Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59 Hearing dates: 23 September 2013, 18 November 2013, 23 April 2014 Decision date: 12 May 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Professor G.D. Walker, Senior Member Decision: Decision under review set aside. Catchwords: Firearms licence refusal -fit and proper person -public interest - issue estoppel. Legislation Cited: Administrative Decisions Tribunal Act 1997; Firearms Act 1996 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321; Brosowski v Commissioner of Police [2003] NSWADT 182; Commissioner of Police v Toleafoa [1999] NSWADTAP 9; Cusumano v Commissioner of Police [2001] NSWADT 50; Davos v Commissioner of Police [2013] NSWADT 7; Lynch v Commissioner of Police [2006] NSWADT 80; Martin v Commissioner of Police [2010] NSWADT 276; Mewborn v Commissioner of Police [2009] NSWADT 24; Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212, (1981) 61 FLR 354; Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197, (1999) 91 FCR 234;Stranges v Commissioner of Police [2004] NSWADT 221; Re Toro Martinez and Minister for Immigration and Citizenship [2008] AATA 511; Ward v Commissioner of Police [2000] NSWADT 28; Vella v Commissioner of Police [2003] NSWADT 91; Webb v Commissioner of Police [2004] NSWADT 110. Category: Principal judgment Parties: Robert Bruce Green (Applicant) Commissioner of Police, New South Wales Police Force (Respondent) Representation: Malcolm Carr (first hearing date); Applicant in person (second hearing date) G Kable (applicant, third hearing date) File Number(s): 133207 reasons for decision Background 1On 18 September 2012 the applicant Robert Bruce Green (date of birth 20 August 1968) lodged an application for a category AB firearms licence for the purposes of target shooting, recreational hunting and vermin control. He had previously held a firearms authorization under the Firearms Act 1998 from 21 January 1993 until 28 January 1998. 2The application was refused on 15 November 2012 on the ground of s 11(5)(e) of the Firearms Act 1996 (the Act), which debars the Commissioner of Police from issuing a licence to a person who is subject to a firearms prohibition order. The applicant, a former New South Wales police officer, had been made the subject of an apprehended violence order (AVO) on 9 February 1995, which was upheld on 30 in September 1995 by Phelan DCJ of the District Court. The AVO was expressed to be for the protection of a police officer with whom the applicant had served in the police ballistics unit, Constable Fiona Charleston (in these reasons Constable Charleston for the sake of convenience will be referred to as Fiona). A firearms prohibition order was issued against the applicant on 9 July 1996, but it was never validly served and did not take effect. The AVO expired on 13 September 1999. 3On 7 December 2012 the applicant applied for an internal review of the refusal. The Commissioner's decision was affirmed by the reviewing officer on 17 June 2013. The reviewing officer realized, however, that the firearms prohibition order had never taken effect and accordingly based his decision on other grounds, as he was entitled to do (Stranges v Commissioner of Police [2004] NSWADT 221, [10]). 4Mr Green applied for a review of the Commissioner's decision by the Administrative Decisions Tribunal on 10 July 2013. The matter came on for hearing on 23 September 2013, but evidence was incomplete and a summons had not been complied with. Further, certain medical records had not yet been received. Accordingly the matter was adjourned to 18 November 2013. In the interim the applicant's then solicitor filed written submissions dated 21 October 2013 in accordance with a tribunal direction, but no witness statements were lodged. When the matter came on for hearing on the adjourned date, the applicant's then solicitor failed to appear. The matter accordingly proceeded with the applicant presenting his own case. 5As the Administrative Decision Tribunal was superseded on 1 January 2014 by the Civil and Administrative Tribunal, it should be noted that the proceedings continue in the present tribunal and that the law to be applied is that which would have applied but for the enactment of the Civil and Administrative Tribunal Act 2013 (CAT Act): schedule 1, part 2, division 3, subdivision 2, item 7 of the CAT Act. 6Section 11 of the Act provides as follows: 11 General restrictions on issue of licences (cf 1989 Act s 25, APMC 4, 5, 6) (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. (2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made. (2A) Subsection (2) does not apply if the application is for the renewal of a licence (including the renewal of a category A or B licence that involves the addition of either of those licence categories to the previous licence). (3) A licence must not be issued unless: (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and (b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State. (3A) Despite subsection (3) (b), the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned. (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of: (a) the applicant's way of living or domestic circumstances, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind. (5) A licence must not be issued to a person who: (a) is under the age of 18, or (b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or (c) is subject to an apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to such an order (other than an order that has been revoked), or (d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations, or (e) is subject to a firearms prohibition order. (5A) A licence must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that: (a) the person is a risk to public safety, and (b) the issuing of the licence would be contrary to the public interest. (5B) The Commissioner is not, under this or any other Act or law, required to give any reasons for not issuing a licence on the grounds referred to in subsection (5A). (6) Except in the case of a firearms dealer licence or where the applicant's genuine reason is business or employment, a licence must not be issued to a person who is not a natural person. (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence. Issue 7The issue in this case is thus whether the Commissioner's decision to refuse the applicant act a category AB licence is the correct and preferable one. That entails two sub-issues, (1) whether the applicant is a fit and proper person to have firearms within s 11(3)(a) of the Act, and (2) whether the issuance of a licence to the applicant would be contrary to the public interest within the meaning of s 11(7) of the Act . The evidence 8The applicant gave sworn evidence, but as no witness statement had been filed for him, it was somewhat unstructured. He began by stating that he had commenced duties with the police force on 10 June 1988. After some time on general duties, he worked at the police ballistics unit in Surry Hills from June 1993. 