Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McMahon v Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 76 Hearing dates: 14 March 2024 Date of orders: 22 March 2024 Decision date: 22 March 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: Emeritus Prof G D Walker, Senior Member Decision: (1) Application dismissed for want of jurisdiction. (2) In the alternative, the decision under review is affirmed Catchwords: LICENSING – firearms licensing – licence revocation – want of jurisdiction – licence expired – public interest – possible suicidal ideation – mental health history not disclosed. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW) Cases Cited: Abdelaziz v State Cover Mutual Ltd [2015] NSWCATAD 125; Briginshaw v Briginshaw (1938) 60 CLR 316; Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42; BSU v Workers' Compensation Commission [2015] NSWCATAD 125; Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16; Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Hindmarsh v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 264; Hariri v Commissioner of Police [2022] NSWCATAD 5; Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218; Joiner v Commissioner of Police [2023] NSWCATAP 254; 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 366; Ly v Commissioner of Police [2004] NSWADT 115; Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97; McDonald v Director-General Social Security (1984) FCA 57, (1984) 184 FCRs 354 Meacham v Commissioner of Police [2020] NSWCATAP 107; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP Sterjovski v Director-General, Department of Transport [2002] NSWADT 10; Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Category: Principal judgment Parties: Mr Clancy D McMahon (Applicant) Commissioner of Police, New South Wales Police Force (Respondent) Representation: Applicant (Self Represented) Bartier Perry (Respondent) File Number(s): 2023/00345129 reasons for decision 1. The applicant Mr Clancy Darren McMahon applied to this tribunal on 31 October 2023 for review of the respondent's decision on 17 July 2023 to revoke his category AB firearms licence on the ground that it was not in the public interest for him to continue to hold a licence. 2. The revocation letter states that according to information available to police, while in the presence of police "you made admissions that you intended to shoot yourself and your dog, and made several similar comments to Police" (exhibit R1, pp 66 – 67). Those comments were made in the context of an RBT test which had found him to have a low range prescribed quantity of alcohol in his blood on 2 June 2023, which led to his driver licence being suspended. 3. The applicant had first been licensed for firearms as a primary producer on 21 April 1990 and had remained licensed until 13 April 1996, when his licence expired. The licence in issue in these proceedings was issued on 20 November 2017 and would have expired, but for its revocation on 17 July 2023, on 10 January 2024. On 14 September 2023 the applicant requested an internal review of the decision through his daughter Ms Keira McMahon (exhibit R1, pp 17 – 71), but as the review was not finalized within 21 days following the application, the applicant became entitled to seek review in this tribunal pursuant to s 53(9) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). 4. The respondent in support of the revocation also relies on a number of other facts and circumstances, namely that he has a recent history of mental health problems, that he admitted possessing and using a firearm while unlicensed in about May 2015, that following licence revocation he failed to comply with police directions to immediately surrender his firearms to police, that he had been less than candid with the Firearms Registry and his supporting psychologist and he failed to understand the obligations of a licence holder. 5. In written submissions filed on 13 February 2024 the respondent submitted that as the applicant's licence would have expired on 10 January 2024, the tribunal had no jurisdiction to hear the matter as it lacked the power to revive an expired license and could not provide any meaningful relief to the applicant. Consequently there was no merit in proceeding to hear and determine proceedings that are of no utility, following the Appeal Panel's decision in Joiner v Commissioner of Police, New South Wales Police Force [2023] NSWCATAP 254, [21] – [27]. 6. Following argument at the beginning of the hearing on 14 March 2024, I concluded for the reasons set out below that the respondent's contention is correct and that the tribunal does not have jurisdiction to entertain the application. Nevertheless, in case that conclusion was not correct, and because the parties had made full preparations for the hearing and were present and ready to proceed, I elected at the respondent's suggestion to proceed to a hearing on the merits and to decide the application on alternative grounds, namely either jurisdiction or no jurisdiction. The parties consented to that course of action, the applicant welcoming the opportunity to have his "day in court", so to speak. Jurisdiction 1. The respondent submitted that as the applicant's licence, but for the revocation, would have expired on 10 January 2024, the application must fail for want of jurisdiction, even though the licence would not have expired at the time the review application was made. The tribunal does not have jurisdiction to revive an expired license and cannot provide any meaningful relief to the applicant. As such there would be no merit in proceeding to hear and determine proceedings that are of no utility, consistently with the important Appeal Panel decision in Joiner v Commissioner of Police, New South Wales Police Force [2023] NSWCATAP 254. The Appeal Panel's approach and conclusions were as follows, at [21] – [26]: The difficulty which confronts the