Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dhu v Commissioner of Police, NSW Police Force [2023] NSWCATAD 12 Hearing dates: 26 May 2022; 4 August 2022 Date of orders: 17 January 2023 Decision date: 17 January 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decision under review is affirmed. Catchwords: Administrative Law – firearms licence – revocation - where applicant diagnosed with PTSD, depression, and anxiety – where ongoing treatment – failure to declare ongoing treatment – whether holding firearms licence contrary to the public interest – whether Applicant has a need for a firearms licence Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Firearms Act 1996 Firearms Regulation 2017 (NSW) Cases Cited: Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013, BC 200305547 Clay v Commissioner of Police, NSW Police Force [2018] NSWCATAD 49 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Constantin v Commissioner of Police [2013] NSWADTAP 16 Cusumano v Commissioner of Police [2001] NSWADT 50 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Kogias v Commissioner of Police [2020] NSWCATAD 297 LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at paragraphs [41] - [43]: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 New South Wales v Taylor (2001) 178 ALR 32 Ward v Commissioner of Police [2000] NSWADT 28 Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 Texts Cited: None cited Category: Principal judgment Parties: Dean William Dhu (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Everingham Solomons Solicitors (Applicant) Lyndsay Taylor Lawyers (Respondent) File Number(s): 2021/00219838 Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 applies to those paragraphs of these reasons identified as [Not for publication]. The information contained in those paragraphs is not to be disclosed other than to the parties and their legal advisors without further order of the Tribunal. Reasons for Decision Introduction 1. This is an application by Mr Dean Dhu ("the Applicant") for review of a decision by a delegate of the Commissioner of Police, NSW Police Force ("the Commissioner" or "the Respondent") to revoke the licence held by the Applicant under the Firearms Act 1996 ("the Firearms Act"). 2. The decision to revoke the licence was on the basis that: 1. it is not in the public interest for the Applicant to continue to hold a firearms licence; and 2. there are concerns for his mental health. 1. The Respondent determined to revoke the licence in May 2021. The Applicant has applied to the Tribunal for external review of that decision. 2. In these reasons I will limit discussion in relation to the Applicant health in order to protect the Applicant's privacy and the privacy of other individuals as far as is possible. Background 1. The Applicant was issued a Category AB Firearms licence in 2004 and he held a licence since then until the decision to revoke it in May 2021. He has been employed by the NSW National Parks and Wildlife Service ("NPWS") since at least 2006. He does not require a firearms licence for his current role in NPWS. However, he is eager to progress his career within NPWS and there are jobs within NPWS where it is desirable or required to have a firearms licence. He has been unable to apply for such jobs because of the revocation of his firearms licence. 2. The Applicant acknowledges that he has experienced periods of poor mental health and that he has received treatment for it. He concedes that he has suffered from post-traumatic stress disorder ("PTSD"), depression, and anxiety from 2008. He was diagnosed with these conditions after experiencing several very serious and traumatic events that occurred within a short space of time. 3. The Applicant has given evidence in relation to those events, as has his ex-wife, Ms Kate Dhu ("Kate"). Kate has also provided a detailed account of other instances which she contends show the state of the Applicant's mental health at various times. This will be discussed in detail later in these reasons. 4. The Applicant has received treatment from his long-term GP, Dr Okwun Ojah. Dr Ojah has treated the Applicant for anxiety and depression for more than 10 years. In 2011 the Applicant was the subject of a mental health plan to address depression. 5. In 2016 Dr Ojah referred the Applicant to a psychologist, Ms Sharon Philpott, for treatment of depression and anxiety. In May 2016 Ms Sharon Philpott reported to Dr Ojah that she had serious concerns in regard to the Applicant's mental health and a safety plan was put in place. 6. A statement dated 19 July 2016 ("the July 2016 statement") was prepared by Colin Habgood, an agent of QBE insurance, as part of an investigation into the Applicant's workers compensation claim. The statement purports to record an interview between the Applicant and Mr Habgood and records issues related to the Applicant's mental health. The Applicant denies that he ever provided the included information relating to his mental health to Mr Habgood in the preparation of the statement. However, he accepts that his signature is on the statement but he 7. The Applicant applied for the renewal of his firearms licence several times. In reapplications in 2009, 2014 and 2019, the Applicant incorrectly answered 'No" to the question: ''Have you in NSW or elsewhere 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?" 