9After a time a woman constable, Fiona, arrived in the unit. As the supervisor did not appear to welcome her presence, the applicant befriended her but was harassed for doing so. Because of the resulting stress and a pre-existing coeliac condition, he had to undergo major surgery in September 1994. 10While he was in hospital, Fiona took out an AVO against him but he did not know why. On 1 August 1994 he had said to her, "There is nothing between us, but for the sake of my career I will have to ignore you". Fiona had replied, "I won't be ignored" and had stormed out of the room, subsequently lodging a complaint against him. 11He was then moved to the bomb disposal section on the ground that he was thought to be violent and suicidal. That was untrue, but the supervisor wanted to put distance between Fiona and himself. He was fully operational while at the bomb squad. 12The firearms prohibition order issued by Phelan DCJ was expressed to be for 10 years, but the new legislation made the order for life unless the person made a new application for a licence. He wanted to resume 22 target rifle shooting as a relaxation. It is an enjoyable pastime and an Olympic sport. 13The applicant left Australia for the United States, remaining away from 2 September 1994 until 20 September 1994 as an official visit to enable him to inspect firearms manufacturing plants, including Colt and Winchester. On 2 August 1994 Fiona had said to him, "I'm sorry I've f****d up your life and f****d your career". He still did not know the nature of her complaint or of the investigation, if any. He had in any event wanted to move out of the section. 14The evidence against him was fabricated. For example, Const. Terry Shepherd alleged that he had said he had been molested by a priest as a boy, but that was not so. What had happened was that on Melbourne Cup day in 1980 he had suffered a fall and had been taken to Sutherland Hospital. While he was there a female nurse giving him a sponge bath had handled his genitals. The evidence about his being a paedophilia victim was false. 15As regards the public interest, his licence had been used for the public benefit. While working in a murder investigation he had used his licence to purchase ammunition for the investigation. On another occasion, while he was in the bomb squad he had purchased rifle powder for use on a bomb disposal course to demonstrate that it could be used as an explosive. He was fully qualified for the bomb disposal squad. He had always given the greatest emphasis to safety. While in the police force, he had made a standard practice of always carrying his gun unloaded as an additional safety precaution. 16When he had returned to the ballistics section, Fiona had said she would take him to the Hellfire Club in Sydney, apparently a venue for generalized libertinage. He had refused to accompany her. 17The applicant then turned to the various allegations of fact relied on by the respondent (exhibit R2). He said the statements attributed to him on p 3 were actually made by Fiona's then boyfriend, Const. Robert Langridge, who had been harassing her. The applicant had never wanted to marry her .Paras A and B were false, as the relationship between them was never sexual but purely in the nature of friendship. Fiona, however, had wanted marriage. He did advise her to "be safe" (para C), but that was because she discussed her sexual activities with him. He had given her a condom, but it was for use as a water bladder as part of a survival kit she was taking on an exercise. Condoms were sometimes issued for that purpose in the army. Paras D and E were false and the comment was made only in relation to her displaying a bare midriff. He had called her "a bikie's moll" because she was given to riding pillion on Const. Langridge's Harley-Davidson. 18Paras F and G were false. He had never said "If I can't have you, no-one will". It was Langridge who had said that to her. As regards para H, he had cleaned a number of weapons after a firing exercise at the range, and that had made his fingernails dirty. As she had taunted him about his nails, he placed the clippings in a bag, but not together with any lollies. 19In relation to para I, while in Seattle on the official trip mentioned above, he had telephoned the forensics unit for 10 minutes on 4 September 1994 Sydney time to confirm his permission to visit the Winchester factory, and later the Colt factory. Fiona had stated that he had called from a hotel room, but that was untrue as he had been staying with his brother Richard. Nor had he said the other things alleged. What had happened was that in the course of their conversation he had asked her to check the office fax machine. While he thought she was away doing that, he moved the telephone away from his face and said to his brother, "That bitch has caused me grief at work. I'll put a muzzle on my mouth and we'll go out for a beer". He had never said anything about $2000. 20The applicant tendered some September 1994 US West telephone records (exhibit A2) showing two calls he had made to his brother to assure him that he had arrived, as there had just been a major USAir crash. He was simply keeping in touch and was in no way suicidal. 21In relation to the particulars on p 4 of exhibit R2, he could not recall sending the card referred to (para (ii) (A), but had sent her postcards. He had never apologized to her and pointed out that the card had not been produced. He had no recollection of the apology in (ii)(B). The respondent had not mentioned that he had surrendered a number of prohibited items during an amnesty, having found them when he was preparing to sell a rifle and shotgun at a gun show. Para (ii)(C) was untrue. He had said he was proposing to ignore her. He had not received the direction in para (ii)(D). Exhibit A5 showed that S/Sgt Ransome had not made any note of the alleged conversation. 22The applicant then turned to the allegations on pp 4 and 5 of exhibit R2, para (ii). In the bullet recovery room at the range Sgt North had said that it was necessary for a third person to be in the room when the applicant was there with Fiona. The applicant had spoken only about some stolen ex-army F1 submachine guns that had been deactivated but re-machined so as to be operable again. That was his only concern. He had said that he treated Fiona like a sister only. There was no reference to a "green Mafia" and he had no desire to kill anyone connected with that alleged organization. He had simply asked what it was. He denied making any reference to the "Black and Tans". Further, the extract from the Victoria Police visitor log showed that he had been in Melbourne on 14 July 1994. 