appellant, however, is that because her firearms licence is now expired, any order which we might make on appeal (or which the Tribunal might make on a remittal) would be of no utility whatsoever. This is so because there is no power in the Tribunal to revive an expired licence, or to extend licence periods. There is a lengthy chain of decided cases to this effect: [citations omitted]. In Bailey and Hariri, the Tribunal acknowledged a point made by the appellant in this appeal, namely that the record of a revocation would remain with applicants and would have to be declared in future applications. In Hariiri the Tribunal commented, at [62] that: In any future application by the Applicant for a firearms licence it would be appropriate that the Respondent take this decision into account. It is reasonable to expect that the fact that an administrative review (or indeed an appeal) is dismissed because it is of no utility, rather than on the merits, will be a factor to be considered when making any further decisions to which that dismissal is relevant. As submitted by the respondent, we accept that the principle underlying the decisions outlined above is correct. If the Appeal Panel were to hear and determine the appellant's appeal in this case, there is no order we could make that would have of any practical affect on her firearms licence. Setting aside the decision made by the Tribunal would have no practical utility. In her submissions the appellant argued that by proceeding to determine the appeal, the Appeal Panel would be providing a means whereby she could defend her reputation and that any decision we made would have a declaratory effect. Two points need to be made about this. First, the Tribunal (and the Appeal Panel) does not have jurisdiction to make declarations. The Tribunal is a creature of statute and the Acts conferring administrative review and internal appeal jurisdiction on it do not include a declaratory power. Secondly, as was argued by the respondent, the Appeal Panel should not give advisory opinions, particularly to public authorities such as the respondent: Re Judiciary and Navigation Acts [19211 HCA 20; [1921] HCA 20; 29 CLR 257. In People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253 (PWD) Beazley JA, with whom Allsop P and Handley AJA agreed said, at [11] to [14]: When questioned as to why the appeal should not be dismissed, the appellant contended that there was utility in the appeal because there were other proceedings on foot in the Tribunal which raised the same question, which it contended was in issue on this appeal, namely, whether ongoing conduct constituted a reviewable decision for the purposes of the Administrative Decisions Tribunal Act 1997. The appellant submitted that that issue had been wrongly decided by the Appeal Panel and unless corrected the Tribunal, would effectively determine the result, at least at Tribunal level, of the other proceedings. The Court does not have an advisory jurisdiction. At the time this appeal was filed, there was a real dispute between the parties, namely, whether the Appeal Panel had erred in holding that there was no reviewable decision of the Minister in respect of the two centres subject of the application. As the centres have been closed, there is now no relevant controversy between the parties in respect of which a decision of this Court would have any effect. In short, in respect of these two centres, the appeal is moot and of no utility. As a general rule, the Court, in such circumstances, would not entertain the appeal. However, the rule is a general one only and the Court retains a discretion to hear and determine an appeal which has been regularly commenced but where a change of circumstances means that any decision will be moot so far as the particular controversy between the parties is concerned. One of the factors which would cause the Court to exercise its discretion and determine the matter is where the decision subject of the appeal is likely to affect other cases: [citations omitted]. ,The Appeal Panel concluded that "the effluxion of time means that no matter what the outcome of the appeal, her firearms licence has expired. If she wants a new one, she must apply for it": ([27], citations omitted]. 1. The respondent acknowledged that a practice had grown up in the tribunal before Joiner of hearing such matters and making a decision on the merits but noting that no effective order could be made. Thus, in Hariri v Commissioner of Police [2022] NSWCATAD 214 the tribunal concluded (at [62]): As noted above, the Applicant's firearms licence expired before this matter came on for hearing. Neither the Respondent nor the Tribunal on review has power to reissue an expired licence: Sawires v Commissioner of Police [2010] NSWADTAP 68 at [12]. The practical effect of this decision is that the Applicant, if he seeks a firearms licence, will need to make a fresh application. I acknowledge that the Applicant will be required to disclose that he had previously had his firearms licence revoked. In any future application by the Applicant for a firearms licence it would be appropriate that the Respondent take this decision into account. 1. Mr Mattson submitted that Joiner had now made it clear that this was a wrong approach as any future decision by the respondent or the tribunal would have to be made on the basis of the facts and circumstances then existing. Consequently a conclusion by the tribunal on the merits would have no utility and the application must be dismissed for want of jurisdiction. That has actually been the approach I have taken in the past: BSU v Workers' Compensation Commission [2015] NSWCATAD 125, [40]; Abdelaziz v State Cover Mutual Ltd [2015] NSWCATAD 1, [32] – [33]. 