8. The Commissioner was not aware of the Applicant's mental health condition until Kate reported her concerns about the Applicant in 2021. 9. The Respondent is concerned that the Applicant's mental health presents a danger to the public, including himself. This concern arises from information provided by Kate, the July 2016 statement as well as Ms Philpott's report. Relevant legislation 1. The general principles are set out in section 3 of the Firearms Act, relevantly: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and … (2) The objects of this Act are as follows: … (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms, 1. Section 75 of the Firearms Act provides for the review by the Tribunal of a decision to revoke a firearms licence under the Firearms Act. 2. Section 63 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. The hearing is a hearing "de novo" - meaning that the Tribunal may consider the matter from the start including taking into account fresh evidence brought by either party. The Tribunal is not restricted to the consideration of the material that was before the Respondent but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. There is no presumption that the Respondent's decision is correct. 2. Section 24(2) of the Firearms Act deals with licence revocation and provides: (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 (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of 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. The Commissioner also relies on section 24(2)(b)(i) of the Firearms Act and argues that the Applicant provided false or misleading material in relation to his licence reapplications in 2009, 2014 and 2019. In his reapplications he marked the "NO" box, in reply to the question about whether he had been treated for a mental illness in the previous 12 months. 2. Clause 20 of the Firearms Regulation 2017 ("the Regulations") 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. 3. Section 11 of the Firearms Act provides for restrictions on the issue of licences: 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: 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. The term "reasonable cause to believe" in this context was considered by the Tribunal in the matter of LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at paragraphs [41] - [43]: 41 The term "reasonable cause to believe" has been considered by the courts in contexts other than those the subject of this application. For example, in the context of discovery under Order 15A, Rule 6 of the Federal Court Rules, in Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013, BC 200305547, Emmett J stated: "[10] There is no dispute as to the nature of the task that arises under r6(a). The words, 'where there is reasonable cause to believe that the application has or may have the right to obtain relief' are not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief. It is not necessary to demonstrate whether or not the applicant has the belief". 42 In New South Wales v Taylor (2001) 178 ALR 32, the High Court considered the term "no reasonable cause to believe" as it appears in s.151A(5) of the Workers Compensation Act 1987 (NSW). At [15] of the joint judgment of Gleeson CJ, McHugh and Hayne JJ, they stated: "It is true that the notion of 'reasonable cause', although often used in legal instruments, is an awkward expression. A cause is a cause is a cause. Beliefs about causes may be reasonable, but causes are neither reasonable not unreasonable. They are facts even if, as current legal doctrine insists, they often involve value judgments." 43 In my opinion, the abovementioned principle in Taylor and test enunciated by Emmett J in Austrac equally applies in that the Tribunal, as was the Commissioner, must objectively be satisfied, from established facts of the matters set out in paragraph 24(2)(a) of the Act. These matters are that LY's domestic circumstances are such that she may not personally exercise continuous and responsible control over her firearm. 1. Section 70 of the Firearms Act provides: 70 False or misleading applications A person must not, in or in connection with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular. Maximum penalty—imprisonment for 14 years if the application relates to a pistol or prohibited firearm, or imprisonment for 5 years in any other case. 1. In relation to the provision of false and misleading information, in Kogias v Commissioner of Police [2020] NSWCATAD 297, Senior Member Walker stated from paragraph [101] 101. Legislation such as the Firearms Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and similar orders serve the public interest by establishing a regulatory structure for an activity that not only protects the public from harm, but also helps to maintain public confidence in the licensing scheme by signalling that those whose activities do not meet the required standards will not be granted a licence or permit: Moujalli v Roads and Maritime Services [2017] NSWCATAD 141, [52] – [53]. One of the expressed objects of the Firearms Act is "to establish an integrated licensing and registration scheme for all firearms": s 3(2)(b). 