23The only white shape outside his window (p 5, para (vi)) had been the snow that had fallen while he was at Goulburn Police Academy. Para (vii) concerned his surrendering of certain items during an amnesty while he was preparing to sell some rifles and shotguns. The enjoyed target shooting but not killing and had never said anything about power in that connection. 24Dr Furst had prepared his most recent psychological report. He felt he should not have to pay for another examination, but was prepared to do so for the sake of his licence. It seemed that having a personality was regarded as a crime now. He had never been violent. 25In 1992 he had observed corruption at Cronulla police. He had a stubborn personality and as a result saw a psychiatrist, Dr R. Strum, who had stated that the applicant had been born in Sydney, which was untrue. 26Further in relation to the AVO, Sgt North had given him a handwritten note of Fiona's address in August 1994 (exhibit A7). He was having an affair with Fiona, had left his family and was hoping to move in with her. He gave the applicant her address in case he needed to contact him. 27He had seen Dr Roberts for the first report dated 25 August 2010, which was generated by the ambulance service on account of a case of PTSD that he had suffered because of two incidents in the course of his duties. One involved his helping an accident victim while he was off duty. He was not wearing gloves and had an open cut on his hand, which made him concerned that he might have contracted a serious infection. He was removed from all duties after the second report and took two weeks of stress leave. He had not harassed anyone but did have a tendency to get "hung up". 28He had not had any problems with Dr Gertler but was not cleared for return to normal duties after the second report. The ambulance service had redeployed him. He had seen Dr Heint in connection with stress and abuse in the ambulance service. Dr Heint was his doctor and had been helping him. 29Miss Cassie Garling's report (exhibit R1, tab 14) had also helped him, but he had not known that he was supposed to discuss the "green Mafia" allegation and she did not ask about it. After Miss Garling he had seen Dr Furst. 30He owned a match rifle and was planning to rejoin his club at Engadine, where he had been shooting until 1994 when he lost his licence. He had reapplied for membership in 2012 but had been rejected because of the prohibition order. He was currently taking eye drops for glaucoma, but believed he would lose his eyesight eventually, although his eyes were stable at present. The problem was diabetes related, but he was not yet taking insulin. He was willing to undergo another assessment, but said it would be based on false evidence. He said several times that "I'm anally retentive". 31In cross-examination it was put to him that as the Local Court and the District Court had made findings about his statements relating to the green mafia and the IRA, he should have raised those matters with Miss Garling. He replied that he had been advised not to take the courts' findings to task and could not fathom where the allegations were coming from. 32He agreed that he was obsessive by nature and was stubborn and difficult. Fiona's alleged fear of him was not reasonable or real, as evidenced by the fact that she agreed to shoot with him on the police pistol range. While he was there, a civilian woman was shooting on the range, in serious violation of regulations. After firing a round or two she became hysterical and pointed the gun at the applicant. The civilian was in fact Fiona's younger sister, and he later made a complaint about the incident. But he did not believe Fiona was fearful of him and accepted no responsibility in relation to the AVO. 33In relation to his absence in Melbourne on 14 July 1994, Mr Tran pointed out that Fiona had not claimed that he had been in Sydney on that date. He replied that she said he was harassing her in mid-July, and in addition he had been in Goulburn on 13 July. He denied Sgt North's account of his offering to drive Fiona home from the tech course (exhibit R1, tab 28; exhibit R2, p 3 para (i)(D)). The statement was wrong. He would not offer to drive her and had no intention or recollection of doing so. 34As regards exhibit R2, p 3, para (i)(E), he said that she had been harassing him and fondling his tie. He had not made the statements alleged, despite what Lisa Wood had said (exhibit R1, tab 27), and he had not driven her home or given her a Celtic cross on that date as he had no money at that time. Nor had he said anything about driving into a tree in National Park and did not know why she had verballed him. If he had intended to do so, why hadn't he? 35Sgt North's statement that he had accepted responsibility for all the troubles but could not help himself (exhibit R2, p 5, para (ii)(F)) was also incorrect. There had been a discussion, but it was not as North recollected. North had said Fiona wanted nothing to do with him but he recalled no reference to professional help. He had never threatened suicide -- he is Catholic and would never do such a thing. 36He could not have been directed by Sgt Ransome to stay away from ballistics, as he had been directed to go there to collect some items (shouting at this point), as exhibit A10 showed. His only reference to the green mafia had been to ask Sgt North what it was, some time in 1993, and he had said nothing about the IRA at that time. The allegations about a covert agency harming his dog were not accurate (exhibit R2, p 5, (iii)). Their claim about his wanting to kill a member of the green mafia who had sexually assaulted him as a child was false, as it was a nurse who had molested him (p 5, para (iv)). The alleged conversation about the Black and Tans was also untrue (p 5, para (v)). He had no idea what Fiona and North were talking about in para (vi), despite what Lisa Wood had said, as the only white shape outside his window had been snow at Goulburn. He thought the reference to "killing things" in para (vii) was to an occasion when he had had to shoot an injured dog. The police evidence was based on false information. 37On the secondl hearing date the applicant had tendered a number of medical and psychological reports, including a detailed evaluation by Dr Richard Furst, a consultant forensic psychiatrist, dated 14 September 2013 (part exhibit A8). The report detailed the applicant's background, the discord with Fiona and the ensuing litigation, and his subsequent work and personal history. It reviewed the previous psychiatric and psychological reports and the background materials supplied by the applicant. The conclusions reached were favourable to Mr Green's application. Mr Tran objected to the tender of that report on several grounds, including that it failed to deal with a number of specific points relevant to the application. The report was admitted subject to weight. 