove back to Corowa in her pyjamas and rang [the Applicant's mother] to tell her the Applicant was getting violent again and was talking about suicide, which he did occasionally, by referring to a hunting accident or taking an overdose of Valium. His mother said that she did not want to tell her husband and that she was sure her son would get over it. 5. Incident 5 occurred on 16 February 2007 at her new home in Queensland. The Applicant and his friend returned to her home and were both intoxicated and an argument ensued. As the Applicant was packing his things, he ripped down a curtain rail and threw it across the room. She said that he took her phone and called the emergency number and yelled repeatedly into the phone saying "stop hitting me…" He then threw the phone and smashed it, saying "see how that sounds on the emergency tape". The Applicant then smashed his head into the wall. In cross-examination, she said that she later believed the Applicant pretended to make the telephone call to the police as there were no police phone records. 1. The material before the IRC included reference to separate proceedings in the Southport Magistrates Court in Queensland for an application for a domestic violence order against the Applicant. On 13 June 2007, that application was not successful because of the geographical separation between the Applicant and his former partner. The IRC Decision refers at [151] to the Magistrate in those proceedings stating that he was "impressed" by her in the evidence that she gave before him. 2. Pursuant to s 174 of the Police Act, the Applicant sought a review of the Commissioner's order by the Industrial Relations Commission (IRC). The matter was heard before Sams DP over five days in July and September 2009, followed by written submissions by the parties. The IRC Decision was handed down on 16 December 2009. In the decision, Sams DP said at [338] that it was: "not a case where discrete or specific aspects of the evidence are in evidentiary contest. The applicant maintains, and has done so from the beginning of the Force's investigations, that all of the allegations against him are untrue and have been manufactured by a jealous former partner who is mentally unstable…The closest the applicant's evidence ever got to [his former partner's] version of the incidents was that he may have raised his voice from time to time, that they had numerous verbal arguments and that their relationship was volatile and tumultuous. Moreover, the applicant maintained that it was [his former partner] who was the aggressor- mostly when she went off her medications." 1. Sams DP dismissed the application and relevantly found: 1. On the balance of probabilities, where there is conflict of evidence, the evidence of the Applicant's former partner is to be preferred to his evidence. 2. On the balance of probabilities, the five allegations identified in the s 173 order are sustained. 3. The Applicant's conduct breached the New South Wales Police Force's Code of Conduct and Ethics and the New South Wales Police Standards of Professional Conduct. Oral Evidence 1. As referred to previously, the s 58 documents (exhibit R1) include a report of Mr Wilson dated 15 April 2021. This report was also included in the Commissioner's Bundle of Evidence (tab 13 of exhibit R2). The report is addressed to Superintendent Noble of Wagga Wagga Police Station and refers to the letter dated 22 March 2021 advising the Applicant of the decision to revoke his firearms licence due to his work-related PTSD and Alcohol Use Disorder. Mr Wilson states that he initially treated the Applicant from 14 May 2018 to 25 October 2018 for an Adjustment Disorder with mixed anxiety and depressed mood (moderate severity) following a referral from Dr Robert Reed. 2. Mr Wilson states that in 2018 he conducted a total of 15 sessions with the Applicant before the Applicant's Adjustment Disorder stabilised and case closure occurred. At no point during this treatment period did Mr Wilson have any concerns regarding the Applicant having a firearms licence and having access to guns in his home. He refers to the Mental Health Risk Assessment provided in January 2021 by Ms McInerney, and that there were no concerns reported by her during her treatment of the Applicant that his firearms licence should be revoked. 3. Mr Wilson states that the Applicant was again referred to him in early 2021. In his report, Mr Wilson opines that: "I concur with Ms McInerney's Risk Assessment and the 6 hours of treatment I have conducted since January 2021 that there has been no evidence and I have no concerns that [the Applicant] is at risk of self-harm or a risk to the public by holding a NSW firearms licence due to his diagnosed Post-Traumatic Stress Disorder (PTST) (Criteria 209.81; DSM-5 2013) and Alcohol Use Disorder." 1. The Commissioner's Bundle of Evidence (tabs 13 to 15 of exhibit R2) contains further material from Mr Wilson including a report dated 21 July 2021 (also included as an attachment to exhibit A1), various pieces of correspondence either sent or received by Mr Wilson together with clinical notes of his treatment of the Applicant during the periods 14 May 2018 to 25 October 2018 and 2 February 2021 to 31 August 2021. 2. In Mr Wilson's report dated 21 July 2021 he says that the "report was requested as a recent update of my professional opinion of [the Applicant's] capacity to hold a firearms licence as he continues to engage in workers compensation treatment to endeavour to return to his NSW Policing duties at Wagga Wagga NSW". He opines as follows: "After having served in the Australian Army (served in Somalia, Rwanda & East-Timor) I reviewed the above reports and have treated [the Applicant] since May 2018 and more recently in 2021 for adjustment and traumatic reprocessing over now 32 video counselling sessions due to multiple critical events that occurred during his NSW Policing duties; I have formed the opinion that he had at no time posed a threat to himself, was a risk to others or was at risk from others while holding a firearms license and engaging [in] weapon handling activities." 1. In the report, Mr Wilson refers to attending a requested Return to Work case conference on 13 April 2021 during which he was requested to review the Applicant's ability to hold a NSW firearms licence. The report continues on as follows: "Additionally, in light of my AHRR (dated 6 July 21) concerns over the barriers that were impeding [the Applicant's] RTW and recovery stating 'Still awaiting as strongly recommended in the absence of suicidal ideation that [the Applicant] have access to his personal firearms be reinstated so he can attend the gun/shooters club in Wagga for social support, competition and recreational interest'. An additional report to revoke and reverse [the Applicant's] ceasing of his firearms was requested. This was relevant after it was discussed that [the Applicant] was experiencing increased isolation, social withdrawal and lowering focus/motivation to engage in hobbies/recreational interest as he started to explore RTW options." 1. Mr Wilson then reiterates his opinion supporting the return of the Applicant's firearms licence. The "AHRR" referred to in that report is a document headed "Allied health recovery request" and completed by Mr Wilson on 6 July 2021 (AHRR), (tab 13 of exhibit R2). Page 2 of the AHRR refers to an assessment of the Applicant completed on 28 February 2021 as follows: "DASS-21: Depression at severe, anxiety at extremely severe and stress at severe population levels, BAI: Scored Severe levels of anxiety BDI-II: Scored severe levels of depression BHS: Scored moderate levels of hopelessness and avoidance PCL-5: Scored Severe levels of PTSD symptomology 1. The AHRR also includes reference to an assessment of the Applicant completed on 30 June 2021 as follows: "DASS-21: Depression, Anxiety and stress are all now at severe population levels. BAI: Score remains at Severe levels of anxiety BDI-II: Score remains at severe levels of depression BHS: Score has increased to severe levels of hopelessness and avoidance PCL-5: Score remains at severe levels of PTSD symptomology 1. Mr Wilson went on to recommend in the AHRR that 8 x 90 minute sessions be conducted with the Applicant as he "aims to restabilise his elevated PTSD symptoms and recent alcohol increases…" 2. Mr Wilson gave oral evidence in the proceedings and adopted his report dated 21 July 2021. He referred to his expertise in relation to the question of fitness relating to firearms arising from his lengthy practice as a psychologist and his service in the Army including in war zones. Mr Wilson gave evidence that there were no indications that the Applicant was a risk to others, or from others, in relation to firearms. He advised that since providing his report he had been sent a copy of the IRC Decision by the Applicant. When asked by the Applicant if the IRC Decision changed his view in relation to the Applicant's fitness to hold a firearms licence, he said that it did not. 3. Mr Wilson was then cross-examined by Mr Zoppo, the solicitor for the Respondent. Mr Wilson was not aware of the Applicant being treated for any mental health issue or disorder prior to 2018. He had initially become involved in the Applicant's treatment as the result of being recommended by the Respondent's insurer, ELM, due to his work across Australia with those with military backgrounds and with police. 4. Mr Wilson had last treated the Applicant the previous week. He was treating him for PTSD using exposure therapy and working through a multitude of traumas to help the Applicant cope with trauma, intrusions and triggers. Mr Wilson noted that the Applicant's current symptoms of PTSD were avoidance behaviours, isolation, sleep disturbances and nightmares. He said that the Applicant's use of alcohol could fluctuate as he relies on it to bring him down from a state of arousal. Mr Wilson was trying to increase the Applicant's ability to cope with every day functioning. 5. Mr Wilson said that he was currently treating the Applicant on a fortnightly basis with 90 minute sessions to work through particular traumas. Over time this could shift into three weekly and then monthly monitoring. It was possible that more sessions would be required. Mr Zoppo referred to the Applicant's use of alcohol and that it was "not under control". Mr Wilson said that it was a factor in his condition and was being monitored. He did not agree that the Applicant's alcohol use raised his risk profile from a firearms management perspective. A variety of techniques were being used and the treatment related to PTSD. Mr Zoppo then asked him about the AHRR. Mr Wilson said that there had been a need to increase the sessions with the Applicant due to isolation. This was not due to living in an isolated area but due primarily to the isolation caused by the lack of social connections at the pistol club and this had resulted in a fluctuation of alcohol use by the Applicant. 