102. Specifically in the context of firearms licensing, the tribunal stated in Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240, [26], that "the system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act". That such information must be true and correct is made explicit by s 70, which states that "A person must not, in or in connexion with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular…." 103. The most current matter of concern is the applicant's submission of false information in his licence application by answering "No" to the question whether he had had a licence revoked or refused. Also relevant is his answering "No" to a similar question in a P650 form, but the application is the principal concern. … 114. The functioning of a proper system of firearms licensing is one of the stated objectives of the Firearms Act, which depends on applicants providing true and correct information in a comprehensible manner. That is the reasoning behind s 70. It is nothing to the point to claim that the registry already has access to information about prior revocations or refusals. Locating it might require the registry to conduct an investigation into the license history of every applicant, whereas it should be able to rely on the veracity of persons having dealings with it in determining whether to give an application closer attention. ... 1. Section 64 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") provides: (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders— (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. ... (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. The public interest 1. The term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681: The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation. 1. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel said that: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system." 1. In Cusumano v Commissioner of Police [2001] NSWADT 50 at paragraph [23] Deputy President Hennessy stated: "There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act." 1. Section 3 of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at paragraphs [27] – [28] Deputy President Hennessy said that in terms of public safety: "27 …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk." 1. Ward v Commissioner of Police dealt with the issue of whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at paragraphs [130] – [134]. 2. The question of risk is not to be approached in an absolute or mechanistic way, 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 at paragraphs [64] – [66]. 3. In determining this issue, it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32]. Issue for determination 1. The Tribunal is to determine whether the correct and preferable decision is to revoke the Applicant's firearms licence. Material Before the Tribunal 1. A significant amount of material has been lodged in this matter. Much of the material is in relation to the Applicant's mental health but it also addresses the Applicant's need for a firearms licence and his failure to provide accurate information in his various licence reapplications. 2. Both the Applicant and Kate have provided statements, gave oral evidence and were cross-examined. 3. Evidence has been provided by the Applicant's GP, Dr Ojah; and from a psychiatrist, Dr Anthony Dinnen; a report from the Applicant's counsellor, Ms Sharon Philpott and a report from the Applicant's Psychologist, Ms Anna Shields. Dr Ojah; and Dr Dinnen both appeared, gave evidence and were cross-examined. In addition, the Applicant's medical records from his local Medical Centre and records from QBE Insurance relating to prior workers compensation claims made by the Applicant have been filed along with documents from practitioners who the Applicant had consulted following the revocation decision. 4. I have considered all of this material. In these reasons I will discuss those aspects of the evidence which are most relevant to the issues to be decided. I will limit the open discussion of some of the evidence in order to protect the Applicant's privacy. The Respondent's case 1. The Respondent points to the following issues as relevant to the issue that is to be determined: 1. The Applicant's mental health; 2. Whether the Applicant needs a firearm for his future employment; 3. Applicant's provision of false and misleading information to the Commissioner. The Applicant's mental health 1. The Respondent relies on documentary evidence from the records of Ms Shields, and Dr Ojah, and the report made by Ms Philpott, the Applicant's counsellor. The Respondent also relies on Kate's evidence which the Respondent contends provides a detailed history of the mental health issues that the Applicant has faced since 2007/2008. The Respondent also relies on the July 2016 statement. Ms Philpott's report 1. In about May 2016 Dr Ojah referred the Applicant to Ms Philpott for treatment of depression and anxiety. 