38In the interval between the second hearing date and the third, the applicant obtained a further report from Dr Furst, dated 19 March 2014 (exhibit A11). The document listed 29 sources of information about the applicant which he had reviewed, described further aspects of his personal history, and dealt seriatim with the specific questions raised by the respondent in its letter to him dated 16 April 2013 (exhibit R1, tab 13). Dr Furst stated that he remained of the opinion that Mr Green meets the criteria for the diagnosis of a personality disorder with obsessional and narcissistic features, an enduring pattern of maladaptive social relatedness, rigidity in thinking and perceptions and an inflated sense of his own abilities and self-worth. But there were no indications that he has any antisocial or borderline features, which traits are more commonly associated with impulsive or aggressive behaviour. He does not suffer from a mood disorder, anxiety disorder or psychotic disorder, as defined by DSM-V, and has no substance use disorder. 39There is no impairment in his fitness to possess and use firearms, and there is no indication that people with obsessional or narcissistic disorders, or both, would be so impaired. In Dr Furst's view, his condition does not have the potential to put the public (including his own) safety at risk. Having reviewed the additional evidence in that matter, Dr Furst remains of the view that Mr Green presents as a man of at least average intelligence who has lived a rather controlled and obsessional existence, but there were no indications of abnormal or violent fantasies. He has no history of violence and no criminal antecedents. He never breached the AVO taken out by Fiona. In that respect the applicant had now had nearly 20 years of opportunity to pursue or act in a violent matter towards her, but had not done so. 40He is not psychotic, is not depressed, has never self-harmed and has no identifiable risk of suicide at the present time or in the foreseeable future. His rigid personality would probably encourage him to be law-abiding. He does not drink alcohol or use illicit drugs. With respect to his risk assessment for future violence, any standardized testing instrument commonly used in forensic and legal settings would score him as a low risk of future violence. 41The applicant also called as a witness Mr William J Wilcher, barrister, who has known the applicant for about 23 years, having first become acquainted with him through their mutual service in the police force. In his written statement (exhibit A12), he stated that he became aware that he shared with the applicant an interest in recreational shooting. The applicant was also a very active member of the army reserve, serving in an infantry battalion, and through his recommendation Mr Wilcher also joined the reserves. He accompanied the applicant on recreational shooting trips to a property owned by his relatives in the Booligal area, west of Hay, on between three and five occasions. Through his involvement with the applicant in a policing context and in recreational settings, he states unreservedly that Mr Green demonstrates the utmost care in carrying and using firearms. Indeed, in his observation, Mr Green is absolutely pedantic about ensuring that any firearms under his control, and the control of others, are handled, transported and stored safely, and only used in circumstances posing absolutely no danger to any person. If the smallest amount of alcohol was consumed by anyone participating in a camping trip, all firearms and were stored and secured safely and not used again until eight hours after the last drink was consumed. He has an encyclopaedic knowledge of firearms and his ambition is to work in a institution such as the Australian National Museum, which has a firearms collection. The tertiary studies he is currently undertaking would, he hopes, qualify him for such a position. 42Mr Green also went on to serve as an ambulance officer, putting the interests of others above his own. Mr Wilcher is aware of the difficulties with Fiona. In his discussions with him about the matter, which was resolved last century, at no time did he ever witness any perceived or actual threat made by Mr Green towards the person involved. Nor did he ever witness any behaviour that would give rise to any apprehension of danger towards her or any other person, including himself. 43In Mr Wilcher's view, the applicant is a suitable person to hold a firearms licence. 44The respondent did not adduce any oral or affidavit evidence, but tendered the s 58 documents (exhibit R1) and a number of other documents, some of which have been referred to above. Respondent's submissions 45Before the second hearing date, the respondent tendered written submissions dated 11 November 2013 (exhibit R2) contending that the applicant was not a fit and proper person to be entrusted with firearms without danger to the public safety or the peace, within the meaning of s 11(3)(a) of the Act. He relied on the circumstances that led to the issuing of an AVO against the applicant on 19 December 1990, which was affirmed on appeal by Phelan DCJ of the District Court on 30 September 1995, including the applicant's obsessive and unwavering pursuit of Fiona between June and September 1994 despite repeated and unequivocal rejection, inter alia in the circumstances referred to above. His conduct indicated apparent awareness that his conduct was improper, including his statement to Sgt. North that "he knew he was to blame but could not help himself". He had said that he hated, and wanted to kill, a member of the "green Mafia" who sexually assaulted him during his childhood, and that when hunting " he imagined the animals he killed to be this man ". He had said that he "enjoyed shooting and killing things as a power thing and having control". Phelan J had found that he had "deep-seated problems" and that Fiona's "fears were very, very justified indeed ". The psychologist Cassie Garling assessed him as having long-standing traits that "can typically include impulsive behaviour". He noted that Dr Roberts had described personality disorders as "by definition, enduring and disorders of the type suffered by Mr Green typically respond poorly to treatment". Among the other reports was that of Dr Gertler, who thought that the applicant displayed " obsessionality of thought" and "over-inclusiveness" and that he seemed slightly "grandiose and entitled". 46The respondent acknowledged that significant time had elapsed since the events involving Fiona, but submitted that those matters should be given weight because of the more recent medical findings. 