2. Nevertheless, at the parties' request and given that the parties had prepared their cases for hearing and were present and ready to proceed, I conducted a hearing on the merits, on the basis that unless my conclusion on the jurisdiction point were incorrect, any findings and conclusions on the merits would be of no effect. Applicable legislation 1. Section 24(2) of the Firearms Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind (s 24(2)(a)) or for any other reason prescribed by the regulations ( s 24(2)(b)). 2. Clause 20 of the Firearms Regulation 2017 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. The issue in this application is thus whether the tribunal is satisfied that it would not be in the public interest for the applicant to continue to hold a firearms licence. The evidence 1. The respondent did not call oral evidence but instead relied on the documentary material, including the s 58 materials (exhibit R1) and statements by two police officers (exhibits R2 and R3). 2. The applicant did not lodge a witness statement as directed by Little SM on 5 December 2023, but instead filed two documents, one titled "Evidence and Submissions" (exhibit A1) and the other titled "Evidence and Submissions in Reply" (exhibit A2). They consist largely of material by way of comment and criticisms of the evidence of the two police officers, who were not, however, required for cross-examination. Mr Clancy McMahon (applicant) 1. The clearest statement of the applicant's version of the facts appears in his letter requesting an internal review dated 14 September 2023 (exhibit R1, pp 17 – 71) and in his cross-examination at the hearing. In the letter he stated that during a random breath test conducted by police on 7 May 2023, he made "a flippant remark" about shooting his dog and himself. It was a spontaneous, off-the-cuff comment, an expression of disappointment in himself at the circumstances which he had unwittingly brought upon himself. 2. He had just finished a long day at work and stopped off for a drink before heading home. He usually drinks mid-strength beer, and on that occasion had three mid-strength beers, then left to drive home. 3. Just out of town he was stopped by a police RBT operation. After the breath test, police informed him that he was over the legal limit and he was taken back to Moree police station. It was at the police station, after realizing that his driver licence would probably be suspended, that he understood that his ability to earn a living as a truck driver would be impacted. "It was then I made the stupid remark 'I might as well put a bullet in me and my dog'". 4. The letter continued, "I can inform the Firearms Registry I have no history of mental health problems. There is no basis or evidence, apart from his [the applicant's] flippant remark to police, to support a view that I may no longer be able to personally exercise continuous and responsible control over firearms". The Commissioner had no reasonable cause to believe that his comment was anything other than a silly and inappropriate remark. 5. Cross-examined by Mr Mattson on behalf of the Commissioner, the applicant said he had held a licence from 1990 to 1993. He had received a visit from police in May 2015 who stated that he had admitted borrowing and using a firearm at a time when he was not licensed. He said that was not true, and when asked if he had at first refused to speak to the police, he replied that he had told them that there was no gun on the premises. After police commenced a search, he did tell them he had been in possession of a firearm but had returned it to the owner, adding that "I told them what they wanted to hear". His wife had told the psychologist about it. 6. In relation to the statement in his internal review request that he had no history of mental health problems or treatment, he said he had never been suicidal and did not know what mental health was. In any case it was "not relevant". He agreed that he had attended at Pius X Aboriginal Health Centre in Moree, because, he said, he was "unwell". He did not recall telling the staff at the centre that he was suffering from stress or alcohol abuse problems. He did not recall the staff telling him he had symptoms of depression or that on 12 January 2022 they had discussed with him problems of low mood and alcohol abuse. He had not told them he had experienced suicidal thoughts. 7. He acknowledged that he had been prescribed anti-depressant medications but said he had dropped them after 3 or 4 days, and that he had entrusted the keys to his gun safe to a friend because he had been depressed as he did not know what was going to happen, but he was not suffering from a mental health problem. He did not understand what mental health was. He had been overworked and sad at the time, but not suffering from mental health issues. He did not recall having been referred for psychological counselling and could not remember most of the appointments. 8. Asked whether his general practitioner had said he was suffering from a major depressive disorder, he replied "Not that week" and said he had been tired. The discussions with his counsellor were "like talking to a friend". The complaints levelled against him were not relevant. He did not recall telling his general practitioner on 18 February 2022 that he was experiencing a low mood but no more suicidal thoughts, but he had told his general practitioner that he had been suffering from stress in November 2022. 9. When undergoing his psychological assessment by Mr Michael Kruger-Davis, he did not mention his prior mental health history because it was not relevant and the psychologist had not asked him about it. He said he did not know what they had in fact discussed and then said he did not recall Mr Kruger-Davis asking him about mental health or suicidal thoughts. He had told the psychologist that he avoided doctors and had not told him about past treatment because it was "not relevant". 