Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ellis v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 264 Hearing dates: 3 October 2023 Date of orders: 16 October 2023 Decision date: 16 October 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: Emeritus Prof G D Walker, Senior Member Decision: 1. Decision under review set aside. 2. A category AB firearms licence is to be issued to the applicant. Catchwords: LICENSING – firearms licensing – licence refusal – public interest – mental health – self-harm ideation — professional treatment. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW) Mental Health Act 2007 (NSW) Cases Cited: AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5; Briginshaw v Briginshaw (1938) 60 CLR 316; Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42; Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADT AP 16; Crough v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 395; Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Elley v Commissioner of Police, New South Wales Police Force [2023] NSWCATAP 237; Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218; Ireland v Commissioner of Police [2023] NSWCATAD 226; Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117; Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368; Kogias v Commissioner of Police [2020] NSWCATAD 297; Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 McDonald v Director-General, Social Security [1984] FCA 57, (1984) 1 FCR 354; Monjed v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 27; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10; Statamelstos v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 156; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10; Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Texts Cited: None Cited Category: Principal judgment Parties: Mr Christopher P Ellis (Applicant) Commissioner of Police, New South Wales Police Force (Respondent) Representation: Counsel: Mr T Lowe (Applicant) Solicitors: McDonald Law (Applicant) Sparke Helmore (Respondent) File Number(s): 2023/00151246 Publication restriction: None Reasons for decision 1. The applicant Mr Christopher Patrick Ellis applied to this tribunal on 11 May 2023 seeking review of a decision by the respondent dated 31 March 2023 (exhibit R1, pp 99 – 102) affirming the decision to refuse his application for a category AB firearms licence on 10 January 2023 (id., 90 – 91) on public interest grounds. 2. The internal review decision incorporated some findings of fact made in an internal review decision dated 1 August 2022 refusing an earlier licence application made on 22 April 2021 (id., 94 – 97). The 31 March 2023 review decision incorporated by reference a number of substantially undisputed findings of fact detailing a number of relevant incidents and healthcare reports. It may be useful at this stage to summarize those findings, which form the background to the case, adding police event report numbers and additional details from those reports where appropriate. 3. The matters referred to are the following: * The applicant was first issued with a category AB licence on 5 December 2012 for the stated reason of sport/target shooting. On 28 September 2017, he and his then partner had engaged in an argument, in the course of which he had said, "I'm just going to go and kill myself then". Attending police ascertained that earlier that day he had messaged his partner stating, "I may as well end my life" and "When I get home, I'm gonna kill myself". He was conveyed by Rachel's mother voluntarily to Nepean Hospital and scheduled under s 22 of the Mental Health Act 2007 (police event report E 6848166, exhibit R1, pp 16 – 17). * 5 October 2017: his firearms licence was suspended because of concerns about his mental health and a mental health risk assessment request was sent to him on 10 October 2017 (id., pp 77 – 78). No response to that request was received by the Firearms Registry. * 13 December 2017: police were contacted after he made comments over the telephone that he wanted to end it all and that he did not want to be in this life any more. Police attended his address, where he stated that he was depressed. He was conveyed by police to Nepean Hospital under s 22 (event E 65954444, id., 18 – 19). * 14 January 2018: police were called after he sent text messages to his partner stating again that he was feeling down and that he did not want to be here any more. He disclosed to attending police that he had been prescribed in 25 mg of Seroquin per day. Police found no evidence of a suicide attempt and concluded he was not going to harm himself or anyone else. He did not fall under the criteria to be scheduled (event E 66904176, id., 21 – 22). * 7 February 2018: he sent photographs to his then partner showing him with a rope around his neck, while standing on milk crates stacked together. The photographs were accompanied by text messages stating that he did not want to live any more. Attending police called an ambulance and he was scheduled under s 20 of the Act and taken by ambulance to Nepean Hospital for further treatment and assessment. * He absconded from Nepean Hospital later that day and police attended his home, where they saw a rope attached to roof beams in the garage and milk crates stacked on each other. He was found walking in St Clair Avenue and returned to hospital, whereupon he was scheduled by a health professional under s 19 of the Act (event E 66576123, id., 23 – 25). * 19 February 2018: his firearms licence was revoked because of mental health concerns and his failure to provide a mental health risk assessment as requested (E 67534931, id., 26 – 27). On 3 October 2020, he provided a mental health risk assessment from psychologist Ms Lillian Makich, purporting to be in response to the request made on 10 March 2017, which concluded that he had no current potential to put public safety at risk if he were to have possession and use of a firearm (id., 104 – 106). * 22 April 2021: the applicant submitted a new application for a category AB firearms licence, together with a report from Dr Ben Hooi-Beng Teoh, consultant psychiatrist, addressed to Transport for NSW and dated 1 March 2021. The report concluded that the applicant was fit to hold a commercial driving license (MC – multi-combination licence) (id., 57 – 58). On 19 August 2021 firearms licence application was refused (id., 87 – 89). 1. On 15 November 2022, the applicant applied for a category AB licence, which was refused on 10 January 2023 and, as was noted above, the refusal was affirmed on 31 March 2023. He then applied to this tribunal for review of the refusal decision on 11 May 2023, and that application came on for hearing on 3 October 2023. Applicable legislation 1. Section 11(7) of the Firearms Act gives the respondent, and on review this tribunal, a discretionary power to refuse to issue a licence if it is considered that the issue of the licence would be contrary to the public interest. 2. The issue in this application is therefore whether the correct and preferable decision would be to set aside the reviewable decision or to affirm it on the ground that the issue of a licence would be contrary to the public interest within the meaning of s 11(7). The evidence 1. The respondent did not call oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1) and on cross-examination of the applicant and of his expert witness, Mr Sam Borenstein. Mr Christopher Ellis (applicant) 1. In oral evidence at the hearing the applicant adopted his affidavit dated 31 July 2023 in which he deposed inter alia that he has no criminal record and has been in continuous employment since April 2015. He currently works on a casual basis with numerous companies, including Anric Developments, Onrail, THEE Group and Rowley's Plant Hire and Transport. His main work duties are as a heavy machine operator in the rail corridor. Those organizations conduct infrastructure maintenance in the rail corridor and undertake rail projects. His employment is in an up-skilled role, which means that they are an up-skill from his previous role in transport, as they are focused on operating heavy machinery. That includes operating earthmoving equipment, excavators and dump trucks. That is a more complicated role than merely driving and transporting such equipment from site to site. 2. The skills needed involve engaging in different tasks, focusing on work, health and safety awareness, such as being aware of workers on foot and following the guidelines and procedures set out by the Rail Industry Worker Program Card (RIW) as drafted and owned by the Australasian Railway Association. 