47The respondent also submitted that the issuing of a firearms licence would be contrary to the public interest within s 11(7) because there is a risk to public safety, pointing to the medical evidence, the circumstances leading to the issue of the AVO, the applicant's lack of insight the effect of his behaviour on Fiona, including his statement to her that "if you ever hurt me or my family I would kill you". Although the firearms prohibition order of 9 July 1996 never took effect, it suggested that it was not in the public interest for him to have a firearm. He was estopped from challenging Phelan DCJ's findings as they were made in a final judgment of a competent tribunal and the applicant was a party to the proceeding. 48The respondent also submitted that the original report of Dr Furst should be excluded under s 135 of the Evidence Act, or that it should be given very little weight because it expressed no opinion about specific matters related to public safety and assumed facts contrary to the Local Court's findings. 49The respondent supplemented his original submissions with further submissions dated 23 April 2014. He contended that the applicant's continued failure to accept the wrongfulness of the conduct leading to the AVO militated against his application. Dr Furst's opinion that his personality disorder would not put public safety at risk was an opinion about the ultimate issue which the tribunal should not accept. It was not wholly based on his specialist psychiatric knowledge and failed to take proper account of the persons placed at risk by his possession of firearms, particularly women, with whom the applicant becomes obsessed. It also failed to take account of the possibility that the applicant would act, not impulsively, but in a premeditated, deliberate fashion, consistently with his personality disorder. 50Mr Tran reiterated the above points in his oral submissions adding that the key question was whether the applicant is a fit and proper person in the sense that his possession of firearms licence presented virtually no risk to public safety. The tribunal could not be so satisfied because of his lack of remorse over his conduct that led to the AVO. His own evidence about those events was inadmissible because issue estoppel rendered the matter non-justiciable. Consideration 51The first ground on which the respondent relies for refusal of a firearms licence to the applicant is that he is not "a fit and proper person [who] can be trusted to have possession of firearms without danger to public safety or to the peace" within the meaning of s 11(3)(a) of the Act. "Fit and proper person" -- the evidence 52The basis for that claim is, first of all, the issuance of an AVO against him in 1994 and the facts and circumstances leading to that order. They included his allegedly obsessive pursuit of Fiona, his strange actions and statements and violent fantasies, together with the later psychological reports of Dr Roberts, Dr Gertler, Miss Garling and others as well as more recent evaluations. 53The respondent also relies on the findings of Phelan DCJ on 30 September 1995 in which his Honour affirmed the findings and orders of the Kogarah Local Court. 54There appear, however, to have been some less than entirely satisfactory aspects of the Local Court hearing. The applicant had arranged for his brother Richard to come from Seattle, Washington, at the applicant's expense, to give evidence in his case which, he claimed, would have contradicted Fiona's evidence. But by interposing another case in its list without apparent reason, and setting an adjourned date after Richard Green had to return to the United States, the court made it impossible for him to give his evidence. The applicant's former legal representative believed that this result was achieved knowingly and on purpose (applicant's submissions 21 October 2013). The respondent does not deny those events, but submits that as the Local Court's findings were affirmed in a final judgment of the District Court and the applicant was a party to the proceedings in which it was given, Phelan DCJ's findings cannot be challenged by reason of issue estoppel. 55The doctrine of issue estoppel does not, however, apply in criminal proceedings. While an AVO application is not a prosecution, it is a proceeding under the Crimes Act 1900 part XVA, and the appeal was heard in the criminal jurisdiction of the District Court. It thus qualifies as a criminal proceeding. In Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212, (1981) 61 FLR 354, 359, the Federal Court, while declaring that the tribunal (in that case the federal Administrative Appeals Tribunal) was bound to accept a conviction and the facts necessarily found by the jury in reaching its verdict, said: "We agree that the tribunal is bound to accept the fact of the conviction as the source of jurisdiction and as a stigma affecting the applicant's standing and credit in the community. However, we cannot accept that the tribunal is not entitled to examine for itself all facts including those necessarily found by the jury. To conclude otherwise would be to introduce into proceedings of the tribunal doctrine equivalent to that of issue estoppel". 56The court then went on to explain that issue estoppel does not apply in criminal proceedings but a tribunal could examine the circumstances of a conviction as relevant to the gravity of the offence and the risk of recidivism. The doctrine of issue estoppel, the court continued, has no place in a partly lay tribunal directed to follow informal procedures. In criminal proceedings, which are conducted without pleadings, it is impossible to identify an issue in such a way as to give rise to issue estoppel. To the extent that it is a rule of evidence, it is expressly excluded by the legislation (at [359]). 57Other cases have confirmed the rule that the tribunal may not question a conviction or the appropriateness of a sentence: "There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed": Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197, 91 FCR 234 at 244, [41]. 58In the above cases a criminal conviction was the basis of the tribunal's jurisdiction under the Migration Act, which is not the case here (see Ward at [13]). But the AVO is relevant in the present case as what the court in Daniele called "a stigma affecting the applicant's standing and credit in the community". The tribunal may thus accept evidence relating to the circumstances surrounding the offence in connection with its evaluation of discretionary factors: Daniele at 358, Ward at [13]. 