2. In her report dated 27 May 2016 Ms Philpott reported to Dr Ojah in regard to her assessment of the Applicant. Ms Philpott's report contains extremely personal information concerning the Applicant. For that reason, I propose to restrict access to this information. It is appropriate that an order be made under section 64 of the NCAT Act in relation to this report restricting access to the parties. 3. [Not for publication] 4. It is apparent that Kate was not in the room when Ms Philpott spoke to the Applicant. However, she was later called into the room to discuss the session's details and the safety plan that was put in place. The Applicant was unable to recall much of what was said during the session, but he could recall what was not said. He nevertheless disputes the contents of Ms Philpott's report. 5. The Respondent contends that Ms. Philpott's report should be afforded significant weight due to the circumstances and the findings. Due to the concerns held by Ms Philpott, the safety plan included removing the Applicant's access to the firearms. Dr Ojah did not implement Ms Philpott's safety plan. 6. In contrast, the Applicant submits that Ms. Philpott's report was made on the basis of only two sessions with the Applicant and this limited relationship must be weighed against the extensive medical records of Dr Ojah. Further, Ms Philpott's report must be considered in light of the Applicant's evidence, upon which he was cross examined. 7. In the circumstances, I agree with the Respondent in regard to the weight to be given to Ms Philpott's report. The July 2016 statement 1. The July 2016 statement was located on the medical file of the Applicant that were provided to the Respondent in response to a summons by QBE Insurance. 2. Mr Habgood was engaged by QBE Insurance to investigate the Applicant's workers compensation claim. The July 2016 statement includes, at paragraph 73, extremely personal information concerning the Applicant. For that reason, I propose to restrict access to this information. It is appropriate that an order be made under section 64 of the NCAT Act in relation to this report restricting access to the parties. 3. [Not for publication] 4. The Applicant's evidence regarding the preparation of this statement by Mr Habgood was limited by the fact that his recollection has faded due to the passage of time. He agrees that he met with Mr Habgood and that he mainly discussed work and how he was feeling at the time. He denied saying the words attributed to him in paragraph 73 of the July 2016 statement. He concedes that it is his signature on the document. However, he could not accept that it was his statement. 5. Kate agreed that she was present at the Applicant's interview when Mr Habgood collected information to prepare the statement. However, she made it clear that she was only there to provide support. She denied taking part in the interview that led to the statement and she denied being involved in the provision of the substantive material of statement. 6. On the evidence before me I am not satisfied that Kate made any significant contribution to the contents of the July 2016 statement. I am satisfied that the July 2016 statement is highly relevant to this matter in that the information that it contains provides detail of the Applicant's mental health at the time. It is to be given considerable weight. Kate's evidence 1. It is not in dispute that Kate and the Applicant were in a relationship from 1996 to November 2020. Kate has custody of the children. Kate provided statements and appeared at the hearing and was cross-examined. 2. Kate provided an outline of her recollection of the Applicant's mental health issues. 3. I note that the Applicant has submitted that Kate's motivations for giving evidence and her evidence itself must be viewed in the context of ongoing contested Family Law property and children proceedings. The Applicant has also disputed parts of Kate's evidence and points to inconsistencies between some of that evidence and the medical records that have been provided to the Tribunal. 4. Kate's evidence contains extremely personal information concerning the Applicant, Kate and their children. For that reason, I propose to restrict access to this information. It is appropriate that an order be made under section 64 of the NCAT Act in relation to this evidence restricting access to the parties. 