10. His statements at the RBT about shooting himself and his dog had not been threats and he did not recall telling Constable Russell that he was going to go home and shoot himself, but he did remember the officer telling him it was important to surrender his firearms and had been offered two choices. He had not told the paramedics that he intended to self-harm. When asked whether he had been suffering from a memory problem from 2021 onwards, he replied that "I remember what I need to remember". 11. He agreed that he had said to police that he had paid for the firearms and they belonged to him, but they could have them if they gave him the money for them, but said the comment had been made "tongue-in-cheek". He had not immediately surrendered his firearms because he believed that as his licence had been suspended, he had no right to touch them. Mr Michael Kruger-Davis 1. Giving evidence at the hearing by telephone link, Mr Kruger-Davis adopted his psychological report dated 20 November 2023 (exhibit A3) and explained that he had spoken to the applicant on 16 October 2023 after being contacted by Mr Steve Larssen, from the office of the Hon Roy Butler MLA, member for Barwon. That discussion had been part of a triage process, as he was selective about the clients he would undertake to assess, as well as for the purpose of setting a date for later consultations. Subsequently he had a video conference with the applicant lasting 1 hour 20 minutes during which he administered questionnaires. 2. He agreed that the applicant had answered in the negative to many questions. He had asked the applicant about his mental health history and had been told that there was none and that he had never had any suicidal thoughts he said he had no treating doctor and avoided doctors, a reply which, Mr Kruger-Davis agreed, would tend to support the view that he had no mental health history. He said that it was difficult for him to see a doctor and that for that reason he had not contacted his GP. He said he had never been treated by a counsellor but admitted consulting Anne Gilchrist after his grand-daughter had died. He had not mentioned seeing Annabelle Simpson, nor his regular morning suicide thoughts as noted at Pius X on 12 January 2022 (exhibit R4, p 19), and added that that he was not taking any anti-depressant medication. He did not mention that he had entrusted his gun safe keys to a friend. 3. He had not said that he had experienced violence in his life or that he had been referred to a counsellor by his GP, although he did mention Anne Gilchrist. The witness could not recall whether the applicant had mentioned that his father had been abusive. When he had written in his report that he detected no predisposing or precipitating factors for suicide, that was the situation when he saw the applicant at a time when the factors were different. 4. Mr Kruger-Davis agreed that there was much that the applicant had not told him about, but pointed out that he had been assessing him at that particular point of time. Agreeing that his assessment could only be as good as the information he was given, he suggested that the applicant's answers at the time would not be affected. The report was as at this time. The applicant's past would be relevant if the predisposing or precipitating factors were still current, but the witness agreed that he could not test for factors that he had not been told about. Applicant's submissions 1. In his written submissions (exhibit A1) the applicant disputed Cst. Russell's report that he had said he was going home to shoot himself. He referred to the Ambulance Electronic Medical Record report on 2 June 2023 which said that "The patient made threats to police that he would shoot himself and his dog. The patient denied this to Paramedics saying that he said he might as well shoot himself. The patient also when asked by paramedics if [he] had contemplated self-harm initially said yes then retracted saying yes". 2. Dr Omar's comments in the Moree hospital emergency department triage notes dated 3 June 2023 stated that "Patient aged 57 was found to be driving under alcohol influence so his licence was withdrawn. Patient said he should shoot himself and his dog… He said he mentioned that because he was angry and he has no intention to harm himself". Those accounts are close in time to the events and therefore more reliable than Cst. Russell's record, which was prepared 10 hours later. They also convey a very different impression of the events and of the applicant's thoughts and intentions from that in the officer's recorded version of events. 3. The Commissioner's revocation of his licence was made on false grounds, through failure to comply with the explicit instructions set out in the Firearms Registry Decision Making Guidelines (August 2019), which stressed that a threat of suicide or self-inflicted industry in itself was not sufficient. There were a number of other administrative anomalies surrounding the decision. 4. In response to the Firearms Registry's request of 4 October 2023, a mental health risk assessment dated 20 November 2023 was submitted to the Firearms Registry. The report affirmed that he is fit and proper to possess and use firearms in accordance with the legislation, that he does not pose a suicide risk and that there are currently no factors indicating that he would not be able to exercise willpower and continuous control if he were to possess and use firearms. 5. When considering the question of public safety, it was necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances: Webb v Commissioner of Police [2004] NSWADT 110, [32]. Only real and appreciable risk needed to be taken into account; minimal, fanciful or theoretical risk could be excluded from consideration. In Meacham v Commissioner of Police [2020] NSWCATAP 107, [54], the Appeal Panel stated that the tribunal is required to base its findings of fact on "logically probative material" and not on "mere suspicion or speculation". 