Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Caines v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 154 Hearing dates: 18 March 2015; 7 July 2015. Decision date: 22 July 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: G Walker, Senior Member Decision: Decision under review affirmed. Catchwords: FIREARMS - revocation of licence – public interest—brain injury – public safety. Legislation Cited: Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Firearms Act 1996; Firearms Regulation 2006. Cases Cited: Briginshaw v Briginshaw (1938) CLR 336; Commissioner of Police v Toleafoa [1999] NSWADTAP 9; Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50; Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59; Martin v Commissioner of Police, New South Wales Police Force [2010] NSWADT 276; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10; Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. Category: Principal judgment Parties: Gary R Caines (Applicant) Commissioner of Police, New South Wales Police Force (Respondent) Representation: Solicitors: G Caines (Applicant in person) Lindsay Taylor Lawyers (Respondent) File Number(s): 1410433 Reasons for decision 1. The applicant Mr Gary Robert Caines applied to this tribunal on 12 August 2013 for a review of a decision of a delegate of the respondent dated 30 April 2014 affirming the decision by the respondent dated 6 November 2013 to revoke the applicant's category AB firearms licence. 2. The applicant had been issued with a shooter's licence on 16 February 1991, which was cancelled on 8 April 1999 when his new category AB firearms licence was issued. That licence expired on 20 May 2004, and the applicant's firearms were seized as he had not surrendered them, but an application for a new licence was lodged on 13 August 2007, which led to the issuance of a new AB licence on 7 November 2007. 3. That licence was suspended on 3 April 2013 following an incident on 18 March 2013 when the applicant attended at Wollongong police station at about 1:30 am and repeatedly demanded to speak to the commander, Mr Stewart. The desk officer declined to contact the commander, pointing out that it was 1:30 in the morning, but offered to take the applicant's telephone number so that Mr Stewart could call him back. In the course of the conversation, which lasted about 25 minutes, police said the applicant became increasingly noisy and kept repeating the same demand, apparently not registering the desk officer's replies. 4. The constable formed the view that the applicant was delusional, was having a nervous breakdown or was suffering from some other psychiatric condition. After the applicant had left, he performed a search on the COPS database which revealed that the applicant was the licensed owner of eight registered firearms. Believing that the applicant was in no condition to have possession of firearms, the desk officer wrote a report on the incident (exhibit R1, tab 5). 5. As a result of that incident, a decision was made on 3 April 2013 to suspend the applicant's license and he was asked to provide a psychiatric or psychological assessment to determine his fitness to remain authorized to possess and use firearms. Police served the suspension notice on the following day and seized all firearms (exhibit R1, tab 6). Following the receipt of a psychologist's report dated 18 October 2013 (exhibit R1, tab 6c) and further discussions with Wollongong police concerning the content of the conversation on 18 March, a delegate of the Commissioner by notice dated 6 November 2013 revoked the applicant's AB firearms licence (exhibit R1, tab 7a). An internal review affirmed in the delegate's decision on 30 April 2014 (exhibit R1, tab 7d). Applicable legislation 1. The respondent relies on the ground that it is not in the public interest for the applicant to continue to hold a licence, within the meaning of s 24(2) of the Firearms Act 1996 and clause 19 of the Firearms Regulation 2006. Section 24 reads as follows 24 Revocation of licence (cf APMC 6, 1989 Act s 36, 1990 Reg cl 27) (1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order. (1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if: (a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or (b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997—the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act. (2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations. (2A) If the Commissioner revokes a licence because the licence holder would be refused a licence on the grounds referred to in section 11 (5A), the Commissioner is not, under this or any other Act or law, required to give any reasons for revoking the licence on those grounds. (3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it. (4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice. (5) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect. 1. Clause 19 of the Firearms Regulation provides that the Commissioner "may" revoke a licence if the Commissioner is satisfied that it is not in the public interest for the person to continue to hold the licence. 2. Pursuant to s 63 of the Administrative Decisions Review Act 1997, the tribunal is to decide what the correct and preferable decision is, having regard to the material then before it. For that purpose it may exercise all the functions conferred or imposed by any relevant an enactment on the administrator who made the decision. The issue in this case is thus whether the Commissioner's revocation of the applicant's firearms licence is the correct and preferable decision, and specifically whether it is not in the public interest for the applicant to continue to hold a licence. Respondent's evidence 1. The respondent tendered the s 58 documents (exhibit R1) and also a file of documents relating to the case (exhibit R2). 2. The respondent called Leading Senior Constable Raymond Holmes, who adopted his statement dated 18 February 2015, in which he said that on Monday, 18 March 2013 he was rostered to work within the station area of Wollongong police station. He clearly remembered that at about 1:30 am Mr Gary Caines attended the station and asked to speak with the commander, Mr Stewart. During the conversation he was loud and appeared very tired. He had bloodshot eyes. He did not appear intoxicated. The constable had never previously spoken to Mr Caines or taken any action in relation to him. 3. He said to Mr Caines words to the effect of, "Hello sir, how can I help you?" Mr Caines replied with words to the effect that, "I'm here to speak with the commander, Mr Stewart." S/Const Holmes replied, "I'm sorry, but Mr Stewart does not work night shift, but I am willing to take your name and phone number and I can pass on a message or you can speak with a supervisor if you do not wish to tell me what it is about". Mr Caines then said, "Why isn't Mr Stewart here?" 4. He then replied in words to the effect that, "Sir, it is 1:30 am and Mr Stewart works during the day shift. Is there anything I can help you with?" Mr Caines replied, "Well I suggest to you that you call him promptly as I want to talk to him". The constable then said, "Sir, I know what would happen to me if I was to call him at 1:30 AM in the morning and tell him there is someone at the counter wishing to speak with him". Mr Caines then said, "Well I want to speak with him now!" The officer then said, "Sir, we are going round in circles. Is there any reason why you are in here at this time of the morning? As you can hear, my phone's ringing and I have already informed you that I am willing to take your name and number and I will pass the message on". 5. S/Const Holmes then obtained Mr Caines's details from him, but he still insisted that the constable call the commander. He said, "Call him now." The constable replied, "Sir, there is no way I'm going to call him and you have not even explained to me why you are here, other than wanting to talk with Mr Stewart". At that point Mr Caines began to speak more loudly, which attracted the attention of another officer, Constable Kevin Humphries, who at the time was in the police station muster room. He approached S/Const Holmes and asked to speak with him. S/Const Holmes told Mr Caines he would be back in a minute. In his conversation with Const Humphries, the latter said, "That guy was in last night that I really don't know what he was saying to me. I think he may suffer from mental illness. He came in to complain about the boss". 