59Mr Kable submitted that in the AVO proceedings there were 40 or 50 statements or actions alleged against the applicant, and it was not clear whether there was evidence to support all of them. Be that as it may, in the current proceedings the applicant has admitted some incidents (such as the fingernail clippings), has given a plausible explanation for some (the "muzzle in the mouth") and has denied others. In some instances he has tendered evidence tending to cast doubt on the correctness of some of the police evidence, such as in relation to the handwritten note of Fiona's address that Sgt North gave him (exhibit A7). His explanation for the fingernail episode was that he was being harassed at work. That reply is somewhat corroborated by Sgt North's Local Court evidence, in which he agreed that the applicant had been "a subject of jokes played on him by police officers at Cronulla" (exhibit R1, tab 13, p 63). While the witness denied that the applicant had been the target of pranks at the ballistics unit, he did admit that he had suggested to the applicant that he inspect a "sex shop" called The Tool Shed because Sgt North thought it would be good for him. The applicant duly visited that establishment, in company with Fiona. The applicant was also able to establish by documentary evidence that he was absent in Melbourne working with Victoria Police in mid-July 1994, at a time when Fiona said he was harassing her. 60It would be inappropriate to make findings about the veracity of witnesses who have not given evidence before this tribunal. Apart from that, and given that the tribunal is bound to accept the courts' orders, while there may be doubts about the reliability of some of the evidence given, I accept that there was ample evidence to justify the issuance of the AVO. Whether his brother's evidence, had he been accorded the opportunity to give it, would have made any difference can only be a matter for conjecture. 61The respondent also relies on the reasons given by Phelan DCJ for dismissing the applicant's appeal. His Honour adopted the findings of the Local Court, but those findings are not in evidence before this tribunal. It is notable, however, that although there was no psychological or psychiatric evidence before the court, or indeed in existence, at that time, Phelan DCJ's reasons contain comments on the applicant's psychological state that are more emphatic and ominous than those of any of the psychiatrists and psychologists who have subsequently evaluated the applicant (exhibit R1, tab 13, pp 1-2). Again, in the course of Fiona's cross-examination, his Honour remarked, "You know, on my reading of him, and I've done a bit of psychology, and for years when I was a priest I had a lot of counselling, his problems are very -- as I read them, as a layman -- very very very deep" (exhibit R1, tab 13, p 11). Notwithstanding the parenthetical disclaimer, it does appear that the court was partly basing its judgment on matters of expert opinion for which there was no evidence before it. In my view that somewhat diminishes the weight that can be given to his Honour's remarks. 62Those conclusions have a bearing on the respondent's next ground under s 11(3)(a), the applicant's apparent lack of remorse over his actions towards Fiona in 1994 and his maintained denial that certain events found by the courts to have occurred actually happened. That attitude becomes more comprehensible, however, given the doubts that attend some of the courts' findings. 63Further, in such cases, attaching substantial weight to lack of remorse can be somewhat problematical. Unfortunately, it is not unknown for a person to be inappropriately sentenced or wrongly convicted. In some instances people have pleaded guilty to offences they did not commit, sometimes as a result of pressure. In a Migration Act case in the federal Administrative Appeals Tribunal, I made this observation: "My own view has always been that a person who genuinely believes himself or herself to be innocent of, or less than fully blameworthy for, an offence should be permitted to say so without being unduly prejudiced for it. The real question is what the denial says about the offender's record, mitigating circumstances, any persistent tendency to self-identify as a victim and the general reasonableness or unreasonableness of the claim": Re Toro Martinez and Minister for Immigration and Citizenship [2008] AATA 511, [101]. 64As far as I know that proposition has never been rejected or criticized by any court or tribunal. In this case, the applicant has had no criminal convictions, either before or after 1994, has not had any other AVO issued against him, and never breached the conditions of the AVO obtained in favour of Fiona. He has never behaved in an aggressive or rancorous manner towards Fiona or any of the witnesses against him at the AVO hearing, although he has had 20 years in which to do so. 65In my view during the 1994 imbroglio the applicant did indeed behave in an obsessive, irrational and persistently annoying manner that caused Fiona to harbour an apprehension about the possibility of violence. He would not, however, have been the first young person to become obsessed and delusional about a member of the opposite sex. Such situations have long been a standard item of stock in trade for novelists, playwrights and screenwriters since Homer's Iliad. The important point is that he is now 45 and there have been no such incidents since 1994. 66Especially important in this context is the fact that while he has had unusually extensive experience with firearms for much of his life, in the police force, in a reserve infantry battalion and as a club member, recreational shooter and hunter, there is no record of any careless, dangerous or inappropriate handling or storage of weapons on his part. As Mr Wilcher's evidence shows, the reality as observed by those having close contact with him is quite the opposite, that he is meticulous in observing all safety standards. 67Next, the respondent relies on the psychological and psychiatric evidence, especially the more recent reports, as showing that he remains an unstable person liable to impulsive action or even premeditated malevolence. The reports do express an almost unanimous view that he has a borderline personality disorder giving rise to obsessional, compulsive and perfectionist action. The applicant himself goes quite a long way towards acknowledging the correctness of most of the reports, describing himself as stubborn, difficult, obsessive, "anally-retentive" and as someone who gets "hung up on things". Only one of the consultants, the psychologist Cassie Garling, considers that he might be susceptible to impulsive action. 