6. Mr Zoppo questioned Mr Wilson about the assessments conducted on 28 February 2021 and 30 June 2021. Mr Wilson said that they were indicators of symptomology and that he was not concerned as it was usual for fluctuations and elevations to occur and for the severity of symptoms to fluctuate. In relation to the risk associated with the Applicant having a firearm, Mr Wilson said that no one can say that there is no risk but in the Applicant's case there was "low to no foreseeable risk". Mr Wilson confirmed that the Applicant was on medication but that he was not a psychiatrist. When asked if further assessments had been carried out since June 2021, Mr Wilson said no but they were due to be done and that he anticipated improvement after the Applicant's medical separation from the NSW Police. When asked if there was an agreement that the Applicant would not return to work, Mr Wilson said that it had been granted by the insurer but that he did not know the detail. Mr Zoppo asked if the Applicant's PTSD was ongoing and Mr Wilson said that it was. 7. In relation to the Applicant's current alcohol use, Mr Wilson said that it was under control and was not a concern. Mr Zoppo put to him that there was a report of the Applicant drinking half a bottle of spirits each night and asked how that could be considered as under control. Mr Wilson responded that it was one episode and it had not happened in a long time. Mr Wilson was then asked about the IRC Decision and confirmed that he had read it. When asked if he accepted the findings, he said that there was no evidence of that in what he had observed of the Applicant. He referred to the number of times that he had seen the Applicant and that there were no clinical observations or symptomology of the behaviour that was found in the IRC Decision. 8. Mr Wilson said that at times the Applicant's measures were quite severe and that he was not able to return to policing. Given Mr Wilson's knowledge of the Applicant's history, and assuming that the matters in the IRC Decision occurred as reported, Mr Zoppo asked if they would increase the risk for violence by the Applicant whilst intoxicated. Mr Wilson said that he had not seen that and that it was in the past. There had been no indication over multiple hours of treatment of volatility or aggression. The Applicant's failure to provide the information to him about the IRC Decision did not really cause Mr Wilson any concerns if it was not seen by the Applicant as important. 9. Mr Wilson said that he saw the Applicant's use of alcohol as self-medicating and that it was improving. It was his view that PTSD was the primary diagnosis and Alcohol Use Disorder was secondary to that and rather than treating the Alcohol Use Disorder directly, it would resolve with treatment of the PTSD. In re-examination, Mr Wilson said that there were different levels of Alcohol Use Disorder and that the Applicant was at the minimal to low end of the scale. He agreed that on the information provided to him there was not a single occasion where the Applicant's use of alcohol was an issue and that the Applicant had never appeared intoxicated, hung over or dishevelled. Mr Wilson said PTSD can on occasion cause some confusion and an inability to complete tasks. Mr Wilson agreed with the Applicant that he did not suffer from a nervous disorder, delusions and that PTSD did not prevent a person from being able to sign forms. 10. Mr Zoppo was then given leave, and without any objection by the Applicant, to ask some further questions of Mr Wilson in relation to various firearms forms completed by the Applicant. Mr Wilson agreed that he had discussed the Applicant's filling out of the forms with him and that this was on the same day as the discussion about the IRC Decision. Mr Wilson said that he had spent some 15 hours treating the Applicant for a mental disorder in 2018. He said that the term was his wording and that he had not disclosed this to the Applicant. Mr Wilson gave evidence that the Applicant had no higher risk than an ordinary member of the public who had no PTSD. He said that the Applicant's history with firearms provided him with a greater respect for weaponry and this counterbalanced the PTSD so that there was no higher risk. Mr Wilson gave evidence that he believed that the risk posed by the Applicant was low to no foreseeable risk and that he could only assess this on what the Applicant was currently doing. He stated that he was aware of others with PTSD who still had their firearms licence. 11. Nicole Ward then gave oral character evidence on behalf of the Applicant in accordance with her statement (exhibit A3). Ms Ward is a police officer but was giving evidence in her private capacity. In her statement, she said that she had known the Applicant since 2018 through their work as police officers in a remote part of the state. They spent time outside of work and that when socialising, they would have alcoholic drinks in the evening, during and after dinner. She said that she had never had concerns with the Applicant and that it was evident that the Applicant holds the values of justice and fairness to a high importance. 12. Ms Ward referred to the Applicant's participation in clay target shooting events and that his behaviour was measured and safety conscious. She said that it was an activity he enjoyed sharing with friends and was one of the key things that he found enjoyable and was a positive social interaction for him. She was aware through regular phone contact of work issues that were affecting him and of the suspension of his firearms licence and the seizure of firearms. Even though he objected to them being seized, he had followed the correct procedure and was co-operative. In her statement, she describes the Applicant as a logical person who makes well thought out decisions respecting the rules, laws and rights of others. Regarding the Applicant's access to firearms, Ms Ward stated that no situation or conversation had ever caused her to be concerned about the safety of others, or that of the Applicant. 13. When questioned by the Applicant she confirmed that she was aware of the domestic violence allegations made against him. She said that there were no criminal charges involved and that she had discussed the matter in detail with him during the course of their friendship. In cross-examination she said that she had not read the IRC Decision itself but knew of the allegations in depth from what the Applicant had told her. She was aware that there was an application made for an AVO but that it had been withdrawn and that criminal proceedings were never initiated. She expressed the view that if evidence had been available, then they would have. She did not know why the AVO had been withdrawn. 14. When asked by Mr Zoppo whether it would affect her view of the Applicant if the matter was more serious than had been recounted to her, she said "no, not necessarily". She said that she was a good judge of character in work and social settings and that people could make allegations but that she still stands by what she said in the character reference. When Mr Zoppo put some of the findings in the IRC Decision to her in relation to the bath incident, she said that even if it she accepted the allegation was made out, it did not affect her view of the Applicant and she found him to be of the highest character. In re-examination by the Applicant, she was asked if people change, and she replied "absolutely". She said that the Applicant had never been aggressive or violent towards her and that she would not be a friend to anyone who acted that way. 15. Dr Rachel Clancy gave evidence on behalf of the Applicant in accordance with her character reference (exhibit A5). Amongst other academic qualifications, Dr Clancy holds a Doctor of Philosophy in Conservation Genetics. She is also the holder of a NSW Firearms Licence Category AB. Dr Clancy has known the Applicant for over 20 years during which time, she considered him a good friend, and even though they were not in contact for the entire period, had maintained their friendship. She had recently reconnected with the Applicant and at the time of the hearing had been in a relationship with him for 12 months. She had been present with the Applicant whilst he was shooting at her family's property. She always felt extremely safe as the Applicant demonstrated a safe and responsible approach to handling firearms and she had no hesitation in being around him and firearms. 16. As the Applicant's partner, she had developed an intimate understanding of his PTSD diagnosis and its effect on his daily life. Even with PTSD, she said that the Applicant would be one of, if not the most, considered and level-headed persons that she knew. In her reference she gave an example where her father had asked the Applicant to euthanise a sick sheep as he was a better shot. The Applicant had calmly declined as his licence had been revoked. Dr Clancy referred to the Applicant's involvement in competition shooting and his membership of several clubs. She had discussed the benefits to his well-being and seen the negative impact that being denied had on his mental health and well-being. Dr Clancy stated that she had no cause for concern in relation to his consumption of alcohol and that he had not demonstrated any behaviour that she would consider to be aggressive, hostile or violent. She had not seen, and was not aware, of him undertaking activities such as driving or using firearms whilst under the influence of alcohol. In her reference, she stated that she had absolutely no hesitation in unequivocally saying that he is not a risk to himself or to others. 17. In her oral evidence, Dr Clancy stated that she had become aware of the allegations raised in the IRC at the time through the local paper. She had had a conversation with her mother who told her what was in the paper. She scoffed at it and thought that he had hooked up with a real winner, a liar or that she had been the violent one. Dr Clancy said she found the allegations hard to accept. She had never seen any aggressive behaviours from the Applicant. In relation to alcohol use, she confirmed that she had recently been working from the Applicant's home. She said that she finished work at 5 pm and that he had his first drink around that time. He generally had around six or so drinks over the course of the night up until around 1 am. The Applicant generally drank light beer or a whiskey or two using a standard shot. The whiskey was generally mixed with soda or coke in a tall glass and was rarely straight. The Applicant was never hung over. 18. In cross examination by Mr Zoppo, it was put to Dr Clancy that she was not accepting the truth of the allegations before the IRC. She said that at the time, no. She now knew of the findings of the IRC but found it very difficult to accept them. She said that she had no cause to even contemplate that he was capable. Dr Clancy was asked that if he had done these things, would that change her opinion of him, and she again said that she does not think that he is capable. 