6. On returning to the front counter he informed Mr Caines that he would pass on a message and that he had to attend to other duties. That appeared to make Mr Caines angrier. He loudly said words to the effect of, "I don't want to speak with him, I find him very rude and I want to complain about him, I already had a meeting with him and he walked out on me". S/Const Holmes said, "Sir, you can put your complaint in writing, or if you are unhappy with my advice, I will have a supervisor call you". 7. He again tried to reason with Mr Caines, who in the end walked out of the police station uttering words that the witness could not hear properly. He appeared to be like a person who was having a mental breakdown. The very fact that he came to the police station in the early hours of the morning on two occasions demonstrated, in LS/Const Holmes's view, that he was not thinking rationally. In the course of the conversation he either ignored the constable or did not understand what was being said to him. 8. LS/Const Holmes then conducted a COPS database search on Mr Caines as he had concerns for his safety and the safety of Mr Stewart. The search revealed that Mr Caines was the holder of a firearms licence and possessed a number of firearms. He was concerned that a person who appeared to have a mental illness or disorder should not be allowed to have access to a firearm unless it could be established that there was virtually no risk in his doing so. 9. Soon after Mr Caines left the police station, LS/Const Holmes spoke to his supervisor, Sgt Keirse (there was some doubt about the spelling of the sergeant's name) and said that he thought a police crew should be sent out to take possession of Mr Caines's guns, as he had the safety concerns mentioned above. The sergeant told him that there was no power to take the firearms that night, but indicated that the appropriate course would be to make a report, which the witness immediately proceeded to do (exhibit R1, tab 5). 10. On 3 April 2013, a licence suspension notice (exhibit R1, tab 6) was received, and LS/Const Holmes, in company with other officers including the mobile supervisor, called on the applicant to collect the firearms. He had not spoken to Mr Caines since. 11. The applicant cross-examined the witness at some length. Much of the cross-examination consisted of comment and accusations of lying, and Mr Caines had to be asked repeatedly to confine himself to putting questions about matters of fact. 12. In cross-examination the witness said that at the relevant time he had been on station duty alone in the main station area, where he was visible from the door and the counter. Renovations carried out since then would have made him not visible from the door. His shift had begun at 6:30 pm on the 17th and ended at 6:30 am on the 18th. He said emphatically that he was awake at the time and had his wits about him. He had never slept on duty and indeed there was no time to do so as he was continually busy. He agreed that one of the closed-circuit cameras would have shown Mr Caines entering and speaking with the witness, but said that at the time there would be no audio recording. He agreed that body language and what Mr Caines called "posturing" would have been visible on the recording but said it would not be easy to analyse. A new cassette was inserted in the machine for each shift and if there were no complaints all tapes were re-used when the recorded cassettes totalled about 50. He did not know why the tapes had not been sought in connection with this incident, but in any case the truth lay in the conversation, not in body language. 13. The conversation with Mr Caines had begun at a normal volume level but his demeanour had become progressively noisier, especially in the final five minutes of the 25-minute conversation, and attracted the attention of another constable who came out to see what was happening. Mr Caines had bloodshot eyes and appeared very tired at the time, but when leaving the station walked out in a normal manner, and did not appear to be intoxicated. The other constable said he wanted to speak to the witness towards the end, and LS/Const Holmes left the counter to do so, because he assumed that Mr Caines was not getting the response he wanted, which was for him to call Mr Stewart. 14. It was put to the witness that Mr Caines left briefly so that the witness could talk to Const. Humphries, and that he might have been wrong about Mr Caines's reasons for coming to the station. The witness said he was not wrong at all and that Mr Caines became irate. He had been asked to give his name and to say what the complaint was about. Then towards the end of the conversation his demeanour changed and he said he did not wish to speak to Mr Stewart but wanted to make a complaint about him. The witness said he had not lied about the conversation as was suggested, and repeated that Mr Caines had not given a reason for wishing to speak to Mr Stewart. He agreed that he had sometimes felt tired while on night shift and also that he was often questioned when giving evidence about whether his memory had been affected by tiredness. But he had never heard of any issue relating to fatigue in his case. 15. The witness was then asked what it was about Mr Caines that triggered his making of a fitness report. The witness replied that Mr Caines appeared to be delusional and kept asking the same questions repeatedly, and also appeared unable to understand the answers he was given. Asked whether Mr Caines might have said that Mr Stewart might be able to contribute to the exchange if he had been summoned, the witness replied that his presence might have solved the problem if he had come, but that was all assumptions. 16. The witness was then asked whether he dealt with aboriginal matters, and whether he knew who the local liaison officer currently was. He replied that he did handle such matters but did not know who the present liaison officer was. He recalled that one of the earlier incumbents had been Malcolm Elliott. 17. Asked whether he would have responded in the same manner if asked by another person, he replied that he would give the same response, but it would depend on whether he could call a supervisor at the time. In daytime it would have been easier, as a matter of availability. The fact that the database showed that Mr Caines owned firearms was not what triggered his report. The reason had been his demeanour, delusional appearance, tone of voice, refusal to take "no" for an answer and the content of the conversation, which in combination triggered alarm bells. His replies to Mr Caines simply did not appear to "sink in". He had thought Mr Caines was having a mental breakdown and was worried about the safety of Mr Caines and others. He had thought there was probably no power to seize the guns that night, but asked the sergeant about it just in order to make sure. 18. The witness said he had a good knowledge of the Illawarra area from a policing point of view and had fairly regular contact with aboriginal issues in the course of investigations. He rejected the suggestion that Const Humphries had not been involved on the previous night, and said that Const Humphries had explained that he did not know why Mr Caines had been there except to complain about Mr Stewart. 19. When the firearms were seized, three officers in two cars had gone to Mr Caines's address. A woman who he took to be Mrs Caines answered the door and said that the applicant was out. The officers then either returned after a short absence, or Mr Caines himself returned while they were talking, he could not remember which. He had served the appropriate papers on Mr Caines in his front yard. It was his writing on the notice of suspension (exhibit R1, tab 6). The event number E5192151764 shown on that document was simply the seizure of the firearms. The applicant then concluded his cross-examination. 