68The most recent report, that of Dr Furst stated 19 March 2014 (exhibit A11), which is summarized above, concludes that the applicant still meets the criteria for the diagnosis of a personality disorder with obsessional and narcissistic features, an enduring pattern of maladaptive social relatedness, rigidity in thinking and perceptions and an inflated sense of his own abilities and self-worth. But he saw no indications of any antisocial or borderline features, traits more commonly associated with impulsive or aggressive behaviour. He does not suffer from a mood disorder, anxiety disorder or psychotic disorder and there is no impairment in his fitness to possess and use firearms. There were no indications of abnormal or violent fantasies, nor any history of violence, and no criminal antecedents. His rigid personality would probably encourage him to be law-abiding. Any standard test used in forensic and legal settings would score him as a low risk of future violence. 69The respondent submitted that Dr Furst's report should not be given weight because, first, it was not wholly based on his specialized knowledge, which is in the area of forensic psychiatry, not firearms possession. In my view it is unnecessary to have a specialty in the subject of firearms in order to know that they are potentially dangerous and must be handled and stored with great care, and that a person psychologically incapable of doing so is not fit and proper to possess them. 70The respondent contends, secondly, that the report fails to take proper account of the persons placed at risk by the applicant's possession of firearms and too readily accepted his denial of any interest in approaching Fiona in the future and his denial that he had ever attempted suicide or self-harm, as well as some other denials. Yet the applicant's assertions in that regard are corroborated by the fact that he has not approached Fiona for 20 years and nowhere in his record, including in the psychological evidence, is there any mention of self-harming attempts at suicide or self-harm. The other denials do not appear to have played a significant part in the report's assessment. 71The report also fails to take account, the respondent argued, of the risk to members of the public, especially women, with whom the applicant becomes obsessed. While he might not act impulsively with a firearm, the report did not canvass the possibility of premeditated and deliberate action consistent with his personality disorder. But there is no evidence of any obsessive pursuit of a woman for the past 20 years. Although Dr Furst's report does not explicitly exclude the possibility of premeditated wrongdoing, the whole tenor of his two reports is inconsistent with that possibility, notably the finding that Mr Green's controlled and rigid personality would encourage him to be law-abiding. The respondent did not dispute that the report responded to all the specific points of inquiry listed in his letter to Dr Furst dated 16 April 2013, including several questions dealing directly with public safety. I find that Dr Furst's reports, especially the more recent one, give an accurate assessment of the applicant's current mental state. "Fit and proper person" -- the legal test and its application 72Turning to the test to be applied, the respondent referred to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 in which the tribunal found that "in considering public safety under the Act, the tribunal must be satisfied that there is "virtually no risk" to public safety". That phrase was the only authority cited by the respondent in the case. 73When those words from Ward are quoted in isolation, as they sometimes are, they can convey the impression that an applicant confronts an almost impossible burden of proving a near-absolute negative. It should be noticed, however, that the tribunal in that case set aside the Commissioner's revocation of the applicant's license. In considering whether the applicant was a "fit and proper person" to hold a firearms licence, as he had been convicted of common assault against his de facto, causing minor injuries, and had at one point been the subject of an AVO obtained by her, Hennessy DP noted that he had never been convicted of any other offence of violence, had attended counselling and shown genuine remorse and determination not to reoffend and had experience in the possession and use of firearms and in teaching others to use them. His counsellor thought it unlikely he would be violent in the future. Her Honour was satisfied that the applicant was a fit and proper person. 74The concept of "fit and proper person" has been developed in subsequent cases. It should first be noted that these are not adversarial proceedings and an applicant bears no burden of proof: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182, [37].There is no presumption that the Commissioner's decision is correct: at [38]. 75The tribunal's consideration should be guided by the fact that "The most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences": Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7, [117]. The applicant's failure in that case to instal an approved trigger lock, together with a conviction for assault, meant that he was not fit and proper within the meaning of the Act. That concept takes its meaning, the tribunal said, from the context in which it is found: Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321, 380. In proceedings under the Act, fitness and propriety must be considered in the context of public safety, as is plain from the additional words "without danger to public safety or to the peace" in s 11(3)(a): at [126]. Mr Davos's licence revocation was affirmed. 76On the other hand, in Mewborn v Commissioner of Police, New South Wales Police Force [2009] NSWADT 24, the tribunal set aside a refusal to grant a licence to an applicant convicted of assault causing actual bodily harm, who had contravened an AVO and had a history of domestic disputes and arguments with neighbours. He had, however, removed himself from the stressful relationship and from his neighbours. None of the incidents had involved firearms and he had a responsible attitude to them. The tribunal considered him a fit and proper person. 77In the Brosowski case referred to above, the applicant had been involved in a semi-siege situation with an aggressive neighbour and had been arrested. He had no prior convictions or adverse gun history, but was found to have unsafe firearms storage constituting a risk to the public. The licence revocation was affirmed. 78Revocation of a licence was set aside in Webb v Commissioner of Police, New South Wales Police Force [2004] NSWADT 110, where the applicant had gone shooting with a friend who, unknown to the applicant, was unlicensed and using an unregistered 22 magnum. When interviewed by police the applicant gave false information; he was subsequently breathalyzed, failed the test and was abusive. In considering the question of "danger to public safety", Montgomery JM 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": [32]. The risk was to be assessed by reference to prior conduct. The tribunal found that he was a man of good character who had engaged in what was for him anomalous conduct, and otherwise had been incident-free. He had displayed remorse and had learned from the experience. 