5. [Not for publication] 6. I note the Applicant's contentions in regard to Kate's evidence. However, in my view, this evidence is relevant to the issues to be determined as it provides an account of events to which only Kate and the Applicant were privy and the Applicant's recollection of many of those events was poor. 7. Significantly, in this regard, the Applicant agrees that he attended a meeting with Mr Habgood in relation to a claim that he had lodged and he agrees that the signature on the July 2016 statement is his signature. 8. The Applicant has correctly observed that submitted that Kate's evidence is not supported by Dr Ojah's records. 9. [Not for publication] 10. The Applicant submitted that in order to accept Kate's evidence, the Tribunal would have to disregard Dr Ojah's notes. 11. The Applicant has also correctly observed that some of Kate's allegations are inconsistent with contemporaneous COPS entries. 12. [Not for publication] 13. [Not for publication] 14. The Applicant submitted that, without independence corroboration, any evidence that Kate has given in regard to the Applicant's mental health must be given no weight at all. 15. I do not agree with that submission. In my view, Kate's evidence is relevant and significant, and it aligns generally with other material that is before the Tribunal. On these issues, Kate's evidence was not varied under cross-examination in any material sense. The mere fact that Dr Ojah's notes do not record events to which Kate has referred does not bear on whether Kate's evidence is accepted. Dr Ojah's notes are not exhaustive, and they do not contradict Kate's evidence. 16. [Not for publication] 17. I also note that Kate has provided a plausible explanation for inconsistencies between her evidence and the COPS entries. The Applicant's case 1. The Applicant provided two statements and also appeared at the hearing and was cross-examined. 2. He concedes that he has suffered from PTSD, depression, and anxiety from 2008. He stated that his mental health issues started sometime in 2006. He was diagnosed with PTSD, depression, and anxiety after several traumatic events. 3. The events that triggered these issues are referred to in the Applicant's evidence and in Kate's evidence as noted above. The combined trauma of those events saw his mental health decline. He denies that he has ever been suicidal. However, he conceded that he has received treatment for his mental health and continues to do so to the present time. 4. His evidence is that his mental health has significantly improved. It is well managed by medication and regular appointments with his General Practitioner and Psychologist. He attends regular scheduled appointments with his doctor, takes all prescribed medication, follows all medical advice, and has consulted with a psychologist to ensure that he is mentally fit and able. 5. He holds down a full-time job with NPWS. He says that if his mental health was in decline, he would be unable to hold down that job. Therefore, he says, the fact that he is able to hold that job attests to his sound mental health. 6. In regard to the question of the need for a firearms licence for his work, the Applicant's evidence is that in his job with NPWS he had been required to check traps set for feral pigs. Once caught, those feral pigs were euthanised with a firearm. He does not require a firearms licence for his present role, but the lack of a licence restricts his activities. He provided evidence of promotional positions within NPWS for which having a firearms licence was either essential or desirable. He stated that he would have applied for those jobs if his firearms licence had not been revoked. 7. In support of this contention that his mental health has stabilised he provided a letter from Dr Ojah that indicates that the doctor has no concerns about the Applicant's mental health. He also provided a letter from a treating psychologist. 8. In addition to a work-related need for a firearms licence, the Applicant's evidence is that he likes to involve himself in recreational hunting in his leisure time and that he is a member of the sporting shooters association of Australia. He has held a firearms licence for approximately 15 years without incident. He has also held a restricted game hunting licence issued by NSW Department of Primary Industries. 9. The Applicant is aware that Kate made a report to Police in regard to his mental health. He stated that prior to Kate's report there had been no issues with respect to his firearms licence or his use of firearms. His evidence is that he has never been convicted of a criminal offence. 10. He is of the view that Kate's report to Police was motivated by malice due to the end of their marriage rather than by any legitimate concern about his mental health. Further, he is of the view that Kate's report was a tactical decision in relation to Family Law proceedings. He also denied many of the allegations that Kate has made in regard to his mental health or his behaviour. 