19. Luke Glasgow also gave evidence on behalf of the Applicant in accordance with his character reference dated 25 July 2021 (exhibit A4). Mr Glasgow lives in Queensland, holds a number of academic qualifications, has worked in various roles as an accountant and is currently the Financial Controller of an international software company. Mr Glasgow is a current member of the Gold Coast Clay Target Club and the Gold Coast Pistol Club. He has a Queensland firearms licence category AB and is in the process of applying for his category 'H" licence. He regularly attends both clubs for practice and competition. 20. In his reference, Mr Glasgow states that he has known the Applicant since their senior year of high school in approximately 1994. Even though they have lived in separate locations, they remain close friends and have at least weekly phone conversations, frequent text-based messages and when possible visiting each other at their homes. Through discussion with the Applicant, he is aware of the action taken by NSW Police in relation to the Applicant's licence and personal property. He has observed the detrimental impact, including a decline in the Applicant's mental well-being, cost to him socially by limiting his preferred activities and social networks together with the financial cost of maintaining memberships that he cannot use. 21. The Applicant contacted him on the night before his firearms licence was suspended. He was emotionally upset and when asked why he thought the action was being taken, the Applicant said "It's what they do. They've done it to others. If you speak up or seek help. You get punished". The Applicant told him that "I can't see how it's related to any complaint. They haven't told me what the complaint is. So, I doubt it's related. And they can't be too concerned for my welfare. They've given me 24 hours' notice before taking any action". Despite his concern, the Applicant had advised that he had packed the firearms and ammunition as he wanted an orderly handover, to minimise time and inconvenience, and to demonstrate ongoing compliance. 22. In his reference, Mr Glasgow stated that the Applicant telephoned him the following evening and it was evident that he was upset and explained that the felt he was being punished and that he was not able to enter various upcoming competitions and see familiar friends and acquaintances through his regular attendance at the gun clubs. Mr Glasgow said that for as long as he had known the Applicant, he had been a member of various gun and shooting clubs and had spoken with him about the benefits of this membership. Since the police action, the Applicant had frequently mentioned that he misses going to the target clubs and that the lack of a consistent social club is the hardest. Mr Glasgow states that it is a "further testament to his character, and being a 'fit and proper' person, [that] he has never had disciplinary action or dispute arise from his participation in any event". 23. Mr Glasgow wrote that when shooting with the Applicant, he had conducted himself to the highest standards. He had never witnessed unsafe or concerning behaviour and had never observed him to drink alcohol prior to, or while shooting. In regards to alcohol, he had been drinking with the Applicant many times over their 20 plus years of friendship and never witnessed him to act in an inappropriate way towards others. He had never observed him to be aggressive, instigate confrontation or generally act in a manner to be a nuisance to himself or others. He had observed the Applicant abstain from alcohol due to other commitments. He said that he saw the action of the Applicant seeking medical assistance as proof of an individual taking a responsible approach to prevent and address any behaviour prior to it being a problem. He said that it "is safe to say that untreated PSD and a developing reliance on alcohol is detrimental in most circumstances. However, [the Applicant] under his own direction, has sought assistance to address his health concerns prior to any possible incident. My understanding is that he now has several medical professionals who also attest to this fact". 24. Mr Glasgow refers to the Applicant as "a strong role model for the community" and that he has no reservation in asserting that he is "a fit and proper person". 25. Mr Glasgow gave oral evidence and in response to questions from the Applicant said that he had been a witness in the IRC proceedings and was aware of the allegations and the details of the matter. He knew of the outcome and was still friends with the Applicant. In the 13 years since, he had never seen the Applicant act with aggression or violence and had no concerns about the Applicant using firearms. He confirmed that he had not lived in the same town as the Applicant since the 1990's but that they talk, phone and text and when work permits, visit each other's houses. Mr Glasgow confirmed he had provided a character reference for the Applicant in the IRC proceedings but had not given evidence. He stood by the Applicant and had read the full decision at the time. Mr Zoppo asked him whether taking the IRC Decision into account, he still found the Applicant to be a role model for his children, Mr Glasgow said that he did. He said that he did not agree with the findings of the IRC. When asked that if he did accept them, would the Applicant still be a person of the highest standard, Mr Glasgow said that it was a hard position to maintain. Mr Glasgow did not think that the conduct had not occurred. When asked to assume that the conduct in the IRC Decision had occurred, and whether it would change Mr Glasgow's view of the Applicant's character, he said if a person has undertaken positive steps to correct a wrongdoing, then it is possible to form a positive opinion. He said that views change on data points collected going forward over a long time and that it was his view that there were more positives than negatives. 26. In re-examination by the Applicant, Mr Glasgow confirmed that when the Applicant had been off work as a police officer, he resided with Mr Glasgow and his family for some time and the Applicant was left with the care of his children and was at home with his wife, and that there was not a single incident that caused him concern. He was aware of the IRC findings and was scathing of the allegations. When asked if the Applicant had changed as a person since then, Mr Glasgow said no, that he had been consistent. Mr Glasgow then agreed that that there had been a period of growth and that they had grown and matured together. He confirmed that they spoke weekly and that he had never observed suicidal ideation, the Applicant being aggressive or out of control and that he had no concerns about the Applicant regarding firearms 27. The Applicant gave evidence and relied upon his Affidavit (exhibit A1). In cross-examination, the Applicant denied making false statements in the various firearms application and re-application forms. He denied having been diagnosed with anxiety and depression in 2010. He said that the first diagnosis that he had ever received was in November 2020. The Applicant did not agree with the various contentions put to him by Mr Zoppo in cross-examination that he was attending Dr Reed in 2016 and 2017 for anxiety and was on medication for it. The Applicant stated that he had been taught as a police officer that you cannot make up definitions and that the term "mental illness' was defined in the Mental Health Act 2007 and that was the definition he relied upon and that he did not fit within it. He referred to the P650 form used by the NSW Police Force Firearms Registry (exhibit A2) which referred to a mental illness or a mentally disordered person within the meaning of that Act. It was put to him by Mr Zoppo that it was not the definition of mental illness in the Mental Health Act that applied to the application and re-application forms but rather the ordinary meaning of the words. It was also put to the Applicant that the P650 form specifically stated that the relevant words were as defined in the Mental Health Act but there was no such reference in the application and re-application forms in question. The Applicant said that he had been trained to use that definition and that he had done so. 28. Mr Zoppo put to the Applicant that he had been referred to Mr Wilson for a mental illness or a mental disorder in 2018. The Applicant denied this and said that he had been referred for bullying at work and that he had wanted help. It was put to him that at that time, he was off work for mental health reasons and the Applicant said that his certificate was because he was being severely bullied and was not being supported by his work. Mr Zoppo put to him that he was being prescribed anti-psychotic medication. The Applicant said that it was being prescribed to help him sleep. In response to a question from Mr Zoppo, the Applicant accepted that he had heard Mr Wilson say in evidence that he had treated the Applicant for a mental disorder. Mr Zoppo then put to him that because the applicant was suffering from a mental disorder and receiving treatment he should have ticked 'yes' in the 2019 re-application form. The Applicant said that he was never presented with that diagnosis. 29. In relation to the references to anger and irritability in the medical records, the Applicant indicated that it never manifested itself in a physical way. He gave evidence that he had improved with help from Dr Adesanya. The Applicant agreed that he was on various medications. He said that he drank more when anxious and although it may be at an unhealthy level, he did not forget what had occurred when drinking, did not have blackouts and did not ever wake up hung over. He stated that it was difficult to completely stop and that he needed closure in relation to his employment and these matters. The Applicant said that his claim had been accepted but that he was not sure whether it needed to be referred to a Panel and there were a few more steps to go. When questioned about the IRC Decision, his evidence was that he had returned to work as a police officer, been given firearms and had been promoted. Respondent's submissions 1. The Respondent provided written submissions and relied upon the following grounds to submit that the licence revocation should be affirmed: 1. It is not in the public interest for the Applicant to hold a firearms licence based on the findings of misconduct in the IRC Decision particularly the acceptance of the evidence of five separate incidents of domestic violence committed by the Applicant. 