6. The applicant acknowledged that he had made remarks to police on 2 June 2023 that he "might as well" shoot himself. Those remarks were made when he was intoxicated. They were flippant and inappropriate and were made in anger and frustration at his stupid behaviour which had resulted in suspension of his driver licence. They were not an admission of any intention to harm himself. 7. In his submissions in reply the applicant acknowledged event report E 57934045 that he had admitted borrowing a firearm from a family member to kill a wild pig on his property. That was not, however, factually correct. When he had arrived home at about 7:30 p.m. on 29 May 2015, he had just finished a long and hard day of fencing work at Narrabri. He was physically exhausted. Arriving home to the site of several police vehicles and many officers was worrying and intimidating. He was confused and did not know what was going on. His first thought was whether there had been an accident involving his daughters, about his welfare he was concerned, especially his middle daughter with Asperger's syndrome. He was concerned about the presence of police causing alarm to them. He made untrue admissions to police that he had borrowed the firearm, believing that would prompt them to leave the property. He made no admission that he had actually used the firearm. 8. He rejected the assertion that he had attempted to hide any mental health issues either from Mr Kruger-Davis or in the current proceedings. The psychologist was fully aware that police held concerns about his mental health. He had answered all Mr Kruger Davis's questions honestly and made no attempt to hide anything from him. 9. His comments at the RBT on 2 June 2023 about shooting himself were flippant and made out of frustration. As a Christian (non-practising) he would never take his own life. That was supported by the medical records from Pius X Clinic for his 12 January 2022 consultation. The other strong motivation for him for not taking his own life was his three daughters. He would never cause them the pain they would experience if he were to do so. 10. He rejected the allegation that he had failed to comply with police directions to immediately surrender his firearms to police, pointing out that when his driving license was restored, he was away from home working in regional Queensland for several weeks from late June 2023 through to mid-August 2023. The applicant also referred to a number of what he described as "anomalies" in Cst. Russell's report. For the reasons set out above he also rejected the allegation that he had been dishonest and lacking in candour with the Firearms Registry and his supporting psychologist. 11. He fully understood the obligations of a firearms licence holders, having had licence issued in 1990 and 1993, and had always used them safely and complied with safe storage requirements. Following the birth of his daughters he made a conscious decision not to have any firearms in the house. He had successfully completed the firearms safety and training course. A safe storage inspection in September 2021 had found him to be in compliance with all components in the police checklist. 12. The Commissioner had no "reasonable cause to believe" that he failed to understand the obligations associated with a licence. The reasonable cause test is an objective one: Ly v Commissioner of Police, New South Wales Police Force [2004] NSWADT 115 and is not satisfied by mere assertion. It requires more than mere suspicion or conjecture. 13. In oral submissions at the hearing the applicant reiterated that in 2015 he had been fencing all day and that there had been no firearm at the property. But when he arrived home there were six police vehicles and he became upset. He had not lied in his licence application, as he had been treated at Pius X Clinic in 2022, but had obtained his licence in 2018. He had not immediately returned his firearms when directed, because he did not have the keys to the gun safe, which were 100 km away. He also did not wish to touch the guns as his licence had been suspended. 14. He had not told the paramedics that he was going to shoot himself, only that he "might as well" do so. He had said the same thing to Dr Omar at Moree hospital. Everyone says the same thing except Cst Russell, who had made mistakes in recording the events. He had never had any suicidal intent, as his religious background and the needs of his daughters (and now a grandson) would prevent it. Consideration Approach 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 Civil and Administrative Tribunal Act 2013 (CAT Act) (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). 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 ground on which the respondent relies is that it would be contrary to the public interest for the applicant to continue to hold a licence. The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16. 2. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety. 3. 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". 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 history 1. In his internal review request dated 14 September 2023 the applicant wrote that "I can inform the Firearms Registry I have no history of mental health problems" (exhibit R1, pp 70 – 71). In his consultation with his supporting psychologist, Mr Kruger-Davis, he stated that he has never thought of suicide and expressed strong religious objections to it (exhibit A3, pp 3 – 4). 2. The medical records produced on summons by Pius X Aboriginal Corporation of Moree, however, show that he has a recent history of mental health problems between 21 December 2021 and regular consultations with doctors (exhibit R4, p 1). Between 21 December 2021 and 18 March 2022, he was being prescribed anti-depressant medication for sleep and depression (id., p 1). On 21 December 2021 he was reported to have "signs and symptoms [consistent with] depression; [disturbed] sleep, loss of motivation, loss of interest and excessive drinking, consuming alcohol daily, and on some days up to 12 beers. He was counselled about alcohol and his mental health, and denied suicidal ideation (id., 9). 