11. The Applicant noted the Respondent's contention that he provided false and misleading information in his various licence applications and renewals. He stated that he was not suffering from any mental health conditions when he first applied for a firearms licence in 2003. However, he conceded that in his licence renewals in 2009, 2014, and 2019 he ticked the box saying he had not been treated for a mental health condition in the previous 12 months. He also conceded that, at the relevant time, he was being treated by his GP in that regard. 12. He stated that his rationale for ticking that box was that his mental health was well managed and on track. He therefore felt that there was no need for him to advise of his mental health, as it was not a matter relevant to public safety. 13. His evidence is that he did not seek to deliberately mislead or provide false information in his declarations. He conceded, in hindsight, that he should have raised the issue of his mental health treatment in his application for licence renewal and he gave an undertaking that he will do so in the future. 14. The Applicant seeks an order setting aside the decision to revoke his firearms licence. In the alternative, the Tribunal could impose appropriate conditions on the firearms licence. 15. The Applicant's solicitor points to the decision in Clay v Commissioner of Police, NSW Police Force [2018] NSWCATAD 49, in which the Tribunal granted a firearms licence to an applicant who had suffered mental health issues. The Tribunal explained at paragraphs [2] – [3]: Basis for the refusal 2. On 8 December 2012, the Applicant attended Raymond Terrace Police Station, telling police that he had been having thoughts of harming his partner, including hearing voices telling him to do so. The Applicant was conveyed by police to the Mater Hospital where he was admitted ('scheduled') under s 22 of the Mental Health Act 2007 (NSW). In early 2013, the Applicant was diagnosed with Borderline Personality Disorder (BPD). 3. While it was acknowledged in the decision under review that the Applicant had no criminal record, nor was there any evidence of violent conduct, the delegate relied on the diagnosis of BPD and that the possibility of relapse could not be eliminated. 1. He submits that the decision in Clay demonstrates that: 1. an historical diagnosis of a mental health issue does not preclude the grant of a firearms licence; and 2. the risk of a future period of poor mental health is not a basis for refusing to grant a licence, noting that all licence holders will have unfettered access to firearms while their mental health status is unknown. 1. Accordingly, it is submitted, the Tribunal must take a "nuanced and careful consideration of the evidence before the Tribunal". He submitted that in this matter, a nuanced and careful consideration of the evidence reveals that the Applicant's mental health is stable, well-managed, and does not present a risk to the public interest. Dr Ojah's evidence 1. The Applicant does not dispute that he has received assistance from Dr Ojah in relation to his mental health. 2. As noted, Dr Ojah has been the Applicant's long-term GP. His records show that he saw the Applicant in 2010 and that the Applicant was prescribed and the subject of a mental health plan to address depression from 30 November 2011. 3. Dr Ojah's evidence was that the Applicant has suffered from anxiety and depression, but the Applicant's mental health has been regularly reviewed. His evidence is that the Applicant is compliant in taking his medication to manage his conditions and that he listens to and acts upon medical recommendations. 4. Dr Ojah has long term knowledge of the Applicant's mental health and is generally supportive of this application. 5. In September 2021, Dr Ojah advised: "Mr Dean Dhu is a known patient of mine. Dean has a long history of depression and anxiety for which I have been reviewing him regularly, Dean has recently separated from his wife which has exacerbated his condition however Dean has not ever needed to be scheduled. Dean is compliant in taking his antidepressant medications and has been referred to Psychiatrist Dr Anthony Dinnen". 1. [Not for publication] 2. On 4 August 2021, Dr Ojah referred the Applicant to Psychiatrist, Dr Anthony Dinnen. The letter of referral is in evidence. The referral letter notes the Applicant's depression but notes "no formal thought disorders". The Applicant was described as appearing down but otherwise in good general condition. No reference was made to Ms Philpott's report or the July 2016 statement. Dr Anthony Dinnen 1. Dr Dinnen is a consultant psychiatrist of many years' experience. He interviewed the Applicant by FaceTime whilst the Applicant was sitting in his car at Port Macquarie. Dr Dinnen did not meet the Applicant in person. 2. In his report to Dr Ojah, Dr Dinnen noted that the Applicant had indicated that Kate had apparently stated that he has mental health issues. 3. [Not for publication] 4. In relation to his firearms, the Applicant had advised Dr Dinnen that he has the firearms for recreational use and, in particular, for killing vermin. He noted that he needs to have a licence in order to get the next higher position in the National Parks Service. 