2. In that regard, the Applicant is also not a fit and proper person to hold a firearms licence. 3. It is not in the public interest for the Applicant to hold a firearms licence on the basis that the Applicant is recovering from PTSD and Alcohol Use Disorder and there is no evidence to suggest that he has recovered or is working on recovering from these diagnoses. 4. It is not in the public interest for the Applicant to hold a firearms licence on the basis that the Applicant provided false and misleading information in connection with his firearms licence application, and 5. In light of the above, there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms. 1. The Respondent's written submissions refer in detail to the IRC Decision and to the findings of Sams DP. The Respondent submitted that the Tribunal should consider and place weight on both the evidence of the Applicant's former partner and the findings of the IRC. The IRC made findings of fact that on the balance of probabilities, her evidence of the serious domestic violence incidents was accepted and Sams DP made quite scathing comments about the Applicant's character. The Respondent submitted that the findings support that the Applicant had: * Been intoxicated in at least four out of five of the domestic violence incidents. * Each of the five incidents was quite serious and involved actual or threats of harm to himself or to his former partner. * During incident four, his former partner said that the Applicant was "getting violent again" and was talking about suicide. * There is a suggestion that the Applicant spoke 'occasionally' about suicide and even the method of suicide, ie by hunting accident or an overdose of Valium. * The Applicant demonstrated the characteristics of a domestic violence perpetrator, and * The Applicant "would say, or do, almost anything, no matter how absurd or outrageous to deflect attention from his own behaviour and conduct". 1. It was submitted that the conduct of the Applicant as found by Sams DP, casts a significant question mark as to whether the Applicant is a fit and proper person to hold a firearms licence and can be trusted to have possession of firearms without danger to public safety or the peace. Further, the Applicant had threatened self-harm either as a tactic of manipulation or had actually contemplated self-harm in the past and the use of a firearm to do so. Although there is no evidence that suicide had been attempted, it was submitted that the Tribunal may not be satisfied that the Applicant is fit and proper on the basis that he may not personally exercise continuous and responsible control over firearms because of his intemperate habits or being of unsound mind under s11(4)(c) of the Act. 2. The Respondent submitted that it is not in the public interest for the Applicant to have a firearms licence and in the interest of public safety, a person who is found to be a domestic violence perpetrator should not hold a firearms licence. The conduct of the Applicant that occurred while the Applicant was intoxicated should be given significant weight. Further, the Applicant's current diagnosis of Alcohol Use Disorder and the consultation notes from his most recent appointment with his general practitioner, suggests that he has not overcome his struggle with alcohol. In his oral submissions, Mr Zoppo submitted that the IRC Decision was a damning report but conceded that it was some time ago and that it was a matter for the Tribunal as the weight to be given to it. 3. The Respondent referred to the extensive medical evidence before the Tribunal and to the Applicant's medical diagnoses which appear to be ongoing and that he is still receiving treatment. It was submitted that the only two professionals who have addressed the Applicant's suitability for a firearms licence are Mr Wilson and Ms McInerney and the Respondent was not aware of any written opinion or report by Dr Reed, Dr Elliot-Rudder or Dr Adesanya which supports the Applicant's suitability for a firearms licence. 4. It was submitted that Ms McInerney's opinion is not a medical opinion and is not supported by medical opinion and contradicts the self-assessment results carried out by her. She is not able to provide an opinion on how the Applicant behaves under the influence of alcohol and has not considered any evidence in the IRC Decision that he had been violent when intoxicated. The Respondent submitted that Mr Wilson's reports provide very little discussion on the Applicant's alcohol use and whilst he acknowledged the diagnosis of Alcohol Use Disorder, he still provides support for the Applicant's psychological capacity to retain his firearms licence. The Respondent submitted that the ongoing diagnosis of Alcohol Use Disorder creates a reasonable cause to believe that the Applicant may not exercise continuous and responsible control over a firearm because of the Applicant's intemperate habits and the Tribunal cannot be satisfied that there would be virtually no risk to public safety if the Applicant were to be granted a firearms licence. 5. It was also submitted that it was difficult to reconcile Mr Wilson's assessment of the risk posed by the Applicant, namely that the Applicant's depression, anxiety and stress were at severe population levels and that the Applicant's levels of hopelessness and avoidance were severe. The Respondent also makes reference to the reports by the Applicant to medical professionals that he feels angry and irritable. The Respondent submitted that given the ongoing treatment of the Applicant's PTSD, anxiety and Alcohol Use Disorder, it is premature for the Applicant to have his firearms licence reinstated. 6. The Respondent made reference to the Applicant's firearms licence re-applications and submitted that on a number of occasions, the Applicant had answered "no" to questions in relation to treatment for mental health issues. It was submitted that in so doing, the Applicant had provided false and misleading information in a material particular and that on this basis, his firearms licence should be refused. The Respondent's written submissions note that Mr Wilson and the various character references do not make reference to the IRC Decision and accordingly, should be treated with caution. It was also submitted that various reports and the character references refer to the Applicant's enjoyment of the sport of shooting and the social contact that it afforded. The Respondent submitted that the social purpose for which the Applicant seeks a firearms licence is not relevant and that it is not in keeping with the objects of the Act to allow the Applicant to have a firearms licence in light of the Applicant's ongoing diagnosis of Alcohol Use Disorder and the incidents of domestic violence recorded in the IRC Decision. Applicant's submissions 1. In his written submissions in reply, the Applicant refers to the Respondent's reliance on the IRC Decision from December 2009 and submits that it is disingenuous given that following the IRC Decision, the Respondent supplied him with firearms and ammunition as part of his role as a police officer. The Applicant submitted that his firearms licence was not suspended nor his firearms seized at the time of the IRC Decision. The Applicant submitted that he accepted the findings in the IRC Decision but that the findings should be given limited weight as he was a different person at that time. 2. The Applicant referred to the Respondent's reliance upon the medical diagnoses and submitted that the Respondent had not provided a single example where the diagnoses showed a threat to public safety and that there was no incident of failing to provide continual control over his firearms. The Applicant submitted that the case law shows that a diagnosis alone is insufficient to justify the revocation of a firearms licence and that the Respondent was seeking to discount psychological experts supporting that the Applicant was not a threat to himself or to others and to instead rely on medical reports and notes made for a purpose other than this Tribunal. The Applicant submitted that the Respondent's submission that there is no evidence that he is working on recovering from the diagnoses is without merit and that he is receiving regular support from a doctor, a psychiatrist and a psychologist and there is a level of improvement. 3. The Applicant submitted that the evidence from Dr Clancy would provide strong indication that he is not violent when drinking and that there has not been any evidence of any injury to her or to anyone else. The Applicant submitted that he did not have memory loss and it was not the case that he would be unable to remember if he had injured someone. The Applicant submitted that the Respondent makes claims of long term alcohol abuse but that at no stage was he unable to perform his duties due to alcohol and that following the incidents referred to in the IRC Decision, he was promoted several times. He submitted that the Respondent is unable to raise any alcohol related issues since 2007 and that raising his concerns about his drinking with his doctor does not indicate intemperate habits but rather shows a level of honesty and self-awareness. 4. The Applicant submitted that the Respondent has discounted the major difference in his case to other matters that have come before the Tribunal, in that the firearms licences in those matters were seized in relation to specific incidents whilst they were heavily intoxicated. In his case, the justification involves incidents 13 years ago and the Respondent is unable to link any recent incident, either in the course of him employment or privately where he undertook any utterance or act that would indicate he could not maintain safe and continuous control of firearms. 5. The Applicant submitted that it is pure conjecture for the Respondent to submit that the Applicant's treating medical practitioners were not aware of the IRC Decision and that their opinion would be different if they had. The Applicant submitted that if the Respondent questioned the professional opinion of Ms McInerney and Mr Wilson, it was contingent upon the Respondent to provide their own expert evidence. He submitted that there is no evidence of any medical diagnosis in 2010 that could be relied upon to support a false statement in his application for renewal of his firearms licence in 2012 and that there was insufficient evidence to support him making false statements in relation to subsequent renewal applications. He submitted that his character referees were aware of the IRC Decision and that there is no medical evidence that he is aggressive, hostile or violent and whilst it may well be that he is drinking above the accepted healthy levels, the opinion of his character referee, Dr Clancy, it is not at a level that is causing her concern. The Applicant referred to the benefit that he would gain from having a firearms licence and that this was a relevant matter to be taken into account by the Tribunal. The Tribunal should accept the professional opinion of psychologists McInerney and Wilson, as the only expert evidence before it. As such, the Applicant submitted that the decision under review should be set aside. Consideration 1. As referred to above, the Respondent relies on five separate grounds for the contention that the Applicant's firearms licence revocation should be affirmed. The grounds can be separated into three general categories for consideration: 1. That the Applicant is not a fit and proper person to hold a firearms licence, 2. That it is not in the public interest for the Applicant to hold a firearms licence, and. 3. That there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of his intemperate habits or being of unsound mind. Fit and proper person 1. Section 24(2)(c) of the Act provides that a licence may be revoked if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence. 2. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30]. In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] BSWADT 254, [22]. 3. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. In his written submissions, the Applicant also made reference to the findings of the Law Enforcement Conduct Commission (LECC) in relation to an officer who was an Inspector at Albury between 2005 and 2008 and that it was open to the Tribunal to consider this information in relation to the weight to be given to the findings in the IRC Decision. The LECC findings are not in evidence and accordingly I have not taken them into account in considering the IRC Decision or the weight to be afforded to it. 2. The IRC Decision was handed down on 16 December 2009 following a hearing conducted over five days in which both parties were legally represented and provided written submissions. Sams DP had the benefit of seeing the various witnesses in the proceedings give evidence and be cross examined. The findings in the IRC Decision were not challenged by the Applicant in these proceedings. Accordingly, I accept the findings of Sams DP as set out in the IRC Decision. The Applicant conceded in his written submissions that the allegations in the IRC Decision "were not minor". The Respondent submitted that each of the five incidents was "quite serious" and involved actual or threats of harm to the Applicant or to his former partner. I find that the Applicant's conduct in the five incidents that were sustained by Sams DP are objectively serious and involved threats of harm or actual harm to either the Applicant or to his former partner and can be characterised as domestic violence. I accept Sams DP statement in the IRC Decision at [358] that "It cannot be passed without noting that the consumption of alcohol was a precursor in at least four of the five incidents in which actual physical violence was involved. The applicant himself described his condition in three of the five incidents as being 'moderately intoxicated'." 3. The IRC Decision raises significant concerns about the character and conduct of the Applicant at that time. Sams DP found that the evidence of his former partner was to be preferred to that of the Applicant whenever there was a conflict and that the five allegations made against the Applicant were sustained. He found that the Applicant's conduct breached both the New South Wales Police Force's Code of Conduct and Ethics and the New South Wales Police Standards of Professional Conduct. A number of specific comments by Sams DP have been referred to in the Respondent's written submissions. The conduct the subject of the allegations leading to the IRC Decision took place between January 2005 and February 2007 and the IRC Decision itself was handed down in December 2009. Section 63 of the ADR Act requires the Tribunal to decide what the correct and preferable decision is having regard to the material then before it. Given the significant amount of time that has elapsed since the findings in the IRC Decision, the Tribunal must now have regard to all of the evidence of the Applicant's conduct, character and reputation, including in the period following that decision. 4. The IRC Decision relates to an internal police disciplinary matter and it is made clear at [5] that the Respondent had not lost confidence in the Applicant such as to warrant his dismissal. The consequence of the IRC Decision was to confirm the Commissioner's order that the Applicant be transferred to the Wollongong LAC. The evidence establishes that the Respondent did not take action immediately following the IRC Decision to revoke, or seek to revoke, the Applicant's firearms licence or his access to firearms on the basis of the IRC Decision, or indeed on any basis. To the contrary, the Applicant continued as a police officer on full duties and in that role he had access to firearms until he went on sick leave in August 2020. In addition, he held a personal firearms licence from 1998 until it was suspended on 25 August 2020 and then revoked on 22 March 2021.That revocation is the subject of this application. There is no evidence of any complaints or issues with the Applicant's use or possession of firearms, either as a police officer or during the time that he held a firearms licence. Given the significant amount of time following the IRC Decision that the Applicant used and possessed firearms without incident, it is clear that he caused no danger to the public safety or the peace during that time. 5. There is no evidence before the Tribunal of any criminal convictions or criminal findings against the Applicant, or of any other disciplinary findings against him. The Applicant's Individual Profile (exhibit A6) demonstrates that the Applicant has been a serving police officer since December 2001 and has progressed through various ranks to become a Sergeant, and has also acted in a number of more senior positions. The Applicant has received a number of awards, both before and after the IRC Decision, including the Commander's Commendation in 2013. I accept the Applicant's submission that he has not had contact with his former partner since 2009 and that at the time of the hearing in this matter, he has been in a relationship with Dr Clancy for some twelve months. 6. Dr Clancy gave character evidence on his behalf, as did Ms Ward and Mr Glasgow. The evidence of the character witnesses must be approached with some caution, given the doubts expressed by each of them about the findings contained in the IRC Decision. However, I accept their evidence that they have not seen the Applicant act in a violent or aggressive manner or held any concerns about his use and possession of firearms. There have been no further domestic violence incidents nor is there evidence of any matters involving violence. 7. Whilst the findings of the IRC Decision in December 2009 raise significant questions in relation to the Applicant's fitness and propriety at that time, almost 12 years have passed between the making of those findings and the hearing of this application and the Applicant continued to serve as a police officer and to hold a firearms licence until it was suspended in August 2020 due to his health issues. I am satisfied that having regard to the Applicant's conduct since the IRC Decision that the Applicant is a fit and proper person to hold a firearms licence. I will further consider the references to the Applicant's consumption of alcohol under the public interest ground below. Public Interest 1. The Respondent relies upon the following in support of its contention that it not in the public interest for the Applicant to hold a firearms licence: * That the Applicant provided false and misleading information in connection with his firearms licence applications. * That the Applicant is recovering from PTSD and Alcohol Use Disorder. * The findings in the IRC Decision, particularly the acceptance of the five incidents of domestic violence committed by the Applicant. 1. The "public interest" allows a consideration of issues going beyond the character of the Applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16. 2. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The Tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The Applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety. 3. In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [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. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130]. 4. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" at [7]. 5. Other cases have pointed out that 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, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74]. False and misleading information 1. The Respondent relies on the following forms completed by the Applicant: 1. A P659 form for a firearms licence re-application signed by the Applicant dated 19 July 2012 (the 2012 re-application form), 2. A P659 form for a firearms re-application signed by the Applicant on 14 July 2017 (the 2017 re-application form) 3. A P561 form for a licence application signed by the Applicant on 14 December 2017 (the 2017 application form) 4. An electronic P659 form for a firearms re-application submitted by the Applicant on 14 July 2019 (the 2019 re-application form). 1. These forms are contained in the s 58 documents (exhibit R1) and the Respondent relies upon the Applicant answering "No" in each of the relevant forms to the question, "in NSW or elsewhere…Have you ever attempted suicide or self-harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?" The Respond contends that for each of the forms, the Applicant's response was false and misleading. In relation to the 2012 re-application form, the Respondent relies on the Applicant having been diagnosed with depression and anxiety in 2010 and that as a consequence he should have answered "Yes" to the relevant question. The Respondent based this contention on a note relating to pre-existing factors in a series of Certificate of Capacity Forms completed by Dr Elliott-Rudder and contained in the Commissioner's Bundle of Evidence (tab 8 of exhibit R2). Dr Elliott-Rudder did not give evidence in these proceedings. The Applicant submitted that he had not been diagnosed with depression and anxiety in 2010 and there was insufficient evidence to show that he had. He further submitted that even if he had received such a diagnosis in 2010, it would not have occurred in the 12 months prior to him completing the 2012 re-application form. 2. I accept this submission and find that the only evidence for such a diagnosis relates to 2010. The Applicant signed the 2012 re-application form on 19 July 2012, and consequently any diagnosis in 2010, even if it could be established on the evidence, would not have been made in the past 12 months. Accordingly, I find no evidence of the Applicant providing false or misleading information in the 2012 re-application form. 3. In relation to the 2017 re-application form and the 2017 application form, the Respondent relies on the Applicant's Patient Health Summary (Patient Health Summary) from the Ochre Health Medical Centre Brewarrina (tab 16 of exhibit R2)). The Respondent submitted that given the references in the Patient Health Summary to reports of anxiety disorder in 2016 and 2017 and the prescriptions for medication to treat anxiety, the Applicant should have answered 'Yes' to the relevant questions in both the 2017 re-application form and the 2017 application form and that by answering "No", the Applicant's response was false and misleading. The Applicant denied this. In cross-examination in relation to his mental health, the Applicant said that the first diagnosis that he had ever received was in November 2020. The Applicant did not agree that he had been attending Dr Reed in 2016 and 2017 for anxiety and that he was taking medication for anxiety. The Applicant gave evidence as to his understanding of the term "mental illness" and that he had answered the questions in the various forms having regard to that understanding. 