20. In re-examination the witness said that he had prepared the report (exhibit R1, tab 5) and that it was in the approved form. He had then sent it to the team leader and then to the Wollongong local area commander. If the matter was urgent he would personally walk it through the various stages but in this case he gave it to his supervisor and did not know what had happened to it after that. 21. The applicant then said he wished to cross-examine further and asked whether LS/Const Holmes was aware that there was a communication breakdown between the aboriginal community and the police in the Wollongong area. He replied that he was unaware of any such breakdown and had always thought they got along. He had dealt with the man nicknamed "Dootch" at the tent embassy, but had not been asked about that on the occasion in question. The applicant put it to the witness that he had gone to the police station to open up communications with the commander. The witness rejected that proposition and said that Mr Caines had simply said he wanted to speak to the commander. 22. The hearing was then adjourned part heard to 14 May 2015 in order to permit a psychologist, Mr Wenzel, to give evidence by telephone. When Mr Wenzel's office was contacted when the hearing resumed on 14 May, the person who answered the telephone said that Mr Wenzel was not available that day as he was in Sydney and not contactable. Mr Zoppo said that he had checked Mr Wenzel's availability for the resumed hearing date on 18 March and had expected that he would give evidence as arranged. He also noted that the applicant had not complied with the tribunal's directions given on the previous occasion, and in particular had not lodged any witness statements or other evidence. 23. The applicant said that he "didn't get around to" preparing the material as directed and did not know what was going on. He was not sure if he was being heard, let alone understood. He felt unwell and overwhelmed. The forum was being led by Mr Zoppo and the tribunal seemed amenable to his demands. He had done a lot of writing but had received nothing but rebuttal and mockery from the firearms registry. Asked if he was prepared to go into evidence, though it was not essential that he do so, Mr Caines indicated some reluctance but said he thought he might have to as he believed that if he did not call himself as a witness he would not be called. He felt daunted by the thought that his case would have less weight if he did not give evidence and he would prefer that Mr Wenzel were cross-examined before he gave evidence himself. He nevertheless agreed to enter the witness box. Applicant's evidence 1. The applicant adopted his memorandum of 29 January 2015 and his general outline of the events and submissions bearing the same date (exhibit A1). In that document he explained that "by virtue of my classical status as a descent Illawarra aborigine", he was "The Tenant-in-Chief, All Illawarra Lands" (the landlord in that relationship being, he said, "your Crown") and was a fit and proper person for the purposes of licence holding under the laws and regulations of New South Wales. 2. He had attended Wollongong Local Area Command (WLAC) station and the Southern RAC offices on no fewer than six separate occasions, each attendance occurring since his first contact with Commander Kyle Stewart at the University of Wollongong during mid-2012. 3. Commander Stewart had by prior arrangement recorded an interview with the applicant and a friend on 19 November 2012 in an interview room at WLAC. That interview ended in a cordial manner. The applicant's attendance or attendances at the Wollongong police station on or about 18 March 2013 at 1:30 a.m. were orderly and reasonable. It seemed, however, that those visitations had not been respected, recognized or reciprocated. The relevant audio-visual files would confirm his espousal of orderliness and reasonableness. 4. Other attendances at WLAC included a dialogue with the Wollongong and Lake Illawarra LACs' Aboriginal Community Liaison Officer (ACLO), Mr Layne Brown, who had confirmed the appropriateness of warrants for complaints against Mr Roy Noel "Dootcha" Kennedy for matters related to the charges he currently faces, which were the subject matter of the discussions being entertained, and also initially with Commander Kyle Stewart in the second instance. 5. R.N. Kennedy, he said, is "an incredible individual" who might pass an indigeneity test, but for several years had perverted the course of truth and justice in Wollongong and the Illawarra, and once more he was on the cusp of another such deed in appearances before the New South Wales District Court on a raft of charges that included alleged attempted murder and sexual offences with juveniles. 6. The s 58 documents dated 18 September 2014 contained false statements of fact in annexure 5, as compiled by the officers contributing to it. The report of Mr Gerry Wenzel dated 18 October 2013 was consistent, fair and equitable in considering the applicant's record in licence holding, compliance and the best interests of the public at large, which might be inconsistent with the unreasonableness as evidenced in the summation by M Daley, A/Team Leader dated 4th November 2013. The inclusion of "sufficient reason" and reference to a specific law note were expressly recommended by the WLAC duty officer, A/Insp D. Richardson, on 20 March 2013 and both items "failed substantially to exist unto this present time". 7. He had not been supplied with a receipt when his firearms had been seized, thereby being denied information about his rights and the remedies available. He had undergone two MMPI (personality inventory) tests that both showed "results dominant with traits of anger and belligerence" and the most recent profile exhibited clearly reduced levels in all the dominant traits. His medication regime was formulated for that outcome and he had been regimental and regular with medicines for more than 20 years. 8. Several friends, acquaintances and family members had affirmed their disbelief in the situation described by Sgt [sic] Ray Holmes against him, and most of them would be willing so to testify in relation to his attitude, fitness and good character. Michelle Daley, on behalf of the adjudication section of the firearms registry and its commissioner, would have done better with an overall "wide view" of the incidents surrounding his perspectives and reasons followed in the context to which he had conducted himself and his actions. 9. In oral evidence in chief the applicant said that his first contact with Commander Stewart had led to the later contacts. The record of the interview taken at the Wollongong station would have helped the proceedings. The applicant was disappointed about what had been reported and regretted making the effort to follow through with his concerns about Wollongong. 10. Roy Kennedy was the reason for his attendances at the WLAC. He was arrested and released on bail, but the bail conditions were not complied with. The current proceedings against him "should bring about his demise". 11. In the cross-examination of LS/.Const Holmes he had heard little to constitute a sufficient reason for making the report. Mr Holmes had said it was the applicant's demeanour and tone of voice, and had indicated that a person would not go to the police station at that hour unless he or she was a victim or had done something wrong. The applicant had gone there at that hour, however, because he did not want to interfere with the station's normal operations. He had not done the things that LS/Const Holmes had said. The omission of the reasons for his actions in making the report constituted a travesty of justice and the whole episode had to date been a farce. 12. The applicant said he might still accept an apology and restitution, as he was not a candidate for licence revocation and had not conducted himself in the manner alluded to. He did not spend thirty minutes asking to see the commander, nor did he go there for that reason. He had endured several months of being affronted and had sought to complain but had still had no response to his complaint. He had been concerned about the stand-off between police and the aboriginal population in the area, and was himself a victim of it. He believed Kennedy was a police informant. The police had lied because they wanted to get rid of privately owned firearms. 13. In cross-examination the applicant agreed that he had said he was taking Zoloft for his head injury, a medication intended for symptoms other than depression. When it was pointed out to him that in his later licence application (tab 4b) he had not stated that he was being treated for mental or nervous disorder, he replied that he was surprised by the omission and would have detailed it. He would like to have the opportunity of updating his records and hoped it would not happen again. He wished they had raised that point earlier, as it was an innocent oversight. 