5. In relation to his previous mental health problems, the Applicant had advised Dr Dinnen that he had been taking medication for five years. It helps him to calm down and brings him to a level where he does not seem to be bothered by any stressful situations. He believes the medication helps more with anxiety than with depression. The Applicant had stated that about five years earlier he had been seeing a counsellor and had commented about the way in which people suicided was silly and that he "could do it a lot cleaner". 6. [Not for publication] 7. In relation to the Applicant's current mental health, Dr Dinnen noted that the Applicant stated that he was mentally fine. His general health was good. He was not anxious. He uses little alcohol and smokes no more than five cigarettes in a week. 8. The Applicant had advised Dr Dinnen that a couple of months earlier he had been referred to a psychologist, Anna Stewart. He was told there was no need for any further appointments but that he could contact her if he felt the need. 9. Dr Dinnen's opinion was that: The diagnosis made by Dr Ojah in 2016 of an adjustment disorder with depressed and anxious mood would appear to be appropriate for those circumstances. However, that condition is clearly in remission and his mental state has stabilised on ongoing maintenance antidepressant medication." He noted that there was no evidence of any significant psychiatric symptoms. 1. In relation to the Applicant's firearms, Dr Dinnen's opinion was: "I see no evidence that he lacks control or that his mental health is disturbed to the extent that he would be considered a threat. I do not believe he is a risk". 1. As noted, Dr Dinnen appeared and was cross-examined. It is clear from his report that Dr Dinnen was aware of the Applicant's earlier mental health issues and various mental health consultations. It is also clear that the Applicant told Dr Dinnen about the report that Kate had made about his mental health. The Applicant had also denied Kate's allegations. 2. In my view it is clear that Dr Dinnen was not involved in the Applicant's treatment before Dr Ojah's referral. It is also clear that the information that Dr Dinnen received was incomplete, as it did not objectively report the Applicant's full history. In the absence of the full history, Dr Dinnen relied on what he was told by the Applicant, and he provided his report on that basis. 3. Dr Dinnen was not made aware of Ms Philpott's report or the July 2016 statement. He stated that he would have to reconsider the issue if the material in the two documents were accurate. 4. I am not satisfied that Dr Dinnen would support the Applicant's application if he had been aware of the Applicant's full history. 5. In the circumstance, I agree with the Respondent that Dr Dinnen's report was created in the absence of the full facts. That being the case, it should be given little weight in this matter. Ms Anna Shields, Psychologist 1. Ms Shields is a psychologist who saw the Applicant on three separate occasions being 13 September 2021, 17 September 2021, and 13 October 2021. Ms Shields report was before the Tribunal for consideration. 2. Ms Shields noted that the Applicant was referred by Dr Ojah. He presented with depressed mood (mild to moderate) and flat affect. Although he reported depressive symptoms, he did not meet diagnostic criteria for Major Depressive Disorder or adjustment disorder. He denied any thoughts of suicide, self-harm, harm to others, or concerns for his safety. 3. In her October 2021 report Ms Shields noted: "In my psychological opinion, Mr Dhu currently presents as mentally fit to exercise responsible control over firearms. He appears to have the ability to form and use rational judgment while using a firearm and presents as low risk to both public and his own safety." 1. Ms Shields was not required to give oral evidence in support of her report and on this basis the Applicant submits the report speaks for itself. 2. However, just as the opinion of Dr Dinnen is based on incomplete evidence, it is also apparent that Ms Shields report is based on incomplete evidence. That being the case, it should be given little weight in this matter. Consideration 1. As has been noted, the Respondent has identified three issues for consideration. Those issues are: 1. The Applicant's mental health; 2. Whether the Applicant needs a firearm for his future employment; 3. Applicant's provision of false and misleading information to the Commissioner. The Applicant's mental health 1. In my view, Ms Philpott's report and the July 2016 statement are important documents in that they explain in some detail the Applicant's mental health at relevant times. 2. [Not for publication] 3. Ms Philpott was sufficiently concerned about the Applicant's mental health that she developed a safety plan that included removal of the Applicant's firearms in order to reduce the risk of self-harm. In my view Ms Philpott's report is to be given significant weight. 