4. Under the heading "Consultation" and "Surgery consultation" in the Patient Health Summary there is a typed entry by Dr Reed relating to a visit by the Applicant on 25 May 2016 that appears to be his first visit to that practice. There are a number of further entries from Dr Reed and Dr Andrew Montgomery. Neither gave evidence in these proceedings. The Patient Health Summary contains scant details of the relevant consultations, generally including no more than a record of the date of the visit, the recording doctor and the date of the record, together with occasional brief notes, the reason for the visit and the action. As an example, the detail of the Applicant's consultation on 16 November 2016 with Dr Reed consists of the following: "needs further medication keeping settled on Citalopram is also giving up smoking needs NIcabate patches is doing quite well with cessation overall Reason for visit: Anxiety disorder Smoking cessation" 1. The action records prescriptions being printed for Escitalopram and Nicabate. It is not apparent from the record whether the reference to "needs further medication" is a request by the Applicant or is a medical opinion from Dr Reed. The entry refers to "Citalopram" but there is no reference to this medication elsewhere in the Patient Health Summary and it is a prescription for Escitalopram that was printed on that day. There is no further detail in relation to the reference to anxiety disorder being the reason for the Applicant's visit. There are entries elsewhere in the Patient Health Summary to the Applicant being on medication for "anxiety well controlled" and also "stress" and "work stress". Having regard to the lack of detail in the Patient Health Summary and in the absence of evidence from Dr Reed and Dr Montgomery, I do not find that the evidence in the Patient Health Summary is sufficient to establish that the Applicant had been referred or was being treated for a mental or nervous disorder or illness during the relevant period. Accordingly, I do not find that the Applicant provided false information in either the 2017 re-application form or the 2017 application form. 2. The Respondent submitted that at the time the Applicant completed the 2019 re-application form on 14 July 2019, he had been referred to, and received treatment from, Mr Wilson for an Adjustment Disorder in the past 12 months. The Respondent submitted that the Applicant should have answered "Yes" to the relevant question and that by answering "No", the Applicant's response was false and misleading. The Applicant was first referred to Mr Wilson by Dr Reed on 18 April 2018. The referral from Dr Reed states that the Applicant would like to consult Mr Wilson to "obtain some psychological support to help deal with the vicissitudes of life as a policeman" (tab 14 of exhibit R2). I have previously outlined the evidence given by Mr Wilson and the Applicant in relation to the Applicant's treatment in 2018. 3. It is clear from the evidence of Mr Wilson, that he treated the Applicant from 14 May 2018 to 25 October 2018 for a mental disorder, namely for an Adjustment Disorder with anxiety and depressed mood. It is clear that at least in part, this took place in the 12 months prior to the Applicant completing the 2019 re-application form on 14 July 2019. However, the evidence of Mr Wilson was that the diagnosis was never disclosed to the Applicant and the evidence of the Applicant was that he was seeing Mr Wilson during this time in relation to workplace bullying and that he was unaware of any diagnoses or that he had a mental disorder. Having regard to this evidence I find that in answering 'No' to the relevant question in the 2019 re-application form, the Applicant was not aware at that time that he had a mental disorder or that he had been treated for one in the past 12 months. Accordingly, I do not find that the Applicant's` response in the 2019 re-application form was false or misleading. Having made this finding, I do not need to consider the Applicant's explanation as to his understanding of the words in the various forms. PTSD, Alcohol Use Disorder and IRC Decision 1. The Respondent submitted that it is not in the public interest for the Applicant to hold a firearms licence on the basis that he is recovering from PTSD and Alcohol Use Disorder and there is no evidence to suggest that he has recovered or is working on recovering from these diagnoses and that it is premature for the Applicant to have his firearms licence reinstated. The various notes, correspondence and reports before the Tribunal (part exhibit R2) including from Dr Elliott-Rudder, Dr Adesanya, Dr Sidorov, and Ms McInerney, together with the evidence of Mr Wilson, establish that the Applicant currently meets the diagnostic criteria under DSM-5 for PTSD and Alcohol Use Disorder. This was not in contest between the parties. As at the date of the hearing, the Applicant had not been fit for work since August 2020 and Mr Wilson gave evidence that the Applicant was continuing to receive treatment for these disorders. 2. On this basis, I reject the Respondent's submission that there is no evidence to suggest that the Applicant is working on recovering from these diagnoses but find that as at the date of the hearing, the Applicant has not recovered from PTSD or Alcohol Use Disorder. The primary issue in contention is whether or not as a consequence of these current diagnoses it is in the public interest for the Applicant to hold a firearms licence. As held in Webb, the Tribunal is "to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration" at [32]. 3. In his Affidavit (exhibit A1), the Applicant refers to Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT185 and whilst he accepts that the Tribunal found in that case that a diagnosis of PTSD can be considered as "unsound mind" under the Act, he sought to distinguish his case from Sweet on the basis of the opinion expressed by the treating practitioners in each matter. The Tribunal in Sweet made reference to the underlying principle in s 3(1)(a) of the Act that confirms firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety. In considering the meaning of "unsound mind" in the Act, the Tribunal held at [27] that: The term "unsound mind" must be interpreted in the context of this principle. To be of "unsound mind", a person's mental condition must at least have the potential to put public safety at risk if that person has the possession or use of a firearm. One of the symptoms of post traumatic stress disorder as outlined in diagnostic criteria in DSM-IV, is "irritability or outbursts of anger". Taking into account these findings, post traumatic stress disorder fits within the definition of "unsound mind" in the Act. 1. The Applicant was first diagnosed with PTSD and Alcohol Use Disorder on 19 August 2020 by Dr Elliott-Rudder. The notes from that consultation (tab 5 of exhibit R2) record the following: "not sleeping, 2 hours of sleep at night Nightmares Angry all the time Irritable Isolating from friends Breaking down in tears Drinking heavily 30 -50% bottle of spirits per night, 8-12 standard drinks Nothing to look forward to Flashbacks to dead bodies…" 1. In her report to the Respondent's insurer, EML dated 26 August 2020 and headed "Initial Medical Report Regarding Workplace Injury" (tab 6 of exhibit R2), Dr Elliott-Rudder writes that "it is my understanding that symptoms predate the workplace risk management action due to a complaint, and that the complaint relates to irritable behaviour by Steven in the workplace….In my opinion the psychological injury is associated with irritable behaviour symptoms which could put Steven at risk of actions that may lead to such a complaint. In my opinion this is also a risk in a person who is accustomed to continuing work without seeking medical help for psychological symptoms". Dr Elliott-Rudder's notes of the consultation (tab 5 of exhibit R2) on 30 September 2020 include "Angry, teary at times, social anxiety, irritable" and "Guns removed when submitted claim, feels this action is inconsistent with level of mental health concern". On 13 January 2021, the notes include "No feedback from Leanne McInerney Wants to change to Darren Wilson psychologist Ex-military, used to see him in Brewarrina, approved by W/C, can see 5/2. Very frustrated about need for firearms use support Furious about being harassed about this by work". On February 10 2021, "not so good today Argument yesterday with firearms registry Leeanne has written a letter to approve registration, received 15 January. Licence currently suspended, Guns are all being stored at police station. Missed annual shoot at the gun club". On 21 July 2021, the notes include reference to "distressed and angry about NSW Police being unsupportive towards him and also persisting in refusing to follow the advice of psychologist and treating doctor about his firearms licence for social interaction/hobby". 2. I find that the Applicant's diagnosis of PTSD fits within the definition of "unsound mind" in the Act. Whilst the reference to 'unsound mind' relates to the reasonable cause ground in s 11(4)(c) of the Act, it is also relevant to the consideration of whether it is in the public interest for the Applicant to hold a firearms licence, given that his current diagnosis of PTSD at least has the potential to put public safety at risk if the Applicant has the possession or use of a firearm. The Applicant seeks to distinguish the case on the basis that Mr Sweet was arrested for a violent incident and evidence was provided by Dr Law (Mr Sweet's treating psychiatrist) that he was not confident that Mr Sweet should be given unrestricted access to firearms. Although the facts and medical evidence differ between the cases, this does not affect the Tribunal's interpretation of the phrase "unsound mind'. 