3. Indeed, his psychological state appears to have been cause for concern as early as 2015. Inspector Botha related (exhibit R2) that on 29 May 2015 police received a fax from Mark Washburn, a psychologist working at the Moree Community Health Centre at the time. The fax stated that the applicant's (later estranged) wife had disclosed to Mr Washburn that the applicant had an unregistered .22 at his property at Ashley (near Moree). The point of that for present purposes is that the applicant had some involvement with the mental health community at that time and that he may therefore have been suffering from a mental health condition at least as early as 2015. Inspector Botha was not required for cross-examination. 4. Significantly, on 12 January 2022 the applicant is recorded at Pius X as having reported "suicidal thoughts most mornings", though no plan or intent (id., 8). Again, on 12 January 2022 he told Annabelle Simpson, a counsellor at Pius X, that he "gave keys to his gun cupboard to a friend, aware he is vulnerable" (id., 7). A week later he told a doctor at the clinic that he was "not suicidal this week" (ibid.). He continued to see the counsellor at least until 20 February 2022 (id., 6). On 17 November 2022 he said that he "has been feeling more stressed recently" (id., 4). 5. The applicant submitted that the police investigation was invalid because it had failed to comply with the Firearms Registry's Decision Making Guidelines 2019, which at p 26 state that before relying on attempted suicide, an actual attempt, not a threat, is required. That was not correct, however, as the guidelines are there concerned with decisions made under s 11(4) of the Firearms Act, whereas the applicant's licence was revoked on public interest grounds. In any event, in merits review, procedural defects in reaching the decision under review are not material. 6. There is thus a prior history of the applicant's suffering with depression and suicidal thoughts, which forms the background to understanding the incident of 2 June 2023. Whether applicant expressed suicidal intent on 2 June 2023 1. It was when he was told that his driver licence would be suspended after he had recorded a low-range PCA at Moree that, according to the event report, he repeatedly told police that he was going to go home and shoot himself and his dog and was suffering with depression (event E 77979515, 3 June 2023, exhibit R1, p 36). In his statement dated 11 February 2024 (exhibit R3), Cst. Russell records that "Mr McMahon reacted to the suspension of his driver's licence by saying words to the effect like 'I am going to go home and shoot myself and my dog'. He repeated these words several times and informed me that he had been feeling depressed over the last few weeks due to some family losses". 2. "Concerned about Mr McMahon's safety I asked him whether he was serious about his comments. I recall Mr McMahon assuring me he was serious and repeated his intentions to me saying words to the effect like 'I am going to go home and shoot myself and my dog'. Concerned for his health and safety, I remember calling the Ambulance to have Mr McMahon scheduled under s 22 of the Mental Health Act 2007" (ibid.). The account was consistent with the custody management record that was completed on the evening of 2 June 2023 (exhibit R1, p 48). 3. The paramedics' notes report that he made threats to police that he would shoot himself and his dog: "The patient denied this to Paramedics saying that he said he might as well shoot himself. The patient also when asked by Paramedics if he had contemplated self-harm initially said yes then retracted saying yes". He was then transported to Moree Hospital under police schedule 22 and in police custody (exhibit R4, p 35). The respondent noted that the applicant claimed his comments were "flippant" remarks to police made under intoxication and in anger, but submitted that he was in the low range of blood-alcohol content and viewed in totality, and against his medical history, it was difficult to form that conclusion, considering his repeated comments, reiteration of intention and mental health history. 4. In his consultation with Dr Omar at Moree Hospital on 3 June 2023 he said that "He should shoot himself and his dog" (exhibit R4, p 32). It seems unlikely that he could still have been making "flippant" remarks about suicide to a hospital doctor at 9:00 a.m. the following day. The applicant stressed that most of the witnesses reported him as saying "he should", or "he ought to" commit suicide and that only Cst. Russell, whose report was prepared 10 hours after the event, had heard him express an actual suicidal intent. 5. That interpretation of the offence is perhaps a little too subtle. The comments were spontaneous, not the result of a drafting exercise. The fact that a person makes multiple remarks about suicide to three different groups of official or medical personnel with whom he is interacting in the course of their duties is a weighty consideration, regardless of whether expressed as an intention or as something that he "ought" to or "should" do. Further, it should be noted that Cst. Russell specifically asked the applicant if he was serious about what he was saying, and the applicant said he was, repeating that he was going to go home and shoot himself and his dog. As the officer was not required for cross-examination, his evidence stands unchallenged. 6. The applicant stressed that his religious convictions and beliefs about the afterlife as a non-practising Christian would never allow him to take his own life, as would his desire to care for his three daughters (the youngest of whom is now 21). One would not think that a person deeply holding such beliefs and expectations of himself would even entertain suicidal thoughts, let alone keep repeating them to police, paramedics and doctors. There thus appears to be a risk that the pressure of circumstances could at times override his higher feelings and create a risk to public safety or his own safety. 