3. Holding a valid RIW requires being employed by a rail company and having a valid medical clearance. The process is twofold, the first involving learning and engaging in sound work, health and safety practices such as fatigue management, drug and alcohol processes and procedures. The second process involves undergoing numerous medical tests. 4. The medical test includes hearing, eye and cardiovascular tests. Also, being a type 1 diabetic, he is required to undergo a 12-month medical review to maintain his RIW card under category 1 (CAT 1). If he did not have diabetes, that card would only need reviewing every five years. The CAT 1 requirements relate to workers engaging in heavy vehicle operations only. There is a separate categorization for workers who do not engage in operating heavy machinery. They may include administrative staff, managers and supervisors. 5. As a result of having an RIW card, he must also have greater knowledge of rail networks, pre-start briefings, permits and protocols. Those new skills involve knowing how to load and secure heavy machinery and equipment for safe transport. In his current role he is qualified to operate those heavy machines, as well as loading and securing them to a truck for transport. He can also transport them from site to site. In all his employment with Anric, THEE and Rowley's, he has been able to fulfil those roles, from operating heavy machinery, as already mentioned, such as driving trucks, to floating those machines from site to site. He is also required to conduct regular maintenance on those machines, given that he has acquired numerous heavy vehicle licence classifications since 2015, and trade qualifications. 6. He currently holds the following qualifications which he obtained from TAFE in 2014 – 2015: * light vehicle mechanics * automotive electrical. 1. Since 2015 he has held numerous track/commercial driver licence qualifications and has travelled hundreds of thousands of kilometres in both a professional and private capacity, driving long distances by way of road trains. On 9 January 2015 he was issued with his heavy rigid (HR) unrestricted license, the highest class of truck licence a person can obtain if they already have a driver's licence. That qualification allows a driver to drive any rigid vehicle with three or more axles and tow a trailer with a gross vehicle mass (GNM) up to 9 turns. That includes driving an articulated bus. 2. The vehicles he has driven include semitrailers, towed trailers, vehicle carriers, passenger buses, B-doubles, livestock/agricultural transportation vehicles and car carriers. 3. On 12 September 2015 he up-skilled to a heavy combination (HC) licence, which is a legal requirement for anyone wishing to operate an articulated vehicle with three or more axles. This license allows drivers to drive any prime mover with a single semitrailer, or heavy vehicle plus a single trailer greater than 9 tonnes GVM. On 9 November 2018 he was issued with his unrestricted motorcycle license. 4. On 27 July 2020 he also up-skilled to a multi-combination (MC) unrestricted license, which enables him to drive road trains. An MC licence class is the highest level of license class. It allows you to drive all types of vehicles except motorcycles. 5. During 2015 – 2018 he was employed by numerous transport companies including Steve's Tippers, Lyon Haulage, Larkin Transport (a road train company including living away from home) and Camtraz. He worked full-time for Steve's Tippers on two separate occasions for about 2½ years while he had a licence suspension caused by incurring various demerit points, fine default suspensions and non-compliance due to a medical reason. 6. The medical reason for the suspension related to his missing a medical report regarding his type 1 diabetes, which was diagnosed when he was in his mid-20s around 2013. He uses insulin to manage his diabetes. 7. He notes the 31 March 2023 document when police attended his residence on 6 March 2018 to serve him with a firearms licence suspension notice that he was uncooperative with police. He agrees that he was not in a good mindset at the time due to the breakup of his intimate relationship with his then partner Rachel. At the time they had been in a relationship for about 2½ years. Their relationship struggle went on for 6 to 9 months before properly ending. 8. He also misinterpreted the seriousness of the matters being put to him by the police and did not appreciate the consequences of failing to comply with their direction until they informed him. He never had any intention at the time of misusing any firearms, nor did he have access to or own any firearms. He was upset with the police as he loved to hunt and shoot and did not want anyone to take his license away from him. He felt he was being unfairly targeted. He fully accepts that he did not handle the police interaction appropriately or well. Having had time to reflect upon that he had resolved that his response was due to a lack of maturity. He sincerely regrets behaving in the way that he did and learned a valuable lesson. 9. Despite his attitude at the time and taking the time to process the matter, he ultimately accepted that his firearms licence was going to be suspended and handed his licence personally to Penrith police station the next day. 10. When police attended his residential address on 6 March 2018 and sought to serve on him the suspension notice and direction to surrender his firearms, they could not find him, not because he was avoiding them but because he was moving house. He contacted the police and they told him they needed to serve the suspension paperwork on him to direct him to surrender his firearms licence. He also fully agrees that interactions with the police should be "respectful and cooperative", given the importance of regulating authority needing to have confidence in people entrusted with the privilege of holding a firearms licence. 11. He has read the s 58 documents carefully and has engaged a solicitor and barrister. From the material he has read and through his lawyers, he has a much greater understanding that the firearms licensing regime is about public safety. As mentioned above, he has no criminal record, nor has he ever been charged with any [non-traffic] criminal offence or firearms -related offence. He does not and has never owned a firearm, and did not have access to any firearms during the period that the Commissioner of Police is relying on to justify that it is not in the public interest or safety for him to hold a firearms licence. He was informed in the correspondence sent to him by the Commissioner in the internal reviews of his applications that are a necessary part of the public safety included his own safety. 12. In relation to the relationship breakdown that caused his emotional distress at the time, he did experienced despair and felt overwhelmed at the prospect of losing his then partner, Rachel. However, he did not ever display any violent behaviour towards her or any other person. 13. As his medical records show, it was a distressing and difficult time for him emotionally. He did not handle the relationship breakdown as maturely as perhaps he would now, if such an event were to occur today. He was in his late 20s at the time and believes he had much more to learn and was naïve regarding the impact that his conduct would create. He now feels embarrassed and foolish about his actions. It is now something he has learned through experience and through engaging Ms Makich and Dr Teoh. Through those health professionals, he had developed the skills he feels are necessary to overcome the varied disappointments in life, including relationship breakdowns. 