3. Similarly, whilst the Applicant did not contest the diagnosis of Alcohol Use Disorder, he did contest that his use of alcohol amounts to "intemperate habits" under the Act. In his Affidavit, the Applicant refers to Rodgers v Commissioner of Police, New South Wales Police Service [2001] NSWADT 167 [24], where the Tribunal held that it "is clear that to fall within s 11(4)(c) it must be demonstrated that there is a disposition or tendency to consume immoderate amounts of alcohol. A single incident of drunkenness does not of itself establish a disposition or tendency towards intemperate habits. This provision is clearly concerned within patterns of conduct, not isolated incidents." The Applicant submitted that his 'normal' liver function test in December 2020 did not support that he was of intemperate habits and indicated that he did not have long term alcohol addiction. In the absence of any medical evidence relating to such a test in the context of the Applicant's diagnosis of Alcohol Use Disorder, I give no weight to this submission. The Applicant also submitted that the medical evidence from Ms McInerney does not support him being of intemperate habits. Ms McInerney did not give evidence in the proceedings but her undated report (tab 9 of exhibit R2) makes it clear that she is not a medical doctor and does not express a medical opinion. Her report will be further considered below. The Applicant's evidence was that there are no occurrences where he attended work intoxicated, been detected driving a vehicle intoxicated or handled a firearm whilst intoxicated and submitted that there were no grounds to support a finding of "intemperate habits". 4. Dr Elliott-Rudder records in her referral of the Applicant to Dr Adesanya on 26 August 2020 (tab 2 of exhibit R2) that the Applicant reports "excessive alcohol use dating back to two workplace incidents approximately six months ago". As referred to above, her notes of the consultation on 9 August 2020 include the Applicant "Drinking heavily 30 -50% bottle of spirits per night, 8-12 standard drinks". Dr Adesanya's report dated 11 November 2020 (tab 4 of exhibit R2) states that the Applicant "has a long history of intermittent bingeing on alcohol which worsened after the assault incident. He continues to self medicate his traumatic stress symptoms with alcohol". In the AUDIT Alcohol Screening Tool completed by the Applicant and emailed to Ms McInerney on 27 November 2020 (tab 12 of exhibit R2), the Applicant scored 21. The form indicates that a score on this Tool above 13 is considered to be "high risk". Under the heading "ALCOHOL: Guide for Intervention & Feedback", there is a dot point stating "Caution: if the score is 13 or over advise client to seek medical advice before they make any changes to their alcohol consumption. This is due to the risk of medical complications such as seizure and death from alcohol withdrawal in people who are dependent on alcohol". In response to question 4 "How often during the last year have you found that you were not able to stop drinking once you had started", the Applicant has responded "Monthly". 5. In his medico-legal psychiatric report dated 3 December 2020 (tab 18 of exhibit R2), Dr Sidorov records in the Applicant's substance use history that the Applicant "had recently decreased his drinking after he started seeing a psychologist; prior to that he was drinking about 10 standard drinks or half a bottle of scotch every night and had been doing that for the preceding six or 12 months. Prior to that, it was more binge pattern drinking in social situations once or twice per week…He currently drinks three to four standard drinks per night." Under the heading "Summary and Opinion", Dr Sidorov opines that "[the Applicant] also meets the diagnostic criteria for Alcohol Use Disorder, as per DSM-5, which has been particularly a problem with him in the last 12 months, although he has recently decreased his drinking. This diagnosis is based on him consuming 10 standard drinks daily for about 12 months until recently. It appears that his increase in alcohol intake is related to the distress caused by his trauma-related symptoms". In a report from Dr Elliott-Rudder to the Respondent's insurer ELM dated 9 June 2021 (tab 14 of exhibit R2), she writes that the Applicant's current "alcohol consumption is daily, with greater than six drinks on three to four days per week, hence the diagnosis of AUD remains applicable". In her most recent notes from 18 August 2021, Dr Elliott-Rudder records "Alcohol 6-8 standard drinks per night again, had a break in June but back again. Less while partner here." 6. The Applicant submitted that whilst it may well be that he is drinking above the "accepted healthy levels", in the opinion of Dr Clancy "it is not at a level that is causing her concern". Dr Clancy's written evidence is to the effect that in the past 10 months of being in a relationship with the Applicant, she has never had cause for concern in relation to his consumption of alcohol. In her oral evidence referred to above, Dr Clancy said that she had recently been working from the Applicant's home and outlined her observations of his drinking at that time. Dr Clancy is the Applicant's partner and was giving character evidence on his behalf. She is not a medical practitioner and her evidence in relation to her lack of concern is given little weight in light of the Applicant's uncontested diagnosis of Alcohol Use Disorder and Dr Elliott-Rudder's most recent notes from 18 August 2021. 7. In her character evidence, Ms Ward said that generally when socialising with the Applicant they would have alcohol drinks in the evening, during and after dinner. She stated that she had not ever had concerns about the Applicant doing anything unsafe during their time socialising. Mr Glasgow, another of the Applicant's character witnesses gave evidence that he had been drinking with the Applicant many times over their 20 plus years of friendship and had never witnessed him to act in an inappropriate way to others. He said that it "is safe to say that untreated PTSD and a developing reliance on alcohol is detrimental in most circumstances. However, [the Applicant] under his own direction, has sought assistance to address his health concerns prior to any possible incident". It is clear that a diagnosis of Alcohol Use Disorder from a number of health practitioners, taken together with the documentary material from the various practitioners, establishes the Applicant's use of alcohol as more serious than a "developing reliance on alcohol". 8. In November 2020, Dr Adesanya states that the Applicant has a "long history of intermittent bingeing on alcohol which worsened after the assault incident" and Dr Sidorov refers to prior "binge drinking". The Patient Health Summary (tab 16 of exhibit R2) includes a note from Dr Reed on 27 June 2018 relating to a consultation with the Applicant: "is bored probably drinking too much". I earlier accepted the findings as set out in the IRC Decision relating to the Applicant's acts of domestic violence against his former partner and to the statement of Sams DP "that the consumption of alcohol was a precursor in at least four of the five incidents in which actual physical violence was involved. The [Applicant] himself described his condition in three of the five incidents as being 'moderately intoxicated'." The evidence of his former partner was accepted in the IRC Decision and she described the Applicant as being "intoxicated" in relation to Incidents 1 and 5, "quite drunk" in relation to Incident 2 and "really drunk" in relation to Incident 3. During the IRC proceedings, the Applicant admitted to having drunk 10 to 12 light beers in relation to Incident 2 and 15 light beers in relation to Incident 3. 9. Dr Clancy and Mr Glasgow, and to a lesser extent Ms Ward, expressed difficulties in accepting the Applicant's conduct as found in the IRC Decision, although the Applicant himself accepted the findings. Dr Clancy said that she did not think he was capable of the conduct and Mr Glasgow said that he did not agree with the findings. This limits the weight I afford to the evidence of these witnesses when considering the public interest in the Applicant holding a firearms licence. 10. In light of the evidence referred to above and the Applicant's diagnosis of Alcohol Use Disorder, I find that the Applicant's use of alcohol also amounts to "intemperate habits" under the Act. Whilst this term is found in the separate ground in s 11(4)(c) of the Act, it is relevant to the consideration of the public interest as a pattern of consuming immoderate amounts of alcohol at least has the potential to put public safety at risk if the Applicant has the possession or use of a firearm. The findings in the IRC Decision show a link between the Applicant's consumption of alcohol in four out of the five incidents of domestic violence 11. Whilst extensive medical evidence has been placed before the Tribunal in the form of medical notes, reports and correspondence, there is no evidence from any medical practitioner either supporting the Applicant's suitability for a firearm or providing any opinion on it. I accept the Applicant's submission that the only material that specifically addresses this issue are the reports from Ms McInerney and Mr Wilson, both psychologists, together with the oral evidence of Mr Wilson. However, I do not accept the Applicant's submission that both practitioners unequivocally state that his PTSD and Alcohol Use Disorder do not adversely impact on his ability to hold a firearms licence. 12. Ms McInerney saw the Applicant for six sessions between 21 September 2020 and 22 January 2021 and prepared an undated "Mental health risk assessment for firearms licensing" (part of exhibit R1 and tab 9 of exhibit R2). Ms McInerney notes in that assessment report that she does not provide medical opinions as she is not a medical doctor and that she defers to the Applicant's medical professionals in relation to a number of questions. Ms McInerney confirms the Applicant's diagnosis of PTSD and Alcohol Use Disorder and in response to the question "How would this impairment affect their fitness to possess and use firearms", Ms McInerney opines: "There is no automatic assumption to be made regarding the fitness to possess firearms with either/both of these diagnoses. Such matters are to be taken on a case-by-case consideration. [The Applicant] reported that he has not consumed alcohol whilst at work at any time during his career no matter how stressful the work has been, and would be unlikely to do so now. The diagnosis of PTSD does not inherently carry a risk with regard to the use of firearms. Many people who have been diagnosed with PTSD have been deemed fit to use firearms. Other factors are more determinative that the actual diagnoses." 