14. He was then asked why he did not explain the nature of his disorder in his 2007 application (tab 4a), and replied that one could see what he had written. He did not know what other detail he should have supplied or what more he could have said. He had a purely physical closed head injury. He acknowledged, however, that when he applied for a licence in 2012, he was being treated by several doctors for a mental illness, and that the psychologist Jennifer Batchelor's report dated 16 August 1995 (exhibit R2, p 93) said he had a short temper and was subject to conflict with others, and had a poor prognosis. That was seven years after he had sustained the injury, however. She had, however, said he was unfit for work. 15. In his 1994 report, Mr Wenzel had referred to his sleep problems. He agreed that he still suffered from those problems and was being treated for sleep apnoea. He still suffered from anxieties but was not sure about whether he was still subject to depression, and had been tested for it. The report had said he was unable to cope with stress, but he was subject to less stress now and had moved on. He had greater capacity to deal with life. Not all the physical symptoms noted were still present; obesity and lack of fitness were still there but the other symptoms were not overwhelming. He did suffer from thoracic pain and at one stage had carpal tunnel syndrome. The tendency to be suspicious of others was no longer there as he had not been in that workplace for some time and indeed had not been employed since 1995. Any suspicions he now entertained were caused by LS/Const Holmes. He did not know why he was being persecuted. Holmes was a good constable but he had reported a distorted version of the facts in his report. He could not believe why Holmes was sustaining that lie and wondered whether it was habitual for him, or whether the whole WLAC was like that. Commander Stewart should have an input into the situation. 16. He did not think he was still subject to mood disorders except in situations like the present one. Any shift in moods was caused by dealing with Holmes, and at the time of the seizure. He was not suicidal and would never do such a thing. When it was pointed out to him that the report showed that he had told Mr Wenzel he had ongoing suicidal thoughts, he replied that it was in December 2008 and he did not recall what he had said. He was surprised by what Mr Wenzel had found and did not know what he had interpreted as being suicidal. He was then asked if he had entertained suicidal thoughts since 2008, and answered "No", followed by a long pause. He did not recall it in 2008, or earlier either. 17. Mr Zoppo then referred to the letter from Professor G Davies to the applicant's general practitioner and asked if the applicant was still taking pericyazine (see exhibit R3) and Lovan for mental conditions. He said they were for his mental well-being and the Lovan he took every day was a low dose. Asked if they were designed to control his moods, he replied that they were in substitution for Zoloft. He was then asked about Dr Watson's statement that as a general rule depressives should not have guns and that if the applicant did, the firing mechanism should be disabled. He replied that Dr Watson was "a bit naive" about guns in society. 18. Turning to the incident of 18 March 2013, Mr Zoppo asked if he had attended at the Wollongong police station in the early hours of the previous morning. He replied that he did not recall. It was not because he could not sleep, but because he felt determined and clear-headed. While he had spoken to the commander some months before, he had not done so since, though he might have sent a message or two to his mobile, but received no response. He had gone to the station at 1:30 a.m. on the 18th to find out if action had been taken against Kennedy. The latter had been charged and released on bail, but that was in February-March 2014. Kennedy had been an activist and an embarrassment, especially to the applicant, as "it's my country". 19. He denied having asked to see the commander, but said he might have mentioned having spoken with him. He could not attest as to whether LS/Const Holmes had said the commander did not work the night shift, but did not think that he had spoken for twenty-five or thirty minutes as alleged. He had been waiting for about half of that time. Holmes had appeared, looking sleepy, and "we had words", but it was mainly about Kennedy. He might have raised his voice to a small degree in order to make a point. He could not say verbatim what he had asked the senior constable, but it related to current action against Kennedy. He had received a negative response. He did not recall his own reply but thought he might have asked why no action had been taken and might have given information about himself and Kennedy. LS/Const Holmes then had to deal with some telephone calls, while at the same time some police outside the door had been trying to attract his attention. He had therefore walked outside and told the police there that the desk officer was busy. 20. He indicated that he had done nothing to attract the attention of LS/Const Holmes, who had made up a report that was a lie. He suspected that Holmes was "a vigilante cop who is upset about guns in society". Asked why he suspected that, he replied that it was his deduction and that Holmes had an agenda. The applicant had disturbed him and he wanted to get back at him. When he saw that the applicant had guns, he took it as an opportunity to do so. He was not being delusional and the station video or audio recordings would show that. 21. He had been asked by the Firearms Registry to obtain a psychiatric or psychological report to support his application for a return of his licence. He had initially seen Dr Davies, but then found it impossible to reach him, so he went to see Mr Wenzel instead. He had mentioned that he had been assaulted by Kennedy and Davis and that Kennedy was also slandering him. As regards Mr Wenzel's reference to his third visit to the station to report the assault because he was unable to sleep, he said he did not believe he had said that. When it was put to him that the report did not square with his evidence that he had gone there to enquire about progress on Kennedy's other charges, he replied after a long silence "Can I re-read that?" and said he did not see the differences. 22. He did not know how many times he had visited the police station, but there were several visits and at least once he went to report Kennedy and Davis. But on the 18th he had not requested that the commander be contacted as a sole issue. He might have said he had spoken to him before, but definitely did not ask the constable to make contact with him. He takes his medications religiously and there have been very few times when he has forgotten to do so. Asked what happens when he does not take them, he replied that the lack of his heart medications can be felt, but he noticed no difference otherwise. 23. Mr Zoppo then asked the applicant about the incident in 2004 when his licence had expired but he had kept his guns without a licence until 2007, when they were seized. It was only after that that he had reapplied for a licence. The applicant replied that it was an oversight by the Firearms Registry and himself, and he did not necessarily keep track of dates. Then he was asked why there had been an oversight by the Registry, and replied "Did I say that? I shouldn't be solely blamed for that". He did not have an automated alarm system, but the Firearms Registry must have one and could have reminded him. It was their oversight. 