14. He also notes that during that time he was still recovering from a critical incident that occurred on 21 March 2016, in which he was involved in inadvertently hitting a pedestrian in his truck, causing the pedestrian serious injuries. That incident naturally affected him mentally and he suffered a workplace injury. As a result he was diagnosed with acute stress and PTSD. 15. To avoid any doubt, he was not seeking to distance himself from any of the incidents that occurred during 2018, such as the hanging incident and his hospitalization. Again, he puts that down to being in depression and despair at the time, immaturity and not having the right skills or cognitive strategies to cope with his relationship breakdown and personal trauma. Over the last few years, however, he has proactively sought to learn and engage all those experiences and use them as an opportunity to address his issues, which has ultimately brought him to a position where his psychological and mental health is asymptomatic and stable. 16. He has been in a loving relationship with Tiffany for the past three years. She has four children aged between 5 and 13 and he is like their father, being actively engaged in their upbringing. He finds a lot of satisfaction from being a stable and consistent leadership influence in their lives. 17. In relation to his nominating "no" to his personal history of being treated for a mental or nervous disorder or illness, he did not deliberately seek to mislead the Firearms Registry. He chose that response because he honestly did not believe that he was suffering from, or being treated for, a mental or nervous disorder or illness at that time. He interpreted incorrectly that the question related to whether he was being treated at that point in time. He was using the sessions with his health providers to gain further insight and skills, to learn about his psychology and to apply those skills. He has a genuine interest in psychology and used those sessions as quasi-tutorials, rather than a treatment or rehabilitation plan for an existing mental health disorder. From his perspective, therefore, in his mind he gave the response honestly and to the best of his ability and knowledge at the time. The responses were not made in the knowledge that they were false or misleading and he does not accept that he engaged in any dishonesty in making those statements and declarations. Moreover, at the present time, he is not, nor was he at the time of completing the application, taking any depression or anxiety medication. 18. On 4 July 2023 he was interviewed by Mr Sam Borenstein, clinical psychologist, regarding his psychological and clinical history, together with an assessment of his current psychological diagnosis. He engaged honestly and in a fulsome way with Mr Borenstein. In his report Mr Borenstein provided the expert opinion that he is not suffering from a psychiatric or psychological disorder. Mr Borenstein agrees that he acted immaturely with his involvement with the New South Wales Police and the Firearms Registry during the period relied upon by the Commissioner of Police. Mr Borenstein acknowledged that he has made a concerted effort to address his past issues and has demonstrated the consistency to learn from his mistakes and develop emotionally and mature. As such, in his expert opinion he does not believe the applicant would be a danger to any member of the public or himself if granted a firearms licence. 19. In cross-examination at the hearing the applicant said that he had been employed continuously, with only short breaks. Following the accident in 2016, he had been on worker's compensation while an investigation was proceeding. He was charged with negligent driving causing grievous bodily harm but was never actually convicted as there was insufficient evidence and the charge was withdrawn (exhibit R1, p 6). At the time he had been driving heavy rigid trucks for Hancock and had been off work for numerous weeks. He had been diagnosed with acute stress and PTSD through a specialist on the South Coast who he had only seen a few times. No medication was prescribed. 20. The violation for driving too close to another vehicle on 2 December 2017 arose when he was driving his own car and another driver ahead of him was being aggressive, slowing down in an obstructive manner. He had been on his way to see the doctor but had not slowed down enough, and two police motorcyclists had observed him. As regards the speeding offence on 21 September 2016, he had been driving a heavy combination truck and trailer, starting his night shift. He had entered the on-ramp which had a variable speed limit of between 40 and 80 km/h, which usually showed 80. But was detected doing 65 km/h in a 40 zone. The truck had been empty at the time. 21. During the period in 2017 – 2018 when he had made threats of suicide, he had kept working and had no problem driving heavy vehicles. He was paying his bills and sought to be responsible to his employer, and had told his boss that if he thought he was not able to drive, he should let him know. But his employer had no problem with him driving. 22. As regards the photographs depicting hanging on 17 February 2018, he had knotted the rope and took a photograph in the shed making it look as if he was preparing to hang himself, but he had no intention of doing so. He had experienced a rough night with his partner and she had left. He wanted to lure her back home and staged the photographs in order to get her attention. It was a message designed to get closure, a stunt with no intention of self-harm. He had never hurt himself in his life, though he had thought about it. His partner had called the police following a few incidents, but he had not been actually suicidal and had never felt tempted to do it. He had thought about it at the time because of problems with his relationship and the death of his dog. There had also been a member of his extended family whose son had committed suicide. 23. After sending the photographs he had admitted the police in order to calm himself that they wanted to take him away but he did not want to go as he had to work the next day. When it was pointed out to him that his Nepean Hospital patient record of 8 February 2018 (exhibit R2, p 17) stated that he had "put a noose around his neck but did not have courage to do it" and that he had not said he did it to obtain attention, he replied "If that's what it says". He had been assessed when he was upset and confused and it was hard to explain what he had felt and to express himself. He acknowledged that he had told Dr Andepalli on 7 February 2018 that he had been having suicidal thoughts for a few months and the previous night when he was "very distressed and wanted to end his life", he set up the noose. 24. Asked about how long he had been experiencing mental health issues, he said he had seen Ms Makich during a period that had been mentally hard for him. He did not know how to reach out, but had connected with Liliane (Ms Makich) who helped him to put aside his dark thoughts and to go back to having a happy life. It had been a huge transition period. Lillian was the second mental health care he had been referred to, but he could not track down the first one. He had been on medications before he saw Lillian, starting Lovan (an antidepressant) in December 2017 for a brief time, choosing to stop it in January 2018. He had, however, been on Seroquel for sleep disturbances. 25. He had seen Dr Teoh only once, in connexion with a report for Transport NSW, which had wanted clarification because he had seen a psychologist. So he chose Dr Teoh. Asked about the statement in Dr Teoh's report (R1, p 57) that there was "no history of suicidal ideation" he said he had told Dr Teoh that his recollection was vague and had explained why he was consulting him, for TfNSW. He had said that self-harm had crossed his mind, but did not recall telling him about the incident with the rope. He could not explain why the report said there was no history of suicidal ideation. He had chosen to stop taking medications in order to sort out his emotions. 26. As Lilian had written in her report (exhibit R2, p 115), he had started to see her on 24 February 2018 under a mental health care plan. He would see her every few months, initially to deal with his past problems, but continuing for personal growth and the better management of his emotions. 