Commissioner's firearms licence refusal overturned

The Tribunal set aside the Commissioner's decision to refuse the claimant's firearms licence, finding no real and appreciable risk to public safety. The claimant had a history of mental health issues but had sought medical assistance and was not considered a risk.

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: [NAME] v Commissioner of Police [2023] NSWCATAD 226 Hearing dates: 28 July 2023 Date of orders: 23 August 2023 Decision date: 23 August 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: [NAME], Senior Member Decision: The decision of the Commissioner of Police NSW made on 4 May 2022 to refuse the firearms licence held by the applicant is set aside. Catchwords: ADMINISTRATIVE REVIEW – licensing - firearms – refusal –public interest – mental illness - whether risk to public safety Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW) Mental Health Act 2007 (NSW) Cases Cited: [COMPANY] v [NAME] [1995] IRCA 540; (1995) 131 ALR 657 [NAME] v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 [NAME] v Commissioner of Police, NSW Police Force [2020] NSWCATAD 87 [NAME] v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 [NAME] v Commissioner of Police, NSW Police Service [2017] NSWADT 97 [NAME] v Commissioner of Police, NSW Police Force [2022] NSWCATAD 111 [NAME] v Commissioner of Police, NSW Police Force [2023] NSWCATAD 3 [NAME] v Commissioner of Police, NSW Police Service [2000] NSWADT 28 [NAME] v Commissioner of Police, New South Wales Police [2004] NSWADT 110 Texts Cited: None Cited Category: Principal judgment Parties: [NAME] (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: [redacted] [NAME] (Respondent) File Number(s): 2023/00008876 Publication restriction: None

Judgment

Introduction 1. This is an application by [NAME] ([NAME]) seeking a review of the Notice of Refusal decision by a delegate of the Commissioner of Police (the Commissioner) to revoke [NAME]'s firearms license in a letter dated 4 May 2022 (Refusal Decision). [NAME] applied for an Internal Review of the Refusal Decision on 20 May 2022 but the Refusal Decision was not reviewed within the 21 day period. [NAME]'s application to the NSW Civil and Administrative Tribunal (Tribunal) was not filed within time pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) but no issue was taken with the lateness and the Commissioner consented to an extension of time being granted.

2. On 16 May 2022, [NAME] lodged a re-application for a firearms licence. [NAME] has held a firearms licence since 2007 without any concern until the licence was suspended on 14 July 2021.

3. The firearms licence was suspended because sometime in mid-June 2021, [NAME] had thoughts of suicide. He sat in his shed at home, took some rope and commenced to make a noose. The precursor to his thought of suicide stemmed from finding out that his wife was having an affair.

4. The Refusal Decision set out the reasons for the refusal to be:

1. Concerns about mental health – 'It is conceivable that if you were to have ready access to firearms and were to have further thoughts of self-harm, there could be more tragic consequences.'

2. Providing information that [NAME] knew was false or misleading on the firearms application form in contravention of s70 of the Firearms Act 1996 (NSW) (the Act).

1. In refusing the firearms licence, the Commissioner relied on s11(7) of the Act, which prescribes that the issue of the licence would be contrary to the public interest.

2. In the Tribunal, the Commissioner also raised concerns regarding the 'genuine reason' for the firearm licence and submitted that the Tribunal ought to reject the applicant's evidence and that of his wife as it was not honest.

Background 1. [NAME] is married to [NAME]. They have been married for 26 years and have two children. In May 2021 (mother's day) [NAME] found out that [NAME] was having an affair. A few weeks after finding out about the affair he was contemplating suicide and commenced to make a noose (the noose incident).