24. By way of re-examination, the applicant said the respondent's facts were wrong and inconsistent. Three years ago he had gone out to the university and had interacted with Commander Stewart, expressing concerns about aboriginal persons and wanting to see matters through in order to deliver a better outcome. It was a slow process. He had sent messages to Commander Stewart, and had gone to his other office, but had not spoken with him since the interview at WLAC. He is chief of the area and would argue for what is worth doing, despite any threats he received or any suicidal or paranoid ideations he might have had. He strives for longevity. He would not consider waking the commander and had spoken to LS/Const Holmes about Kennedy, not about the commander. The allegations were an affront to him. 25. He had been suffering before 18th March as he had told Mr Wenzel, but not on that night. He had gone to the station at that hour simply because it was convenient, and only for the reason that he wished to ask about Kennedy. The medical reports were adequate to affirm his fitness, although it had been unfair of the respondent to trigger the fitness test. He is descended from aborigines and is responsible culturally and socially for a large area, which is hard to define. 26. The matter was adjourned part heard to 7 July 2015. Mr Zoppo was to contact Mr Wenzel about giving evidence by telephone. Liberty to apply was reserved. 27. On the adjourned date Mr Gerhard (Gerry) Wenzel, clinical psychologist, gave evidence by telephone. He implicitly adopted his report of 18th October 2013 addressed to Ms Leesa Livermore, a delegate of the respondent. In it he said the applicant had first seen him about fifteen years previously following the serious work injury in which he suffered a neurotrauma, as a result of which he developed depression and other problems requiring ongoing treatment. He had returned to Mr Wenzel's care on 10 December 2008 and treatment was provided regularly until February 2012. The applicant contacted him for further treatment on 26 September 2013. He had explained that the contact relating to his presenting at the police station in November 2012 related to problems he was having with another aboriginal man who had assaulted him. 28. Because of persistent pain and inability to sleep, he became depressed again, and during a prolonged period of suffering from insomnia he returned to Wollongong police station to make a report to the commander. He said the only reason he wanted to speak to the commander was that he had previously met him at a community forum at which he had experienced positive interaction with him. He went to the police station twice to report the assault against him by the other aboriginal man but had not been able to speak to the commander. His third visit to report the assault was at 2:00 a.m., as he had been unable to sleep because of pain. He came to the attention of the police officer who then sought to have his firearms licence suspended, as he judged him to be a possible risk in relation to firearm use. 29. At the time of the current report, Mr Caines's mood state had improved substantially and he continued to take antidepressant medication under the supervision of his general practitioner, Dr Watson. Mr Wenzel considered that the last time he saw the applicant on 17 October 2013 there was no psychological contra-indication or impairment that would affect his fitness to own and use firearms. He is continuing his medication and from time to time sees Dr Gordon Davies for psychiatric treatment to ensure his medication is at an optimum. As far as Mr Wenzel was aware, in the history of the applicant's condition there had never been an impairment affecting his ability to exercise the desired control and responsibility over firearms. There had been no change in that respect. 30. While Mr Caines's condition had essentially been stable throughout most of 2013, there was always the possibility of a relapse, but in Mr Wenzel's opinion he currently had the ability to form a rational judgment and to exercise willpower to control physical acts in accordance with a rational judgment. He repeated that it was always possible that a patient could relapse, but when that had occurred in the past Mr Caines had always sought appropriate professional help. He did not have the potential to put public safety at risk if he were in possession of firearms. The report explained that every patient with an emotional background history has the potential for a relapse, but at this stage Mr Caines was not exhibiting any such concerns from a clinical point of view. 31. In oral evidence Mr Wenzel said he had been consulting with the applicant since the late 1980s but there had been a long break, treatment resuming on 10 December 2008. He did not think Mr Caines would intentionally harm any person. He knew of Roy Kennedy through the media and was aware that Mr Caines had a grievance against him. He had approached police over that problem, but Mr Wenzel agreed that his approach would have been non-confrontational. 32. As regards the possibility of a relapse, Mr Wenzel pointed out that the applicant since 2008 had continued his treatment and medical monitoring, and was also under the supervision of a psychiatrist. He had tried to prevent relapse and his moods were no worse than those of anyone else who had suffered from depression. There had been no personality change over the years. The self-harm risk referred to in the 12 December 2008 report was a matter of ideation and he would expect that the applicant would be able to take control of himself in that situation. He agreed with the applicant that he had not had any mental diagnosis or admission in recent years, as far as Mr Wenzel knew. 33. In cross-examination Mr Wenzel explained that he no longer held copies of his old reports because they were destroyed after seven years if he had not seen the patient. Asked about his statement in his 24 October 1997 report (exhibit R2, p 72) in which he had said Mr Caines was continuing to see him for "ongoing psychological treatment in view of his persistent major depressive disorder which is related to his organic personality disorder secondary to his head injury", he said the diagnosis was based on DSM-III and related to a situation that had existed for probably over two years at that time. Ms Jennifer Batchelor's report of 16 August 1995 stating that his prognosis was poor and his cognitive problems would be "expected to reflect permanent dysfunction" (exhibit R2, P 98) was based on neuro-psychological testing. As he still needed help, his condition was poor and he was on a disability support pension. It was not unusual for persons sustaining a head injury to have a "short temper", as she had noticed. He had mellowed, however, and had done work on anger management that had enabled him to inhibit his impulses. His behaviour had improved since 1995. 34. Mr Wenzel acknowledged that he had noted suicidal ideation on 12 December 2008 on Mr Caines's first visit to him after an extended break. He had also noted some paranoid ideation in his report to Dr Watson on 17 December 2012 (exhibit R2, p 250), but not overly so, and also continuing depression and anxiety on 4 February 2012 (exhibit R2, p251). 35. He considered that the applicant's depression was likely to continue, with medication and life factors triggering a reaction. But he had not noticed any signs of violence. When asked about the incident at the police station, he explained that he had not seen the applicant from February 2012 until September 2013 and was therefore not seeing him at the time of the incident. He had, however, displayed a lack of judgment at that time and it was not clear what had prompted it. His conduct had been at odds with normal behaviour. It was also at odds with Mr Wenzel's opinion that he could make rational judgements and act on them, but there were no weapons involved. He could not comment about that time, or the future, as no one could say for certain what would happen. His depression is being treated and is currently stable, but he could not rule out repetition. 