27. In his declaration dated 29 January 2021 in connexion with a permit to undertake a firearms safety training course (exhibit R1, pp 55 – 56), he had answered questions Be and Bf (attempted suicide or treatment for a mental illness) in the negative because the help he was obtaining was for personal growth, not in connexion with a mental health disorder. He did not recall whether he had been taking medication at that time, but he had done so only for a brief period. Similarly in his application dated 21 September 2022 (id., 61). He had been seeing Lillian at the time but had not been on any medication. 28. He had answered "no" to the mental health question in his current application (id., 69). He admitted it was his response, but said he had lost track of his applications. He had been seeing Lillian from 2018, and is still seeing her now, discussing various problems with her. There had been no change in his treatment program and his mental health plan had been renewed every year. Asked whether he should have admitted he was being treated by Lillian for a mental health problem, he replied that it was not his strong suit. He had not been trying to be manipulative. He was referred to her by his general practitioner after the rope incident. She helps him to be a better person. He had not been continuously diagnosed as suffering from a mental health condition. 29. In re-examination the applicant said that he was a professional driver who could cover between several hundred kilometres a day to over 1000 a day. He had only taken medications for several weeks and was now currently only taking insulin. At the time of the rope incident, he had held a firearms licence, but did not own or store any firearms at the time. Mr Sam Borenstein (clinical psychologist) 1. In telephone evidence at the hearing, Mr Borenstein adopted his psychologist report dated 4 July 2023 (exhibit A2), the contents of which are summarized below. For present purposes it may be noted that his conclusion was that the applicant does not suffer from a psychiatric or psychological disorder and no longer suffers from a depressive illness of the sort he experienced in response to a failed relationship back in 2017, which came to the attention of police and mental health professionals. He did navigate a period of time when he experienced an adjustment disorder with depressed mood, resulting in suicidal ideation without obvious intent. 2. In cross-examination Mr Borenstein said he had interviewed the applicant for the purposes of the report for about 70 minutes, including the assessments. He had explained the tests and recorded the answers. His conclusions were based on the whole of the information he received. He did not consider whether Dr Teoh's report had been incomplete, but the applicant had said he had told Dr Teoh that he had gone to Nepean Hospital and had seen a psychiatrist. He thought the applicant had minimized the rope episode, but was not necessarily lying. 3. He had not said he had suffered from PTSD and he would need to know what the actual question was. It was not unusual for a person to suffer from PTSD after a traffic accident, but the disorder dissipates quickly. There would be no risk, and while it would be appropriate to consider PTSD, it required no great emphasis. Asked whether the domestic circumstances that caused the incidents could recur, Mr Borenstein said it had been a volatile relationship but he had learned from his experiences. 4. In re-examination Mr Lowe referred to the applicant's affidavit (exhibit A1, paras 39 – 41) explaining that he was now in a position where his psychological and mental health was asymptomatic and stable and he had been in a loving relationship with Tiffany for the past three years. Mr Borenstein replied that he saw no reason to change his view and that the passage showed he was no danger to the public. He did not need to see the applicant again, because the remarks in the affidavit were what the applicant would tell Mr Borenstein himself. Respondent's submissions 1. At the hearing the respondent relied on written submissions, with annexures, dated 29 August 2023 (exhibit A2), which after setting out the background to the case and the applicable law submitted that the incidents summarized above, as well as some other interactions with police, showed that the applicant had a mental health history that raised public interest concerns. 2. The psychologist's report by Ms Makich dated 17 September 2022 merited little weight as it as it did not indicate whether the author had fully considered the applicant's actions in the incidents referred to above, and in particular the actual preparations made to commit self-harm on 7 February 2018. In the absence of that confirmation, the tribunal could not be satisfied that there was virtually no risk of relapse, as the assessment undertaken by Ms Makich did not appear to have had regard to the applicant's full mental health history or his history of past interactions with police. 3. The report by Mr Borenstein dated 4 July 2023 had confirmed that the applicant had suffered from depression in and about 2018, had been uncooperative with police on 6 March 2018, had entertained some suicidal ideation and was receiving ongoing treatment from Ms Makich every two months. The report concluded that the applicant was not a danger to himself or the broader community if granted a firearms licence. 4. The respondent submitted that Mr Borenstein's report did not sufficiently consider the applicant's actions and mental health concerns displayed in 2018. In particular it did not refer to his numerous threats of self-harm and admissions to hospital over the period of time or discuss in any detailed his actions on 7 February 2018, involving the pictures that he sent to his ex-partner. The respondent specifically noted that the report stated that "Mr Ellis has never acted on suicidal ideation and there is no history of self-harm behaviours", which contradicted the respondent's understanding of the events described. 5. Extracts from the applicant's health records obtained on summons indicated that the applicant admitted to having previously made multiple threats of self-harm and that those past attempts were recognized and recorded by his medical practitioners. In a clinical report on 7 February 2018, Dr Andepalli observed that the applicant was "very distressed and wanted to end his life…. He was oriented well, judgment impaired, limited insight". The report concluded that the applicant "suffers from severe disturbances of mood. Has suicidal thoughts and plans…." Having regard to the medical records and the records held by police, the respondent submitted that the applicant had made repeated and recent threats of self-harm that should be given significant weight. 6. In Crough v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 395, [57] – [58] the tribunal had discussed the need for both a reasonable passing of time since instances of self-harm had occurred and the need for supportive evidence to satisfy the tribunal that the granting of a licence no longer presented a risk to public safety. In Statamelatos v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 156, [141] the tribunal stated that past conduct of an applicant was a significant guide to likely future conduct and that in that case insufficient time had elapsed to enable a tribunal to conclude that he would present no real risk to public safety. 7. In Monjed v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 27, [37] – [39] the tribunal had said that it was necessary to form a view in regard to the present state of the applicant's health: "Only the Applicant is in a position to provide evidence of his health and to show that his mental health is no longer a cause for concern to the extent that it should prevent him from obtaining a licence". It was not possible to assume that a change had occurred merely because some years had gone by and it was not proved that anything of a discreditable kind had occurred. It had to be proven that a change had occurred. 8. Again, in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [23] the tribunal had held that while both effective treatment and a lengthy period of stability were relevant to assess the public interest, they were not mandatory considerations. While the present applicant's evidence did indicate that he had undergone some improvements in his mental health since 2017 – 2018, the respondent submitted that his mental health had been a long-standing issue and he had not provided sufficient medical evidence to show that his mental health issues had resolved. Nor had a sufficient period of time passed since his self-harm events such that the tribunal could be satisfied that it was currently in the public interest to grant the applicant the privilege of a licence. 