4. In 2016 the Applicant lodged a worker's compensation claim. He relied on the July 2016 statement. He agreed that the statement contains his signature. I am satisfied that the July 2016 statement records what the Applicant told Colin Habgood, an agent of QBE insurance, about his recent past. I do not accept that the Applicant he did not provide the information that is included in the July 2016 statement. In my view it is to be given significant weight. 5. As I have noted above, I also consider that Kate's evidence is highly relevant to this matter. In my view it is to be given significant weight. 6. I agree with the Respondent's concern that the Applicant has spoken to a number of medical practitioners, and that he did not provide the full details about his mental health condition to those practitioners. As a consequence, I have found that little weigh should be given to the reports of Dr Dinnen or Ms Shields as those reports were based on incomplete information. 7. In the circumstances, I am satisfied that in the past there was cause for concern in regard to the Applicant's mental health and his suitability to hold a firearms licence. However, I am unable to draw a reasonable conclusion in regard to the current state of the Applicant's mental health because I am unable to give adequate weight to the reports that suggest his mental health has stabilised. Need for a firearm firearms licence 1. On the evidence before me I am not satisfied that the Applicant requires a firearms licence for his current role in NPWS. However, I accept that the revocation of his firearms licence precludes him from seeking promotion to new positions within NPWS at least insofar as those positions require a firearms licence. Any current use of a firearms would be limited to recreation and feral animal control. Applicant's provision of false and misleading information 1. In 2009, 2014 and 2019, the Applicant completed reapplications for a firearms licence. He did disclose the fact that he was receiving treatment for a mental illness or mental disorder in any of those applications. He declared that the information that he had provided was accurate. He now concedes that that was not that case. 2. The Applicant did not provide any information to the Commissioner about the treatment that he had received for his mental health condition. The information only became available when Kate approached the Police and reported her concerns. 3. In relation to the provision of false and misleading information, I have referred above to views expressed in Kogias v Commissioner of Police. I agree with those views. The Respondent should be able to rely on the veracity of information provided by licensees or potential licensees. The functioning of a proper system of firearms licensing depends on applicants providing true and correct information. 4. In this matter, the Applicant has conceded that he did not declare that he had been receiving treatment for his mental health conditions. I accept that he did not adopt this approach to deliberately mislead the Respondent. Nevertheless, if the correct information had been provided, the Respondent would have had the opportunity to undertake a more thorough consideration of the Applicant's circumstances. This may or may not have led to a different decision in regard to each of the renewal applications. 5. The consequence of the failure to provide accurate information was that the Respondent was not alerted to a relevant consideration in the licensing process. This is a significance consideration in the circumstances of this matter because of the views that I have formed in regard to the weight to be given to Ms Philpott's reports and the July 2016 statement and the view that the reports of Dr Dinnen and Ms Shields were based on incomplete information. 6. In the circumstances of this matter, the Applicant's failure to notify the Commissioner of the treatment that he received for his mental health over three separate applications is to be given significant weight. Conclusion 1. I have found that the reports of Dr Dinnen and Ms Shields should be given little weight. Consequently, at this time I cannot be satisfied that the Applicant's mental health is stable, well-managed, and does not present a risk to the public. I cannot be satisfied that there is virtually no risk to the public if the Applicant has access to firearms. 2. The evidence that I have accepted raises cause for concern that at least in 2016 there was significant risk to the public in the Applicant having access to firearms. It may well be that the risk no longer exists. However, in the absence of evidence that is based on complete information, the situation remains unclear. 3. Further, I cannot be satisfied that there is virtually no risk that the Applicant will not relapse into the condition that was described in the July 2016 statement or as described in Ms Philpott's report. 4. In those circumstances, the correct and preferable decision is to affirm the Respondent's decision. Order 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: 17 January 2023