2. On 14 July 2021 [NAME] was at work. He was ignoring repeated phone calls from [NAME]. He rang [NAME] on his way home. 3. [NAME] made a phone call to [NAME] soon after the phone call with [NAME] ended. The sound recording of the [NAME] phone call is in evidence. During the phone call, [NAME] said to the operator that: 1. [NAME] asked to speak to the children; 2. told them that he was not coming home; 3. said, 'I am in a place I need to be'; 4. strung up a string 6 weeks ago to hang himself; 5. held a knife to his wrist, which she had to stop him from using on himself end of last week; 6. she took [NAME]'s keys to the firearms cabinet off him; and 7. never harmed her or the children. 1. [NAME] arrived home while [NAME] was on the phone with emergency services. Soon after police and paramedics attended at the property. The police confiscated [NAME]'s firearms and suspended his firearms licence. Police records indicate that [NAME] told the police that he was struggling emotionally due to the affair but he did not have suicidal thoughts. He was getting help and support from friends and family. The police were satisfied that there was no threat of self-harm.

2. On 16 March 2022, [NAME] completed an online renewal form for a firearm licence. [NAME] answered 'no' to the following question: Have you, in the past 12 months been referred or treated for a mental or nervous disorder or illness?

Relevant Legislation 1. Section 9(1) of the Administrative Decisions Review Act 1997 (ADR Act) and section 75(1)(c) of the Firearms Act confer jurisdiction on the Tribunal to review the decision to refuse [NAME]'s firearms licence.

2. Section 63 of the ADR Act provides that, in determining an application for review, the Tribunal is to make the correct and preferable decision, having regard to the material before it, and any applicable written or unwritten law.

3. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act.

4. The principles and objects of the Act are set out in s 3(1), relevantly: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety ...

1. Section 11(7) of the Act provides, relevantly: 11 General restrictions on issue of licences .... (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

1. Section 12(1) of the Act provides that the Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. Recreational hunting or vermin control is a genuine reason where there is proof of permission given by the [NAME] to the person seeking a licence.

2. Section 70 of the Act makes it a criminal offence for an applicant to 'make a statement or provide information that the person knows is false or misleading in a material particular'.

Issues 1. A key issue in contention in these proceedings is that [NAME] almost entirely resiled from the statements she made during the [NAME] call in her statement and during cross examination. Critically, [NAME] denied that [NAME] threatened to cut his wrists with a kitchen knife about a week before the phone call and that he was suicidal during the phone conversation on the day of the phone call.

2. The Commissioner's submission was that the Tribunal should find that [NAME] did attempt or threaten to attempt suicide as stated by [NAME] during the [NAME] call and that Mr and [NAME] were dishonest in their denials to the Tribunal. 3. [NAME]'s evidence before the Tribunal was that she made up the incident with the knife and that the real reason she called [NAME] was not because she thought that [NAME] was planning on committing suicide but because she wanted police to find him so that she could talk to him about their relationship difficulties, specifically she was very concerned that he had decided to end the marriage.

4. The Tribunal is required to determine, on the basis of the applicable law and the evidence before it, whether the decision to refuse the firearms licence is the correct and preferable decision. That requires the Tribunal to determine whether: 1. [NAME] has a genuine reason to hold a firearms licence; 2. [NAME] would pose a risk to public safety (including himself) if he was to hold a firearms licence; and 3. [NAME] knowingly provided false and misleading information on his firearms application.

Evidence 1. In these proceedings, [NAME] relied on his own statement, a statement from his wife, [NAME] as well as character references and medical reports. There are two medical reports from [NAME], a psychologist. [NAME] was not required for cross examination.

2. Reliance was also placed on a report from [NAME], General Practitioner (GP) and [NAME], a senior clinical and health psychologist. [NAME] and [NAME] were required for cross examination but due to work commitments were not available to give evidence. Without placing any blame on either party, it was not in dispute that the applicant had a limited time to make arrangements with the doctors to make themselves available for cross examination. The Tribunal admitted the reports from [NAME] and [NAME] with the understanding that their evidence was not able to be tested by the Commissioner. 3. [NAME] also relied on letters of authority to shoot vermin, recreational hunting from the landowners at Moondi and Attunga NSW, dated 23 April 2023 and 24 April 2023.

4. The Commissioner relied on evidence tended pursuant to s58 of the ADR Act. The evidence included an audio recording of the telephone call [NAME] made to emergency services on 14 July 2021.