36. There could therefore be some risk associated with firearms. It was not possible to say that there was "virtually no risk". Applicant's submissions 1. Mr Caines submitted that New South Wales jurisdiction was bereft of guidance in relation to the Firearms Act. Attorney-General Shaw had said the law would be updated with federal guidelines relating to mental disability, as other jurisdictions have done, and the tribunal should research the subject. Several US states had also counselled caution in relation to persons who are committed. Several have referred to a five-year period as appropriate for determining whether it should influence firearms possession. He had not himself been adjudicated or admitted, especially in the last five years. Mr Wenzel's notes concerning suicidal ideation dated from December 2008, and a reappraisal performed today would lead to restoration of his licence. He takes his medication regularly and is trying to protect himself and others. He prays for longevity for all and would not himself hurt a fly. 2. His reason for firearms ownership was control of feral animals, and he still has the rural landholding to which that relates. Wollongong police earnestly intend to inconvenience him and his son. They think he wants to break into the safe storage, but he has no keys for it, and their letter of 22 June 2015 shows their intention. All this is due to Holmes's report, which was flawed because he had no intent to approach Commander Stewart at any hour. He went there at that time so as not to involve Commander Stewart and to avoid the queues that would be there in daytime. He was seeking information about Kennedy and Davis, as Stewart had advised him to make periodic visits to the station. 3. In cross-examination Holmes had begun to talk about "Dootch". He had heard that story before, and the only person he could have heard it from was Holmes, which proved that his report was false. He mentioned other officers, including Constable Humphrey, but that was wrong. He had said the applicant was there only to see the commander, but he would never have gone there with that intention. The statement on p 278 of exhibit R2 is wrong, as their conversation had been about Kennedy and other aboriginal persons. He had heard that story before. 4. As was set out in his statement of 29 January, exhibit A1, he did not confront the police and followed the advice of the commander. Exhibit A1 summarizes his submissions. Paragraph 9 was good advice (it reads "The inclusion of sufficient reason and reference to a specific Law Note were explicitly recommended by the WLAC Duty Officer (A/insp D Richardson dated 20.3.13) and both items failed substantially to exist unto this present time". 5. The triggering of the fitness test was flawed, the test itself being performed by the best experts appointed by Livermore. It was inadequate and bereft of research and substance. And Livermore's response is deprived of credibility. The internal review made a more concerted effort to apply the law, but his case was different from those cited. There was no threat of violence, there had been no clashes with police until the Holmes report, which is shallow in relation to comparative research on other jurisdictions. It should have been more rigorous and thorough and investigated the position in other states. The tribunal should look for federal and other state guidelines for assessing risk and capacity. 6. His condition is permanent, but it is depression and anxiety only. He had omitted ticking the "Yes" box about suicide and self-harm in his licence application of 20 December 2012 and should have marked the answer as "Yes". It was an error. 7. The Medical Journal of Australia had discussed risk assessment and capacity assessment. There was also a December 2003 report from Johns Hopkins University about the likelihood of relapse. Sporting Shooter magazine demystified the myth of mental health disorders. 8. He had not been given a receipt when his firearms had been seized, and came upon it only when it turned up in exhibit R1, Tab 6. If he had had it earlier, he might not be here. The police had taken away family heirlooms, which are now in police storage in his son's name. 9. He was being denied his rights under s 116 of the Constitution. He is bewildered as to why Holmes would write that report and conjure it up. There are aboriginal issues at Wollongong LAC. They need proper audio-visual equipment and storage, as it is a dangerous place as it stands. 10. In reply Mr Caines said that his unlicensed possession between 2004 and 2007 after his licence had expired was an oversight both by him and by the registry. When they raised it with him, he reapplied for his licence. They shared the responsibility, but he was being nailed to a cross for it. The Holmes report was flawed because it said his intention had been to see the commander, but he did not go there for that reason. During the 25 minutes he had been there, they had a different conversation. 11. The fitness test was incredible because it was based on no evidence other than that of Holmes, and he is a liar. Mr Caines was not so stupid as to do that. Stewart had invited him to call at the station because of his status as aboriginal tenant-in-chief for the region's archaeological heritage. That was not an elected position, but he was directed by his parents to hold that office. Holmes had a preconceived idea about people who called at the police station at that hour, and assumes that they have a problem. He should be reviewed, as he has a political or religious attitude to guns in society. Mr Caines had been denied justice, as Kennedy was of no interest to the police. He was released on bail for paedophilia charges and the trial is to take place in December 2015. He had taken the matter to Commander Stewart. 12. "Your system under your Crown is a very frustrating process", he said. Aboriginal justice is more instantaneous, but Kennedy has been an issue for two decades, and for him personally for 15 years. He encouraged the tribunal to do its best and said that "virtually no risk" is a vague concept and Ward should be reviewed. The United States references were of value. Positive discrimination should allow for the return of his licence, with or without conditions. Section 116 might not be justiciable, but he had a genuine reason. Holmes was a cowboy who had wanted to follow him. He wished a video recording were available, as he was not so stupid and only wanted to appeal against a negative outcome. Consideration 1. Under s 63 of the Administrative Decisions Review Act 1997, the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, that 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 on it by the Civil and Administrative Tribunal Act 2013 No 2 (s 29) and the Firearms Act, including the Commissioner's revocation of a licence: 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. As the use of the word "may" in s 24(2) makes clear, the Commissioner has a discretion whether or not to revoke a licence. The Act provides no explicit guidance on how the discretion should be exercised, however. 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 a "privilege that is conditional on the overriding need to ensure public safety". Consistently with that approach, the Act confers on the respondent the power to revoke a licence in circumstances where it is considered that the continued holding of a licence is not in the public interest: s 24(2)(d), cl 19 of the Firearms Regulation 2006. 4. The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities, to the standard enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336. There is, however, no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]. 5. The central issue to be considered is whether the applicant's continued holding of a licence would be contrary to the public interest. The respondent contends that it would be, on the grounds that: 1. The applicant failed to renew his firearms licence after it expired on 20 May 2004 but retained possession of four firearms, while unlicensed, until 2007; 2. the applicant gave incorrect or misleading answers to questions in his later applications for a licence for renewal; and 3. the incident at Wollongong police station on 18 March 2013, coupled with a psychologist's report indicating a risk of a possible relapse into depression, leads to the conclusion that the applicant's holding of a firearms licence cannot be adjudged as presenting virtually no risk to the safety of others or of himself. The failure to renew 1. A firearms licence on the basis of primary production was issued to the applicant in 1999 and expired on 20 May 2004. Nevertheless, the applicant retained possession of four firearms while unlicensed from 20 May 2004 until his firearms were seized by police on 2 May 2007. He did not deny the facts, but said it had been an oversight by the Firearms Registry as well as himself, as they had failed to remind him of his licence's impending expiration. He had reapplied for his licence as soon as the police had drawn the matter to his attention. When asked in cross-examination why he considered there had been an oversight by the Registry, he replied "Did I say that? I shouldn't be solely blamed for that". In his submissions he described it as a case of shared responsibility and complained that he was being "nailed to a cross for it". 