9. The respondent also submitted that the tribunal might have regard to the accuracy of information provided by the applicant in his firearms application. The success of the firearms regime depended on accurate information being provided by the applicant: Kogias v Commissioner of Police [2020] NSWCATAD 297, [114]. The applicant had provided false statements in previous firearms applications. On 21 September 2022 he attempted to apply for a licence, but used the wrong form. In that application he answered "no" to the self-harm and mental disorder question. On 15 November 2022, he again applied for a licence, online, and answering "no" to personal history questions to the same effect. 10. The respondent submitted that those answers were falsely given and misleading, as they directly contradicted the applicant's self-harm attempts in 2017 and 2018 (in particular the incident on 7 February 2018) and his ongoing mental health treatment in respect of stress and anxiety concerns. As Mr Borenstein had mentioned in his report, the applicant had been seeing a treating psychologist every one or two months to deal with mental health issues relating to stress and anxiety, as well as emotional regulation. In her report dated 17 September 2022, Ms Makich recommended that he continue with regular therapy sessions to address "ongoing symptoms of stress and anxiety, and also to enhance interpersonal skills and develop emotional resilience". 11. His failure to provide the correct information on 27 September 2022 and 15 November 2022 contravened s 70 of the Firearms Act. Those misleading applications illustrated the applicant's lack of regard for properly complying with the Act and should be considered as another significant factor in applying the public interest test. 12. In oral submissions at the hearing Mr Zoppo on behalf of the respondent reiterated those points and pointed out that Mr Borenstein had no prior knowledge of the applicant before his evaluation and the assessment had been conducted by AVL. The applicant had not given him a complete picture of his mental health history, in particular of the PTSD diagnosis. In oral evidence he had said he would consider that point further, but did not change his opinion on that account, which affected the weight to be given to his evidence. 13. Dr Jagadeesh Andepalli had reported on 7 February 2018 that "his mood has been depressed for a few months. He's been having ongoing suicidal thoughts for a few months". A progress note by a nurse dated 16 December 2017 recorded that he had long-standing psychosocial issues and recent anger management issues since the beginning of 2017, and that he felt that nothing was going right in his life. 14. Although he stated that he had never actually attempted self-harm, an ambulance report on 7 February 2018 said that he described sending the photographs to his ex-partner so she could see how much he was hurting, but did not have the courage to do it, and had tried before. While the tribunal had said in AML that not every suicide attempt warranted licence refusal or revocation, this was not a one-off episode as there were other incidents in the 2017 – 2018 period. He had said in his affidavit that he had never owned a firearm. 15. In his licence and permit applications he had failed to disclose his mental health treatment, although in in his email to the Firearms Registry dated 3 August 2022 (exhibit R1, p 111) he had written that he had been attending continuous counselling over the years and had overcome his troubles. Ms Makich's progress reports describe meetings with him from February 2018 to January 2023 (exhibit R2, pp 126 ff). It was clear that he had been receiving treatment from her as a continuation of his treatment for earlier mental health issues. The questions were clear and intent to deceive was not needed, carelessness being sufficient. Consideration 1. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. 2. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's refusal of a licence or permit: s 75(1)(a). An internal review was applied for and duly determined (ADR Act s 55(3)). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357. 3. Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that 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 the applicant's intemperate habits or being of unsound mind. 4. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction. Public interest 1. The "public interest" factor under s 11(7) allows a consideration of issues going beyond the character of the applicant. 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. As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration. 4. Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, 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]. 5. 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". The Appeal Panel supported that formulation in Elley v Commissioner of Police, New South Wales Police Force [2023] NSWCATAP 237, [48]. 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]. Mental health The incidents 1. The respondent's case for affirming the refusal decision rests on two main public interest grounds, mental health (including suicidal ideation) and the furnishing of incorrect information on licence and permit applications. In relation to mental health, four main incidents are relied on, two of which involved visits to hospital, though apparently no admission for in-patient treatment other than overnight. Those incidents have been summarized above, but to recapitulate: * 26 September 2017: threats of self-harm. Police are called and Rachel's mother drives him to Nepean Hospital. * 13 December 2017: a friend calls police because of his depressed state, and he is taken to Nepean Hospital. He does not make any threats of self-harm. * 14 January 2018: a friend telephones the police after he said he "didn't want to be here anymore". No threats of self-harm are recorded. Attending police assess him as presenting no risk to public safety. * 7 February 2018: Rachel contacts police after he had sent her photographs of himself with a rope around his neck, standing on milk crates. He is uncooperative with attending police and says he wants to commit suicide. He is taken to Nepean Hospital but absconds and is later returned to hospital by police and admitted overnight. 1. In addition, on 6 March 2018 he is uncooperative with police seeking to serve on him notice of his firearms licence revocation and returns the licence to the police station four days later. On 11 May 2018 in the course of an argument with his partner (the putative victim), she telephones police, who confirm after attending at her apartment that an oral argument had occurred but that she did not hold concerns for her safety. No self-harm is threatened. Healthcare reports, including Ms Makich 1. There are also health care reports extending over several years about his mental state. The earliest appears to be that of Nurse Sinthuja Busuttil dated 16 December 2017 recording "long-standing and psychosocial issues and recent anger management issues since the beginning of 2017". He had recently commenced on 40 mg of Lovan and had called around to Lifeline and Men's Line but did not find it useful. He was seeing Virginia Keer, a psychologist, of Penrith. He denied any current self-harm thoughts. 2. Then on 7 February 2018, following the rope incident, Dr Andepalli's clinical report observed that the applicant was distressed and reported that his mood had been depressed for a few months. He had been having ongoing suicidal thoughts for a few months. He had no delusions, bizarre ideas or perceptual abnormalities. He was oriented well, though his judgment was impaired and he had limited insight. 3. Next, there is a progress report by Ms Makich dated 13 March 2019 explaining that he initially presented on 24 February 2018 under a mental health health plan provided by Dr Lip, who arranged four sessions under the plan and a further six sessions under Dr Saadia Sabir. At that initial session he had self-reported symptoms of depression, anxiety, and stress, indicating severe levels of depression, moderate level anxiety and severe level symptoms of stress. He had broken up with his then girlfriend and reacted with suicidal ideation and extreme emotions, to the extent that his former girlfriend contacted the police to revoke his firearms licence. 