79It can thus be seen that the "fit and proper person" and "virtually no risk" tests are applied in a nuanced manner, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety. 80Applying the test as developed to the evidence in this case, the respondent's evidence for the proposition that the applicant is not a fit and proper person consists of the 1994 AVO, the circumstances leading to and surrounding it, the applicant's lack of remorse about those events and lack of insight into their effect on Fiona, several diagnoses of borderline personality disorder with obsessive and perfectionist features, and the unlikelihood that his condition would improve with treatment. 81As against that, the evidence in favour of the applicant consists of his absence of criminal convictions, the absence of any other AVO and the fact that he did not breach the AVO in connection with Fiona and has never approached her since, and the absence of any history of violence. His pursuit of Fiona took place over a four-month period in 1994 and there have been no similar instances in the intervening 20 years. He does not consume alcoholic beverages or use drugs. A recent and comprehensive psychiatric report evaluates him as being at a low risk for future violence and indeed his borderline personality disorder tends to make him inherently law-abiding. That assessment is confirmed by the character evidence given by Mr Wilcher. 82Crucially in the present context, he has an unblemished firearms history despite extensive involvement with weapons. His knowledge of firearms is encyclopaedic and the unchallenged evidence shows him as a man who takes a perfectionist approach to all aspects of gun safety. It is reasonable to conclude that he presents "virtually no risk" to public safety within the Ward standard and the subsequent authorities. 83I am therefore satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to the public safety or to the peace, within the meaning of s 11(3)(a). "Contrary to the public interest" 84The second arm of the respondent's case is that the tribunal should consider that the issue of a licence to the applicant would be contrary to the public interest within the meaning of s 11(7) of the Act. The appeal panel of this tribunal considered the meaning of "public interest" in Commissioner of Police v Toleafoa [1999] NSWADTAP 9, 25, which dealt with a security licence. The appeal panel declared that the public interest is "an inherently broad concept giving [the decision-maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual". The tribunal has held that those comments apply equally to firearms legislation: Ward, [33]. The tribunal has also held that the discretion should be exercised in such a way as to promote the objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. 85Illustrating how the discretion operates is Lynch v Commissioner of Police [2006] NSWADT 80, in which Montgomery JM considered the case of a primary producer who had received a discharge under s 10 of the Crimes (Sentencing Procedures) Act 1999 for having an unregistered firearm and failure to store firearms safely. Some of his guns had been registered and his record was otherwise incident-free. Affirming his licence cancellation on public interest grounds, the tribunal stated that the applicant appeared to lack an understanding of the reasoning behind the statutory storage requirements. He was unlikely to reoffend in the same manner, but could do so in other ways. The Webb case outlined above was also decided on the basis of public interest. Failure to comply with storage requirements led to licence refusal on public interest grounds in Vella v Commissioner of Police, New South Wales Police Service [2003] NSWADT 91. 86The public interest test does not necessarily require a conviction or a s 10 discharge. Martin v Commissioner of Police, New South Wales Police Force [2010] NSWADT 276 concerned a club member who had initiated an aggressive incident involving a disagreement over safety procedures at a firing range, which the applicant considered were not being enforced in the proper manner. During the altercation the applicant had threatened to use a gun on his antagonist, but was not in possession of a weapon at the time. Montgomery JM noted that the applicant had no history of firearms misuse, but did have a record of aggressive and inappropriate behaviour. He appeared to have great difficulty in controlling his anger. It was not possible to exclude the possibility of a risk to the public. His licence revocation was affirmed. 87 In Toleafoa the tribunal pointed out that as the possibility of refusing an application on the ground of character was dealt with elsewhere in the same section (as is the case here), it was "reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal": at [25]. 88For that reason the tribunal in Ward found that the Commissioner had not established his case based on the public interest: "In this case the respondent relied exclusively on the applicant's conviction as the basis for refusing the application. I have found that the applicant is a fit and proper person to hold a licence. No additional material was put in relation to the Commissioner's argument that granting the licence would not be in the public interest": at [33] per Hennessy DP. 89In this case also the respondent has not adduced any additional material relevant to public safety and the objects of the Act beyond that led in connection with the "fit and proper person" ground, with the possible exception of his argument that the applicant has displayed no insight into the effect of his conduct on Fiona. That argument, however, amounts essentially to a different way of expressing the arguments about lack of remorse and the circumstances surrounding the AVO, which the respondent relied on under s 11(3)(a) and which I have dealt with above . Consequently, I do not think that s 11(7) advances the respondent's case. Nevertheless, taking into account all the evidence on the assumption that it applies to s 11(7), I find that the applicant satisfies the "virtually no risk" test enunciated in Ward and later cases and that the issue of a licence to him would entail virtually no risk to public safety and would not be contrary to the public interest. I have already found that the applicant is a fit and proper person to hold a licence within the meaning of s 11(3)(a). 90The decision under review is therefore set aside. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2014