2. The applicant appeared not to accept that he had a strict personal responsibility to keep his licence current and remain in full compliance with the Act. To fail to renew for three years, and then to take action only after the police had seized his firearms, indicates rather more than an oversight and something closer to a complete disregard for his obligations. That is borne out by his repeated claims that the Firearms Registry was under an obligation to alert him when his licence was about to expire, which suggests a refusal to accept responsibility for his own actions. False or misleading statements in applications 1. Following the seizure of his firearms in May 2007, the applicant completed an application for a new licence dated 8 August 2007 (exhibit R1, 4a). Question H(d) asked, "Have you in NSW or elsewhere:…(d) Attempted suicide or self harm or been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?". The applicant filled in the "Yes" box and provided the following details: "Medication use ("Zoloft"/Sertriline) for illness, due to closed head injury – Nov 1988, not for any suicide, self-harm, alcoholism or drug dependency reasons; as previously submitted per previous licence applications….". 2. The applicant thereby failed to disclose his treatment for mental health problems, including depression. As Mr Wenzel's report of 18 October 2013 stated, he had been treated for fifteen years for depression and chronic pain, and had developed depression and related problems as a result of the workplace head injury. It was also incorrect to state that he had not been referred or treated for alcoholism or drug dependence. Clinical notes, apparently from 2004, state that he has "had some problems and substance abuse" (exhibit R2, p 24). On 21 August 2004, Dr Gordon Davies wrote, "However there have been increasing problems with gambling and substance abuse, and he has again become depressed, developing in company with this some degree of paranoid ideation". 3. While there is no suggestion of any suicide attempt, Dr Robert Wade, psychiatrist, noted on 17 June 1995 that "He has some thoughts of suicide. When driving he can think 'here I can do away with myself' and at times he is frightened that he might do so". Dr JD Harley agreed with Dr Wade's report (exhibit R2, pp 105-106). Mr Wenzel reported on 20 January 2009 that "Mr Caines has been troubled with long-standing periods of severe depression including suicidal ideation". In the previous month, on 12 December 2008, Mr Wenzel's clinical notes record that the applicant was suffering from "[depression including] suicidal ideation in recent months but never totally absent" (exhibit R2, p228). His attention being drawn to those passages in cross-examination, Mr Caines said he did not recall that and was "surprised by what [Mr Wenzel] found". He did not know what Mr Wenzel had interpreted as suicidal. Asked whether he had experienced suicidal thoughts since 2008, he answered "No", followed by a long pause, and then said he did not recall it in 2008 or earlier either. 4. While Mr Wenzel's observations postdate the 2007 application, they do suggest that the 1995 symptoms were not an isolated incident. They are also relevant to the 2012 application. 5. The form that the applicant completed on 20 December 2012 when applying to renew his licence contained in section F the following question: "Have you in NSW or elsewhere:…d) Have you ever attempted suicide or self harm, or in the past twelve months been referred or treated for alcoholism, drug dependence or a mental or nervous disorder or illness?" The applicant marked the "No" box in answer to that question. That was plainly false, as he had been under treatment for mental disorders for over twenty years. In cross-examination he did not deny that it was untrue, but again said he was "surprised" to learn of it. He would have detailed his course of treatment and answered "Yes" as in 2007, and would like the opportunity of updating his records. It had been an innocent oversight and he wished the Firearms Registry had raised the point with him. 6. In his submissions the applicant said he had "omitted ticking the box" in response to the question about attempted suicide and other matters, but it was no omission. He marked the "No" box clearly and with a firm hand. His provision of incomplete and misleading details in response to the same question in his 2007 application also reduces the likelihood of an honest mistake in the 2012 application. I find that his answer to that question was an attempt to mislead or deceive the respondent. The Wollongong police station incident 1. The respondent's version of the incident at 1:30 to 2:00 a.m. on the morning of 18 March 2013 is based on the evidence of LS/Const Holmes, which has been summarized above. It describes the applicant's arrival at the enquiry desk appearing tired and with bloodshot eyes (but not intoxicated) and demanding to see Commander Stewart. He kept repeating the same request, initially in a normal tone of voice, but becoming progressively louder. The constable explained repeatedly that the commander did not work the night shift and asked for the applicant's telephone number so that he could be contacted the next day. The applicant appeared not to understand or register the constable's replies and gave the appearance of being delusional and of a person who might be suffering a mental breakdown. He concluded by stating that he wished to make a complaint against the commander. 2. The exchange attracted the attention of another officer, Const Humphries, who told LS/Const Holmes that the applicant had visited the station in the early hours of the previous morning and had on that occasion also repeatedly demanded to see the commander and had spoken in an incomprehensible manner. Ascertaining from a COPS database search that Mr Caines owned a number of firearms, he made a report requesting that a mental assessment be conducted on Mr Caines as a firearms licence holder (exhibit R1, 5). 3. The applicant's account, also outlined above, was that his attendance or attendances at WLAC on 18 March 2013 were orderly and reasonable but had "not been respected, recognised or reciprocated". He had visited the station at 1:30 a.m. to enquire about current action against RL Kennedy and had definitely not demanded to see the commander, though he might have mentioned having spoken to him earlier. He had not been suffering from sleeplessness and was "determined and clear-headed". He could not recall another visit in the early hours of the previous morning or a discussion with Const Humphries and did not know how many times he had visited the station. He had gone to the station at 1:30 a.m. in order to avoid disrupting normal operations and so that he would not have to wait in a queue. 4. The two versions of the incident are thus in stark conflict. Mr Caines's account, however, is also in conflict with Mr Wenzel's reassessment on 26 September 2013 in which he noted that the applicant had returned to Wollongong police station during a prolonged period of suffering from insomnia, for the purpose of complaining about the assault by Kennedy. He had visited the station twice to report the assault but had not been able to speak to the commander "The third presentation to report this assault was at 2:00 a.m. as he had not been able to sleep due to his pain". When Mr Zoppo pointed out to him the difference between that account and his statement that he had not been suffering from insomnia and had visited the station in order to ask about progress on Kennedy's matter, he replied, after a long silence, "Can I re-read that? I don't see the differences". 5. The applicant's only explanation for the difference between his version of events and the respondent's was that LS/Const Holmes was a liar, that the whole of WLAC might be like that, that he was "cowboy", a "vigilante cop" with an agenda based on "a political or religious attitude to guns in society" who wanted to get back at him when he saw he owned guns and "should be reviewed". He could not understand why he was "being persecuted". No evidence was adduced to support any of those allegations. 