7. In light of all the evidence on this point, including his prior history of treatment for depression, his "suicidal thoughts most mornings", his alcohol problem and his entrusting the keys to his gun safe to a friend because he felt "vulnerable", I conclude that the applicant did suffer from suicidal ideation on or about 2 – 3 June 2023. The psychologist's report 1. The applicant tendered a detailed report dated 20 November 2023 (exhibit A3) from an experienced psychologist, Mr Michael Kruger-Davis, who had been contacted initially by the office of the Hon. Roy Butler MLA asking if he could refer the applicant for a mental health assessment as requested by the Firearms Registry. That request was set out in a letter from the registry dated 4 October 2023 (exhibit R1, p 74). 2. In his instructions to the psychologist, however, he stated that "he has never thought of suicide" and when asked about his health said that he "avoided doctors". In light of the above evidence, those statements appear to be far from the truth. 3. The report is quite supportive towards the applicant's case. It concludes that he does not have a mental disorder and "does not currently present with depression, anxiety or overwhelming psychological distress", and there was no evidence of major depressive disorder. He did not drink alcohol excessively or take illicit or prescribed drugs that would impact on his ability to possess and use firearms. He operates heavy machinery safely and responsibly on dangerous roads within New South Wales and does not pose a suicide risk. There were no predisposing, precipitating or perpetuating factors that would elevate his suicide risk profile. He had a number of sound protective factors that indicated he is looking forward to his future. He currently holds no fears for the future. 4. In cross-examination Mr Kruger-Davis said he had asked the applicant about his mental health history and was told that there was none, and that he had never had suicidal thoughts. He said he avoided doctors and as it was hard to see a doctor he had not contacted his GP. He denied being treated by counsellors, although he did say he had seen Anne Gilchrist after his granddaughter had been stillborn, but did not mention Annabelle Simpson. He did not mention his "suicidal thoughts most mornings" and said he was not currently taking any anti-depressant medications but apparently did not say he had taken them in the past. He did not reveal that he had been sent to a counsellor by his GP. 5. The psychologist agreed that there was much about the applicant's past that he had not been told about but said that he had been assessing the applicant at that time. He agreed that his opinion could only be as good as the information he had been given. He acknowledged that the applicant's mental health past would be relevant if the predisposing and precipitating factors were still current, and agreed that he could not test for them if he had not been told about them. 6. The applicant was less than open in providing his medical history to the psychologist. He represented that he had never had thoughts of suicide, which was contrary to the medical records from Pius X. He claimed that he was not taking any medication and avoided seeing doctors. Although those statements could have been true at the time they were made in October 2023, the applicant neglected to provide Mr Kruger-Davis with the opportunity to obtain relevant information such as the applicant's recent mental health history and prescription of anti-depressants. In several places the report is careful to state that its conclusions are based on evidence of the applicant's current condition. While the report is helpful as far as it goes, as an appraisal of the applicant's current state, given the major omissions of relevant facts in the background supplied to the psychologist by the applicant, it is of limited assistance in resolving the issues before the tribunal. 2015 – the unlicensed .22 1. On 29 May 2015, police responded to a notification that the applicant was in possession of a .22 at a time when he was unlicensed, his licence having expired some years earlier. 2. Following receipt of that information, which had come from a psychologist at Moree Community Health Centre, police attended the applicant's property at Ashley for the purpose of carrying out an inspection. In his statement dated 5 February 2024, Inspector David Botha related that in company with two other officers he arrived at the property and after some delay was told by Mrs McMahon that she had not seen the rifle since 24 May 2015, having last noticed it behind a cupboard in the outside laundry. She consented to the search. 3. The applicant arrived home while the search was in progress and the inspector gained the impression that he was flustered that police were at his residence. He proceeded to explain to the applicant why they were there searching for the alleged firearm. Initially the applicant refused to speak to the officers but subsequently revealed that there had been an unregistered firearm on the property that he had borrowed from a family member to shoot a wild pig on his property. He had already returned it to the family member. Inspector Botha was not required for cross-examination. 