4. He identified difficulties with learning during his school years and continued to struggle with literacy and numeracy. The stressful pace of life, and in particular the stress of interpersonal communication, could frequently overwhelm his capacity to cope with multiple stressors. He needed ongoing support to enhance his emotional intelligence, develop effective communication skills and to address symptoms of depression, anxiety and stress. Ms Makich recommended continued regular therapy sessions under a mental health plan. 5. This appears to have been the first of a series of at least 32 reports and progress notes about the applicant by Ms Matich between February 2018 and January 2023, including a risk assessment questionnaire dated 3 October 2020 (exhibit R2, pp 119 – 121). In it the psychologist states that the applicant had initially been diagnosed with depression but no longer suffered from it. He was not taking any medication that would have an adverse effect on his alertness and his condition would not impact his ability to exercise continuous or responsible control over firearms. He did not have the current potential to put public safety at risk if in possession of a firearm and had not previously posed such a safety risk. 6. In her latest report, dated 28 January 2023 (exhibit R2, pp 126 – 127), Ms Makich noted that he had initially presented extremely severe level symptoms of depression, moderate level anxiety and severe level symptoms of stress. He had been provided with psycho-education and supportive counselling and his relationship with Tiffany and the children had been improving. Their commitment to each other was strong and he had developed a bond with the four children, particularly the eldest son. He required ongoing support to enhance his emotional intelligence, develop effective communication skills and manage multiple psychosocial stressors. She recommended that he continue with regular therapy under a mental health plan. 7. The respondent submitted that little weight should be given to Ms Makich's reports on the ground that she did not appear fully to have considered the actions of the applicant in the incidents described, in particular the actual preparations made by him to commit self-harm on 7 February 2018, making only brief mention of them (exhibit R1, pp 108 – 109). Her assessment did not appear to have regard to the applicant's full mental health history or his history of past interactions with police. Mr Borenstein 1. The most recent psychological assessment is by Mr Sam Borenstein, dated 4 July 2023 (exhibit A2). His 9-page report recorded that the applicant had come to police attention in connexion with a two-year relationship with a girlfriend who used drugs, primarily cannabis and "ice". He describes the relationship as volatile and toxic, in which he developed symptoms of depressed mood for the very first time and entertained some suicidal ideation without clear intent. On one occasion he had been transported to Nepean Hospital and held for observation, and about that time saw a psychiatrist for one session, being prescribed medication that he did not take. 2. In about February 2018 he was eventually referred to Ms Makich, who assisted him to resolve his situational reactive depression. He had never exhibited violent behaviour towards his then partner or any other person but developed "emotional despair" at the prospect of losing his then partner and felt overwhelmed emotionally. With the benefit of hindsight he believed he had been emotionally immature and naïve. "Prior to consulting Ms Makich, Mr Ellis proactively made attempts to improve his mental health by way of listening to podcasts, YouTube videos, exercising and reading relevant mental health material" (id., 4). "Mr Ellis reflects on his acting out behaviour at that time, for which he feels embarrassed and burdened by guilt and remorse. Mr Ellis has never acted on suicidal ideation, and there is no history of self-harm behaviours" (ibid.). 3. His test results indicated that the potential for emotional or behavioural problems was substantially less than is typical for community adults. His profile ruled out serious psychiatric disorders such as psychosis, depression, suicidal ideation or intent, anger management issues, alcohol or substance use disorders and impulsivity. His results on the depression anxiety scale were normal. He did not suffer from a psychiatric or psychological disorder and no longer suffers from a depressive illness of the sort he experienced in response to his failed relationship in 2017, which came to the attention of police and mental health professionals. 4. Some of the issues raised by the police in their internal review were explained by a lack of sophistication and what the applicant described as immaturity and naivety with respect to his involvement with police, when he had not placed sufficient weight on the answers he gave to police questions or with the consequences. 5. He was capable of operating heavy machinery and large trucks and nothing in his history indicated a lack of responsibility or concern for public safety. He did navigate a period of time when he experienced an adjustment disorder with depressed mood, resulting in suicidal ideation without obvious intent. He had never exhibited violence or aggression towards others. 6. Mr Borenstein agreed with the applicant's self-description that he had lacked maturity and his involvement with the police and the Firearms Registry had raised concerns. But his history of emotional immaturity and naivety did not constitute a mental health impairment or psychiatric/psychological disorder. He had made a concerted effort to maintain contact with his treating psychologist every 1 to 2 months to ensure ongoing emotional growth and maturity, evidenced by his progress over the last five years, and being party to a stable relationship of three years. Acting as a stepfather and provider to his four stepchildren evidenced his personal growth and maturation. Mr Borenstein did not believe the applicant would be a danger to any member of the public or himself if granted a firearms licence. 7. The respondent submitted that, similarly to the Makich report, Mr Borenstein's assessment insufficiently considered the applicant's actions and mental health concerns displayed in 2018. It did not refer to his numerous threats of self-harm and admissions to hospital over that period or discuss in any detail his actions on 7 February 2018. Specifically, the respondent challenged the statement that "Mr Ellis has never acted on suicidal ideation and there is no history of self-harm behaviours", which contradicted the respondent's understanding of the events. It was also submitted that Mr Borenstein had no prior knowledge of the applicant, had interviewed him by AVL and had not received a full picture of the applicant's history, including his diagnosis of PTSD. When it was pointed out to him he did not change his opinion, though he would have considered the PTSD episode further. Incorrect information in applications 1. The respondent pointed out that the applicant had provided incorrect information in firearms applications. On 21 September 2022, he attempted to apply for a licence, but used the wrong form. In that application he answered "no" to the personal history 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?" (exhibit R1, p 61). 2. Then on 15 November 2022 when applying for a licence online, he answered "no" to the questions "Have you ever attempted suicide or self-harm? Have you, in the past 12 months, been referred for a mental or nervous disorder or illness?" (id., 69). 3. The respondent contended that those answers were false and misleading, as they directly contradicted his self-harm attempts in 2017 and 2018 (in particular on 7 February 2018) and his ongoing mental health treatment. Mr Borenstein's report mentioned that the applicant had been seeing a treating psychologist every one or two months to deal with mental health issues relating to stress and anxiety as well as emotional regulation. Ms Makich in her progress report of 17 September 2022 concluded that he required "ongoing support to enhance his emotional intelligence, develop effective communication skills and manage multiple psychosocial stressors". She recommended that he continue with regular therapy sessions under a mental health plan to address ongoing symptoms of stress and anxiety, also to enhance interpersonal skills and develop emotional intelligence" (exhibit R2, pp 124 – 125). 