1. In relation to the question "In your expert medical opinion: Is there any risk that the customer's condition or impairment may impact on their ability to exercise continuous or responsible control over firearms", she noted that she does not provide medical opinions as she is not a medical doctor and that she also does not profess to be an expert, and has not been instructed, nor read the "Expert Witness Code" documents in relation to this case. She went on to state: "Risk is likely to be no greater or lesser than a member of the public with the same diagnoses. [The Applicant] has reported that he has never consumed alcohol whilst using a firearm or whilst working, so there is little reason to believe that he would commence doing this now. He has never attended a psychological session whilst under the influence of alcohol. [The Applicant's] personality style does not indicate impulsivity, but rather diligence, strong sense of duty, and a respect for rules and laws. PTSD itself does not inherently place a person or the public at risk of the client using a firearm; however refer to medical professional opinion." 1. In response to the question "In your expert medical opinion: Does the customer's condition or impairment have the potential to put public safety at risk if they were to have possession and use of a firearm?", Ms McInerney referred to her previous note and caveat that she was not a medical doctor or an expert and stated: "There have been no indications either current or historically that [the Applicant] would potentially place the public or himself at risk if he were to have possession of a firearm. [The Applicant] has consistently denied suicidal/homicidal ideation at each psychology session and does not have a known history of the same. He has had a firearms licence for at least the eighteen years that he has been a Police Officer. Additionally, Police are, as are military, highly trained in the use of firearm, with safety as an integral part of the training". 1. There is no reference to the IRC Decision in any of the documentary material from Ms McInerney. Ms McInerney has not treated the Applicant since January 2021 and did not give evidence in these proceedings. Taking into account these factors, and the caveats expressed by her in that report, I give little weight to Ms McInerney's opinions in that report. 2. As previously outlined, Mr Wilson supported the Applicant having his firearms licence restored and that in his view the Applicant posed low to no risk in holding a firearms licence and presented no higher risk than any member of the public. The question of whether the Applicant should have a firearms licence is a question which the Tribunal itself must decide. For this reason, I do not accept the opinions of either Ms McInerney or Mr Wilson in relation to this question as determinative of the view I should take in this matter. 3. The Applicant referred to DWH v Commissioner of Police, NSW Police Force [2019] NSWCATAD 125 and said that it had "similarities" to his on the basis that DWH had relationship issues, DWH's being current rather than past issues such as with the Applicant, and a PTSD diagnosis. I find that whilst there are similarities, there are also difference and each matter must of course be considered on its merits. The Applicant submitted that there was a suggestion that DWH could have been drinking 3.7 drinks a day, similar to the 4 to 6 drinks stated to the Applicant's doctor. DWH's treating doctors supported the return of his firearms licence and the Tribunal agreed. DWH informed the Tribunal in his matter that he purchased a carton of beer every 1 to 2 weeks during the relevant period, presumably involving consumption of 1.7 to 3.4 cans or small bottles of beer per day. On the evidence before it, the Tribunal in DWH was not satisfied that at any relevant date DWH had an alcohol dependence. 4. In contrast, Dr Elliott-Rudder records that in August 2020, the Applicant was drinking "heavily 30-50% bottle of spirits per night, 8-12 standard drinks" and that in August 2021, he was having "Alcohol 6-8 standard drinks per night again". Unlike DWH where the Tribunal was not satisfied that he had an alcohol dependence, the Applicant has a diagnosed Alcohol Use Disorder. In DWH, the evidence before the Tribunal from his psychologist was that DWH's progress in relation to PTSD symptoms was stable. There was also a report from a psychiatrist who had had treated him at least intermittently since 2013 in relation to his fitness to hold a gun licence who stated that he "has no current evidence of depression, anxiety, panic or disturbing PTSD symptoms". 5. The assessment results included in the AHRR prepared by Mr Wilson on 6 July 2021 have been detailed previously and indicate the Applicant having "severe population levels" for depression, anxiety and stress as well as his "PCL-5" score remaining at "severe level of PTSD symptomology". Mr Wilson recommended in the AHRR that "8 x 90-minute sessions are conducted as [the Applicant] aims to restabilise his elevated PTSD symptoms and recent alcohol increases following the lack of clarification with his tabled complaints against him from his Wagga Wagga NSW Police Command HQ". At the time of the hearing no further assessments had been carried out by Mr Wilson. I accept that there is no evidence of suicidal ideation. 6. The Tribunal in DWH noted a COPS event in which it was recorded that there had never been any incidents of domestic violence in the household and no threats or intimidation between DWH and his wife. The Tribunal noted that it was not aware of any attempt by DWH to harm any person, with or without a firearm. In this matter, the Applicant accepts the findings of the IRC Decision which relates to five incidents of domestic violence against his former partner and where the consumption of alcohol was a precursor in at least four of the five incidents in which actual physical violence was involved. I accept that there is no evidence of any further acts of violence by the Applicant since the IRC Decision. Conclusion 1. The Tribunal is left with a mixed picture. The Applicant has been a serving police officer since 2001 and held a firearms licence in that capacity as well as holding a personal firearms licence from 1998 until the suspension of his licence in August 2020 and the revocation in March 2021. There have been no reported issues in relation to the Applicant's use or possession of firearms and no incidents of violence since the IRC Decision. In the course of his employment as a police officer, the Applicant was diagnosed with PTSD and Alcohol Use Disorder in August 2020. These disorders are current and the Applicant continues to display symptoms of PTSD and Alcohol Use Disorder, including elevated PTSD symptoms and recent alcohol increases. The Applicant continues to receive treatment for these mental disorders, including medication. 2. The evidence from the Applicant and Mr Glasgow is that the Applicant felt that his firearms licence was suspended in August 2020 in "retaliation" or as "punishment" for the Applicant going off sick. However, the diagnoses of PTSD and Alcohol Use Disorder have been made by the Applicant's general practitioner, his treating psychiatrist, two psychologists and a further psychiatrist in the context of an independent medico-legal assessment and the Applicant meets the diagnostic criteria for both mental disorders under DSM-5. I have found that the Applicant's PTSD falls within the definition of "unsound mind" and that his Alcohol Use Disorder and alcohol consumption falls within the definition of "intemperate habits" in the Act. This has relevance in the context of the public interest as both mental disorders have the potential to put public safety at risk if the Applicant was to have possession or use of a firearm. 3. I have previously accepted the findings of Sams DP in the IRC Decision and found that the Applicant's conduct in those five incidents was objectively serious and can be characterised as domestic violence. The Applicant's use of alcohol was a precursor in four of those five incidents of domestic violence. 4. Having regard to all of the evidence, and in the absence of any evidence from any medical practitioner that addresses the Applicant's conduct in the IRC Decision, the Applicant's PTSD, Alcohol Use Disorder and evaluates the Applicant's risk in relation to holding a firearms licence, the current state of the evidence does not permit a clear assessment of risk other than to say the Applicant's history presents an appreciable risk to public safety. 5. The Applicant and his character witnesses have all expressed the view that the Applicant gains benefit from the social aspects of shooting. Mr Wilson strongly recommended that the Applicant have his firearms licence reinstated so that he can attend the gun/shooters club in Wagga for social support, competition and recreational interest. I accept that the Applicant would gain social benefit from holding a firearms licence and attending a gun club. However, as set out previously, the underlying principle of the Act is that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety and accordingly the considerations of the Applicant's private interests are outweighed by the public interest. 6. Section 24(2) of the Act sets out the reasons for which a firearms licence may be revoked, including for any reason for which the licensee would be required to be refused a licence of the same kind and if the licensee is no longer considered a fit and proper person to hold a licence. I have previously found that the Applicant is a fit and proper person to hold a licence, so I give no further consideration to that ground. Section 24(2)(d) provides that a licence may be revoked for any other reason prescribed by the regulations. Clause 20 of the Regulation provides that a licence may be revoked if the Commissioner, and in this instance the Tribunal, is satisfied that it is not in the public interest for the licensee to continue to hold the licence. 7. Having regard to the evidence and the findings that I have made, and in particular to the Applicant's current diagnoses and symptoms of PTSD and Alcohol Use Disorder, the findings in the IRC Decision and the absence of any evaluation from a medical practitioner relating to the Applicant's risk in holding a firearms licence, I am satisfied that it is not in the public interest for the Applicant to hold a firearms licence. Accordingly, the decision under review should be affirmed. I note that the Applicant is not precluded from applying for a licence in the future. Order 1. The decision under review is affirmed ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2022