4. In cross-examination when asked if he had admitted borrowing the rifle he said that it was "not true", but then said that as the search continued he told them that he had been in possession of a borrowed firearm but had returned it. His explanation was that he had "told them what they wanted to hear". On returning home to find the residence seeming to him to be swarming with police (there were multiple police vehicles, apparently), he became concerned about the effect it might have on his three daughters, especially one suffering from Asperger's. His aim had been to get the police to leave the property. The incident and his ambiguous version of the events do not reflect great credit on him, but no firearm was actually sighted and the episode does not appear to have been treated as an obstacle to his holding a licence, as a new one was issued on 20 November 2018. Delays and partial non-compliance with s 25 1. From 3 June 2023 to 14 August 2023, Cst. Russell attempted at least a dozen times to serve a suspension and revocation notice on the applicant and take possession of his firearms (part exhibit R3). Each time he would attempt to notify the applicant by leaving cards or notes asking him to contact Moree police about his firearms (ibid.). The applicant must have been aware of the many attempts by police and the registry to serve the notice. After being served with the revocation notice on 18 August 2023, he failed immediately to surrender his firearms to police, claiming the keys to his safe were not in his current possession (ibid.), In his oral evidence he said he had not immediately surrendered the firearms because he did not think he could touch them while his licence was suspended, a spurious pretext. He had explicitly been told that he needed to surrender the firearms and his licence to police in accordance with s 25 of the Firearms Act. 2. When served with the revocation notice on 18 August 2023, he was instructed to deliver his firearms to Moree police. Cst. Russell said that he replied with the comments that "I've paid for them they're mine", "I haven't done nothing wrong I haven't broke no laws. I don't see why youse have got to take them…. I have paid for them if you give me the money then youse can take them". He still failed to deliver the firearms to police and instead surrendered them to Moree Gun Shop (ibid.). The incident suggests an obdurate unwillingness to comply with the requirements of the Act, or at least some of them. Evaluation 1. The applicant is a man aged 57 who works as a truck driver and stockman. He has no criminal convictions and no record of violence or threatened violence against others. In the years in which he has been licensed he has no record of using firearms in a careless or inappropriate manner, although there have been instances of him failing to comply with other requirements of the legislation. He did have a record of alcohol abuse but appears to have put that period behind him. He has no history of drug abuse or of associations with gangs or other criminal elements. 2. At the hearing in response to at least seven questions about recent incidents or circumstances in his life that he could be expected to remember, he claimed to have no recollection. He said he could not recall telling Cst. Russell on 2 June 2023 that he was going to go home and shoot himself and his dog, nor could he recall telling the paramedics that he intended to self-harm in that way. Apparently he did have some recollection of the RBT incident, as he said his comments did not represent a threat. When finally asked, with perhaps a touch of irony, whether he had developed a memory problem from 2021 onwards, he replied that he remembered what he needed to remember. 3. His evidence in relation to his mental health history was less than satisfactory. In his 14 September 2023 letter to the registry requesting an internal review, he had written that he had "no history of mental health problems". When asked about that statement he said that he had never been suicidal, and that he did not know what "mental health" was, which was scarcely plausible coming from someone who had been receiving psychological counselling since at least 2015. He also said that information about his past mental health was "not relevant". 4. He also said that he had not told Mr Kruger-Davis about his mental health history because it was "not relevant". He claimed that the psychologist had not asked him about it, although he did not recall what they had discussed. But in relation to mental health and suicidal ideation, he had replied that he avoided doctors. When it was put to him that he was endeavouring to hide his mental health history, he replied that he did not tell Mr Kruger-Davis about it because it was "not relevant". 5. The key factor bearing on public safety and public interest in this case is the applicant's mental health history and the incident of 2 – 3 June 2023. He has a history of mental health care going back to at least 2015 and there are multiple references to suicidal thoughts or ideation, though no actual attempt. His efforts at dismissing his repeated comments about shooting himself and his dog on 2 – 3 June 2023 as mere passing flippant remarks are inconsistent with the evidence of his repeating and confirming the comments, including the following day. His repeated claims that his mental health history is "not relevant" defy common sense and his withholding of it from Mr Kruger-Davis deprives the psychologist's report of much of its value. In the absence of recent psychological or psychiatric evidence in relation to his fitness and ability to possess and use firearms without risk to public safety or the peace that takes account of his past history of problems and treatment, the tribunal must conclude that his holding of a licence would present a real or appreciable risk to public safety (including his own safety), as that concept is understood in Webb. 6. In accordance with the approach set out above, I therefore find that the tribunal has no jurisdiction to hear the application or, in the alternative, it would at present be contrary to the public interest for the applicant to hold a firearms licence. Orders 1. Application dismissed for want of jurisdiction. 2. In the alternative, 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: 22 March 2024