6. His attack on LS/Const Holmes and WLAC broadened into a wider condemnation of the whole process of revocation and review, which he regarded as a standing "affront", a farce and a travesty. He saw little merit in the justice system as a whole, saying that "Your system under your Crown is a very frustrating process" and casting aspersions on the tribunal. 7. Although the evidence relating to Const Humphreys's comments on 18 March is hearsay, I am satisfied in light of all the evidence on the preponderance of probabilities that the respondent's version of that incident is the correct one. 8. The expert evidence relating to the applicant's mental condition is of major importance in assessing any foreseeable risk to public safety. After the 18 March incident, the applicant was asked for a psychiatric or psychological report. He consulted Dr Gordon Davies, but for some reason no report from Dr Davies was forthcoming. He then returned to Mr Wenzel, who had treated him in the past, and whose report concluded that the applicant "currently has the ability to form a rational judgment and ability to exercise willpower to control physical acts in accordance with rational judgment. As far as I am aware he has not previously demonstrated an inability in this regard especially in relation to the use of firearms…. I am of the view that Mr Caines's underlying psychological condition or impairment does not have the potential to put public safety at risk if he was to be in possession of his firearms". 9. There are certain reservations about that conclusion, however. The first is that Mr Wenzel, understandably enough, proceeded on the basis that the applicant's account of the 18 March episode at Wollongong police station was the correct one when, as I have found, the respondent's version is probably the correct one. 10. The second reservation is that Mr Wenzel's conclusions are based on the applicant's current condition and are qualified in two places by the caution that there is always the possibility of a relapse. He noted in his 4 February 2012 letter to Dr Watson that the applicant was suffering from "ongoing periods of at times severe depression and anxiety" and would appreciate a possible referral for a psychiatric opinion. 11. In oral evidence Mr Wenzel repeated that there was a possibility of relapse in anyone who has had depression, but from 2008 onwards Mr Caines had maintained his treatment with a psychiatrist and medical monitoring and had tried to prevent relapse. Nevertheless, he was likely to continue to suffer from depression, and medication and life factors might trigger a reaction. Such matters would be outside his control. 12. Mr Wenzel explained that as he had not seen the applicant between February 2012 and September 2013, he was not treating him at the time of the police station incident. He agreed, however, that the applicant had displayed a lack of judgment at that time and he did not know what had prompted it. It was "at odds with normal behaviour", and if it had happened as alleged it would also be at odds with his ability to form rational judgements and act on them. He concluded that there could be some risk in Mr Caines having firearms, and he could not say that there was virtually no risk. 13. Dr Watson expressed the view in a 17 February 2015 report that as a general rule patients who have a history of depression should not have firearms. He wondered whether the applicant's firearms could be returned to him but with the firing mechanism disabled. The applicant was dismissive of that evidence but it is recent and cannot be disregarded. 14. The expert evidence also highlights a tendency of the applicant to seek to diminish the severity of his symptoms. Some examples: * In his 2007 licence application he omitted any reference to mental disability and in cross-examination said he had suffered a purely physical injury. * In cross-examination he said he was not sure whether he still suffered from depression, but on 4 February 2012 he complained to Mr Wenzel of ongoing periods "of at times severe depression and anxiety". Mr Wenzel also reported that he still requires antidepressants * He attributed any continuing mood disturbances and attitudes of suspicion to Const Holmes alone. * He declared himself "surprised" at Mr Wenzel's 2008 finding of suicidal ideation and said he did not know what the psychologist would have interpreted as being suicidal. * Asked if he was still taking Lovan and Neulacta for his mental conditions, he replied that they were for his "mental well-being". He was still taking Pericyazine and Lovan daily, but they were in substitution for Zoloft. * When asked what happened when he forgot to take his medication, he replied that the lack of heart medication made itself felt, but he did not notice any difference otherwise. But he told Dr Davies on 21 December 2012 that he had a problem with Zoloft "wearing off" if he forgot his dose (exhibit R2, p 250). 1. The issue in this case is whether, in light of the above evidence and findings, it is contrary for the public interest for the applicant to retain a licence, within the meaning of s 24(2)(d) of the Act and cl 19 of the Firearms Regulation. The appeal panel of NCAT's predecessor 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 v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [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]. The 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. The central point was whether the tribunal was able to exclude the possibility of a risk to the public. 2. In applying the public interest test, an often-quoted passage is the language in Ward where Hennessy LCM stated that "in considering public safety under the Act, the tribunal must be satisfied that there is 'virtually no risk' to public safety". In Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59, [72] – [79] I concluded, after a survey of a number of authorities, that the "virtually no risk" test is "applied in a nuanced manner, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety". 3. The applicant has never been charged with a firearms offence and there is no record of his ever having used or stored a firearm in an improper or unsafe manner. He has no record of violence of any kind. 4. Nevertheless, the facts relied on by the respondent give rise to real cause for concern. His failure to renew his licence for a long period, and in fact applying for a new licence only when prompted by police seizure of his firearms, suggests an attitude going beyond a mere oversight and partaking more of the nature of total disregard of his licensing responsibilities. His deliberately incomplete, false or misleading statements about his mental health in two licence applications are a serious matter. The questions asked in the application forms are directly related to public safety and a false or misleading answer can thus create a public safety risk. 5. The applicant's seemingly delusional behaviour at Wollongong police station between 1:30 and 2:00 a.m. on 18 March 2013 and the previous night at about the same time is necessarily seen in the context of his history over more than two decades of depression, anxiety, suicidal ideation, substance abuse, paranoia and other symptoms stemming from a workplace head injury. The most recent expert evidence, Mr Wenzel's report of 18 October 2013 is largely supportive of the restoration of his licence, but it is qualified by his repeated references to the risk of relapse and by his reliance on the applicant's version of the events of 18 March. In the end Mr Wenzel concluded in his oral evidence that he could not say that there was "virtually no risk" in the applicant's having a licence and that there was in fact some risk involved where gun ownership by Mr Caines was concerned. Dr Watson was of the view that depressives should never have guns. 6. The applicant's tendency in his evidence to try to diminish the severity or significance of his symptoms is also cause for concern. 7. While the applicant has no record of violence or of any threatening use of firearms towards others, public safety under the Act also includes the safety of the licence-holder. 8. I therefore conclude that for reasons of public safety, it is not in the public interest that the applicant should hold a firearms licence. 9. 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 July 2015