4. The respondent submitted that the applicant's failure to provide the correct information directly contravened s 70 of the Act and showed a lack of regard properly to comply with firearms legislation. The applicant's position was that he had not deliberately sought to mislead the registry but responded in that way because he honestly did not believe he was suffering from, or being treated, for a mental or nervous disorder or illness at that time. 5. He understood that the question asked whether he was being treated at that point in time, but he was using the sessions to gain further insight and skills, to learn about his psychology and to apply those skills. Mr Lowe submitted that the respondent's allegation was a serious one and that the evidence did not show any intent to deceive, but rather evidenced a reasonable subjective basis for his belief. He had not thought that Lillian was treating him for a mental health problem at that time, as his psychotropic medications had stopped well before. The inaccuracy of his answers in itself was inconclusive. 6. Mr Borenstein thought such concerns were "best explained by a lack of sophistication and what Mr Ellis described as immaturity and naïvety with respect to his involvement with police and his belief when he answered questions asked of him, however he did not place sufficient weight on the answers or with their consequences". He thought the applicant impressed as having no better than low average to average IQ. Ms Makich in her 28 January 2023 progress report referred to his difficulties with learning during his school years and he "continues to struggle with literacy and numeracy". Evaluation 1. The applicant has experienced several incidents that give rise to legitimate public safety concerns because of his expressions of suicidal ideation, in particular what I have called the rope incident, on 7 February 2018. The respondent interprets that episode as a suicide attempt, but the applicant explains it as an emotional overreaction to her leaving him and an attempt to get her attention and persuade her to return to him and denies any self-harm intention. At an earlier stage, however, he did comment that he had lacked the courage to go through with any act of self-harm, but that is somewhat ambiguous. It could have meant that he lacked the courage to form the intention, not simply to perform the act. 2. In this context it is helpful to refer to Ms Makich's letter to the Firearms Registry dated 17 September 2022, commenting on the internal review decision of 1 August 2022 (exhibit A1, pp 59 – 60). As regards the 28 September 2017 statement during an argument with Rachel that "I'm just going to go and kill myself now then", and "I am may as well end my life" and similar comments, Ms Makich observed that -- "[I]is noteworthy, that at no stage did Mr Ellis use a firearm, or hold a firearm in a threatening or menacing way, or any other weapon….. Moreover, throughout these arguments with his partner, Mr Ellis did not exhibit any violent behaviours towards his partner or any other person. Neither did he damage property, or have a violent outburst. What Mr Ellis did do, was exhibit his emotional despair at the prospect of losing his partner, but he did not exhibit violence. Mr Ellis realises that his choice of expression was dramatic and open to misunderstanding, but at that time he was feeling overwhelmed emotionally at the prospect of losing a person that meant so much to him. Since that episode, Mr Ellis has learned that his choice of words to express his emotional state can have negative consequences, and can be interpreted in unintended ways". 1. Ms Makich explained that the rope incident demonstrated how deeply he was affected by the breakup of his relationship with Rachel: With respect to his threat of suicide by placing a rope around his neck and sending photos to his partner, again demonstrates his level of despair and an awkward, and inappropriate, attempt to communicate his despair to his partner. Mr Ellis did not harm himself with the rope, he made no injury to himself with the rope. Further, Mr Ellis has not actually attempted suicide in any other form, such as pills, cutting, motor vehicle crash, and such like acts of self-harm and violence". 1. The letter describes the progress he has made since that time, stressing his continuing development of communication skills (as do her progress reports): [S]ince those episodes of 2017/2018, Mr Ellis has been in a few short-term relationships, and for the past three years he has been in a more serious relationship. Mr Ellis has managed the emotional ups and downs in these relationships with level-headedness, and has not become emotionally overwhelmed, despite the many different challenges he has had to face with each relationship…. It is my opinion, that over the past four years of psychological therapy, Mr Ellis has developed insight into his emotional responses and has developed emotion regulation skills. Mr Ellis has also put effort into developing better communication skills so that he can relate his emotional state without having to resort to dramatic gestures". 1. Ms Makich was not required for cross-examination, a relevant circumstance in this context, as the Court of Criminal Appeal has pointed out: Lloyd v R [2022] NSWCCA 18, [46] – [47]. 2. Although there were multiple threats of self-harm during the turbulent events of 2017 and 2018, there was no actual attempt at self-harm, nor has there been any history of other types of actual self-harm behaviour. The applicant has no history of violence or threats of violence towards others, no non-traffic criminal history and there is no evidence of any further self-harm ideation since 7 February 2018. He told Mr Borenstein that "I have not had any similar episodes, I've reinvented myself". When asked to elaborate, he said "I am more positive, I have a very different mindset. I believe I've matured. I'm calm. I am always looking for ways to be happier and improve myself. I've learned, I can only rely on myself to be happy. I focus on my physical and mental health and I'm succeeding" (exhibit A2, p 5). 3. Importantly, the applicant has shown a willingness to take active steps to treat any negative mentation that may arise. On 16 December 2017, before the rope incident, Nurse Busuttil reported that he had telephoned around to Lifeline and Men's Line, and had of his own motion seen a psychologist, Ms Virginia Keer, of Penrith (exhibit R2, p 95). He was eventually referred to Ms Makich, whom he has been consulting regularly (some 32 or more times) for five years, but before consulting her, "Mr Ellis proactively made attempts to improve his mental health by way of listening to podcasts, U-tube videos, exercising and reading relevant mental health material" (exhibit A2, p 4). 4. The Appeal Panel has recently acknowledged that credit should be given to an applicant where he or she has actively sought treatment for mental health issues (Ellley v Commissioner of Police, New South Wales Police Force [2023] NSWCATAP 237, [86]). The present applicant's proven willingness of his own motion to treat, and seek professional treatment for, a mental health disturbance reduces the risk of self-harm or harm to others and lessens any potential risk to public safety generally. 5. The three most recent mental health assessments all take the view that the applicant is not suffering from a mental disorder. The respondent was critical of Dr Teoh's report of 1 March 2021 on the ground that it did not reflect sufficient information about the applicant's mental health history. Be that as it may, Dr Teoh was certainly qualified to observe that "Mr Ellis's presentation is not consistent with a psychiatric condition. He had a brief reactive depression 5 years ago, from which he has fully recovered" (exhibit R1, p 58). 