5. The Commissioner also tended a two page document that included information provided to persons filing in the firearm application form online in a drop down text menu. The drop down text menu provides a definition of mental illness to be: Mental illness is defined in the Mental Health Act 2007 as being: Mental illness means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any or more of the following symptoms: (a) delusions, (b) hallucinations, (c) serious disorder of thought form, (d) a severe disturbance of mood, (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a) to (d). Examples of the above may include, but are not limited to: substance induced psychosis, schizophrenia, delirium, dementia, bipolar disorder, post traumatic disorder, personality disorder, depression, anxiety, substance induced mood disorder, postnatal depression, etc.

1. The examples in the drop down text menu do not appear in s4 of the Mental Health Act 2007.

Applicant's evidence 1. [NAME]'s evidence regarding finding out about his wife having an affair and its impact on him was: This discovery absolutely devastated me. On one night around mid-June 2021, I sat in our shed and started to use a rope to begin to form a noose. I did not finish making it as I realised what I was doing and stopped. I then went and let [NAME] know what I had done and what my thoughts were. 1. [NAME] stated that following the noose incident, his wife asked him for the keys to the firearms cabinet and he agreed to give them to her. [NAME] denied that he was suicidal at the time he agreed to give the keys to his wife but gave her the keys to make her more comfortable. 2. [NAME]'s evidence is that apart from incident in the shed in June 2021 when he had suicidal thoughts and started to make a noose, he has not had any thoughts of suicide and that this single incident was entirely out of character and was brought on as a result of finding out that his wife had an affair. [NAME] stated that at the time he had suicidal thoughts he thought to himself, 'what am I doing?', 'I am not that kind of person.' 'I thought the better of it before I got to it.' [NAME] described it as a 'fleeting thought' and that he would never consider harming himself or any person. [NAME] denied ever self-harming or having thoughts of suicide before or after this incident. 3. [NAME]'s evidence was that he did not consider that he ever had a mental illness and that his sessions with [NAME] were about marital issues, it was about whether he should remain in the marriage and can rebuild trust. The discussions focused on what led up to the affair and [NAME] provided tools such as calming techniques to help with his mindset and his stress ceased. 4. [NAME] admitted that from June 2021 that he had 'horrendous anxiety', 'feeling shit', shaking hands and trouble sleeping but that it did not last long. 5. [NAME] stated that he relied on the drop down text menu on the firearm application form and [NAME]'s report in answering 'no' to the question: 'Have you, in the past 12 months been referred or treated for a mental or nervous disorder or illness?' 6. [NAME] agreed during cross examination that he may have answered the question on the firearms form incorrectly as he accepted that his GP referred him to [NAME] due to stress and anxiety but denied that he was dishonest or sought to mislead or minimise the incident because he knew that if he disclosed the incident it would impact on the firearms application. 7. [NAME]'s evidence regarding the phone call with his wife on 14 July 2021 was that: I informed [NAME] during the phone call that I was considering ending our marriage, to which [NAME] became quite distressed. She put our children on speaker on this phone call to try and convince me not to walk away from her and our children. During this call, I said to my son, that he would need to be the man of the house and he needed to look after [NAME] as I was considering leaving. This, incidentally, is the same statement I was told by my father when he chose to leave my mother after he discovered my mother had had an affair. 1. [NAME]'s evidence was that his wife was calling him all day. He called her in the afternoon. He stated that he had no intention of speaking to the children but that [NAME] put them on. [NAME] stated that he said to his son who was eleven, 'you have to be the man of the house' and 'stay strong'. [NAME] denied that he said these words because he was contemplating suicide but because he was contemplating leaving the marriage. 2. [NAME] stated that he did not intend to speak to his children or say those things but it was said in extreme emotion, in the heat of the moment. [NAME] stated that if he had his time over he would have done things differently and he regretted saying those words to his son. [NAME] denied that he said to [NAME], I am where I need to be. [NAME] stated that at the time of the phone call with his wife he was close to home enjoying the view and contemplating his future. 3. [NAME] agreed that he had an application on his mobile phone so that his wife could see his location. He turned the application off as he did not want to talk to his wife who was calling him all day. 4. [NAME] denied holding a knife to his wrist. In [NAME]'s opinion, his wife made it up to get the police to find him on 14 July 2021.