6. Ms Makich's risk assessment of 3 October 2020 (id., 104 – 106) explained that initially the applicant had been diagnosed with depression, but "no longer suffers with depression". Consequently there was no risk of relapse. Mr Borenstein likewise expressed the view that the applicant does not suffer from a psychiatric or psychological disorder. He "no longer suffers from a depressive illness of the sort he experienced in response to a failed relationship back in 2017, which came to the attention of police and mental health professionals and led to Mr Ellis's firearms licence being revoked". 7. On the basis of all the evidence, I conclude that while the applicant did experience a state of mental disorder some five years ago, his mental state no longer presents any real or appreciable risk to public safety, and I so find. 8. It is not disputed that the applicant on two occasions gave incorrect answers to questions in licence and permit application forms about treatment for a mental health disorder. He submits, however, that he genuinely believed at the time that the sessions he was having with Ms Makich were not in the nature of mental health therapy but were designed to help him become a better person by enhancing his communication skills and his management of emotion. He said he had no intent to deceive. At the hearing the applicant appeared to be a frank and candid witness, on occasion unhesitatingly making concessions against interest, and I accept his assertion that he had a genuine subjective belief that he was answering correctly. He appears to have interpreted the word "treatment" narrowly, as covering medication and other specific forms of therapy, rather than as including personal development and enhancing life skills. He had ceased taking any psychotropic medication long before he completed the forms. 9. Also relevant are Ms Makich's repeated descriptions of his continuing "struggle with interpersonal communications involving both professional and personal situations" and how he "continues to struggle with literacy and numeracy", as well as Mr Borenstein's estimate of his below average IQ, lack of sophistication and what the applicant called "immaturity and naïvety" in his dealings with police. I therefore conclude that the discretion in s 11(7) should be exercised in the applicant's favour on this issue. 10. Mr Lowe cited the recent case of Ireland v Commissioner of Police [2023] NSWCATAD 226, in which an applicant was contemplating suicide after discovering that his wife of 26 years was having an affair. He fashioned and strung up a noose, told his family that he was not coming home and held a knife to his wrist, and his wife had to stop him from using it on himself. Less than a year later, he completed an online renewal form and answered "no" to the question "Have you, in the past 12 months been referred or treated for a mental or nervous disorder or illness". On the recommendation of his general practitioner, he had sought the advice of a psychologist within that 12-month period, but said his sessions were about marital issues and focused on providing him with tools such as calming techniques to help with his mindset. He had never been charged with any criminal offence or misuse of a firearm. 11. In that case the tribunal pointed out that – "In Quinlan v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 3 the applicant placed himself on the ledge of a cliff in Sydney. He had consumed four Valium tablets and wrote suicide notes. The Tribunal accepted his evidence that this was a last-ditch attempt to save a relationship, that he was young and naïve….{H]e answered "no" to the question on the application relating to any previous attempt of suicide. The Tribunal found that the thought to commit suicide did not lead to a finding that the applicant posed a risk to the safety of the public. The Tribunal found that the applicant did not willingly mislead the Commissioner by his answer to the question on the application for the firearm licence and that he had a reasonable and accurate view that his conduct did not constitute an attempt of suicide…. In Matus v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 111, the applicant did not disclose that he had a mental illness in the firearm application. He did not believe that he had an illness or that he was receiving treatment for the illness even though he was receiving treatment from medical professionals (at [96] – [99]). 1. Andelman SM accepted that the noose incident was a "one-off 'cry for help'" situation. Immediately following the incident, the applicant had informed his wife as to what had occurred and sought medical assistance. The tribunal also accepted his evidence that he had a belief that he did not have a mental illness within the meaning of the Mental Health Act and set aside the reviewable decision. While each case before the tribunal must be determined on its own merits, it is noteworthy that in recent years similar cases to the present one have arisen and the statutory discretion has been exercised in the applicant's favour. 2. Whatever challenges the applicant may face with communication and literacy skills, the evidence shows substantial practical intelligence manifested in his successful career as an operator of heavy machinery and driver of heavy vehicles, including road trains. His unchallenged curriculum vitae (part exhibit A1) lists an unconditional MC/R, the highest grade of driver licence, as well as qualifications including excavator, forklift, front-end loader, articulated dump truck and skills as a motor mechanic, auto electrician and in medical assistance. Apart from the high degree of skill and judgment required for work of that kind, the applicant is likely to possess a high degree of safety consciousness. 3. His traffic record is not, however, unblemished. Since receiving his learner licence in May 2005, he has accumulated 10 contraventions for moving violations, but there are no infringements of the most dangerous kind, such as manner dangerous or high range PCA. He did, however, have the truck accident in 2007 which resulted in a charge of negligent driving occasioning grievous bodily harm, which was withdrawn. The record shows no contraventions of any kind since 26 March 2018 (following too closely, which he explained in his evidence). Ten contraventions in a period of 18 years on the part of a professional driver covering anywhere between several hundred and over a thousand kilometres per day does not rise to the level of constituting a substantial obstacle to the grant of a firearms licence on public safety grounds. 4. The applicant is a man aged 34 who has no criminal convictions, no history of violence towards other persons or himself, and no history of threatening violence towards others. Following a relationship breakdown he suffered from severe depression and made several threats of self-harm during 2017 and 2018. In an attempt to attract his ex-partner's attention and to induce her to return to him, he staged the melodramatic incident with the rope but did not attempt self-harm and says he had no intent to do so. He received mental health treatment that substantially improved his emotional balance and his coping ability. 5. In the view of three mental health professionals, including a psychologist who over the past five years has seen him at least 32 times, he no longer suffers from a mental disorder. There have been no instances of threatened self-harm or similar types of acting-out behaviours since February 2018. That is a sufficient time interval within the understanding in Crough. He works full-time as a heavy vehicle driver and machinery operator, holding very high qualifications in a field in which keen judgment and acute safety consciousness are of the utmost importance. 6. He is in a stable relationship of three years' standing and is successfully filling the role of stepfather to Tiffany's four children. On the totality of the evidence I find that the issuance of a firearms licence to him would involve no real or appreciable risk to public safety, as that concept is understood in Webb, and that it would not be contrary to the public interest for a licence to be issued to him. The decision under review should be set aside. Orders 1. Decision under review set aside. 2. A category AB firearms licence is to be issued to the applicant. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 October 2023