5. After the phone call with his wife he listened to a telephone message from the police and drove home. 6. [NAME] stated that he disclosed to [NAME] and [NAME] and [NAME] that he had suicidal thoughts when he was making the noose in the shed in June 2021.

7. In July 2022, [NAME] joined an 'executive father's group' which provided intensive support for fathers who have struggled to get the balance right with family. [NAME] stated that: This involves multiple coaching sessions each week, with coaches and experts tailored to my specific needs for such things as emotional and mind set assistance, health, nutrition, training, sleep, relationships, habit building, time management, and assistance with parenting. The program tracks exercise, nutrition and reviews daily journaling on a weekly basis. 1. [NAME]'s evidence is that his relationship with his wife and children has deepened and strengthened as a result of his wife's affair.

2. In regard to use of firearms, [NAME]'s evidence was that he has had a firearm licence since March 2007 and has used firearms for recreational hunting and vermin control. He is the sole feral animal control person with permission to hunt on properties owned by [NAME] in Moonbi and Attunga, NSW. The properties are classified as voluntary conservation areas and are in part regulated by National Parks and Wildlife. [NAME] records and reports all feral game animals killed on a quarterly basis. He also holds an NSW restricted game hunting licence, which permits him to hunt on public land. [NAME] stated that he had never been charged with any criminal offence or misused a firearm. He takes firearms safety very seriously and is held in high regard by his family and friends. [NAME] is also involved in the sport of archery and is a long term member of the local Rural fire service. 3. [NAME] relied on a number of character references from [NAME] and [NAME]. [NAME] is [NAME]'s manager at his place of work. The reference states that it is provided to assist with the firearms licence. [NAME] has known [NAME] for 6 years and states that he has found him to be 'trustworthy', has no knowledge of him undertaking any anti-social behaviour or activities and believes that he has high regard for his own personal well-being and the safety and well-being of those around him. 4. [NAME] has known Mr and [NAME] for 15 years and is aware of their marital issues. [NAME] has been hunting with [NAME] and stated that he has 'a safety first attitude for himself and those around him and the environment.' 5. [NAME] has known [NAME] for 10 years. [NAME] has been hunting with [NAME] and that '[NAME] is over the top in his safety and management of firearms. [NAME] stated that 'If there was ever a thought of self-harm entering into the situation, [NAME] throughout the turmoil that he has endured in the last 5 months, has never shown or expressed anything in such manner.'

Medical Evidence 1. [NAME] went to see his GP, [NAME] as he was not sleeping sometime in May 2021. [NAME] placed [NAME] on a Mental Health Plan and referred him to [NAME], a psychologist as he was experiencing an adjustment (stress) reaction with anxiety and depressive symptoms.

2. In a medical certificate dated 11 March 2023, [NAME] stated: I … prepared a mental health care plan for [NAME] to obtaion (sic) some marriage counselling for temporary adjustment disorder with anxiety symptoms, mainly difficulty sleeping. This was an isolated incident with his wife and since then they presented in my practise together and no further issues since then raised by them or any negative dynamic observed during clinical sessions, and therefore this isolated incident does not qualify as a mental health disorder that requires further treatment.

1. A report from [NAME] dated 16 January 2022 (first report) stated that he counselled [NAME] from 1 July 2021 until the end of the year 'to help him manage stressors associated with relationship strain within his marriage'.

2. The report is based on information provided by [NAME], referral from [NAME] and a Suspension Notice issued by [NAME] on 14 July 2021. The Suspension Notice states that [NAME] has had thoughts of suicide, made noose one month ago and admitted he is going through hard times and feels like shit. 3. [NAME]'s opinion is that [NAME] 'does not currently meet criteria for any mental health disorder' and that the comments made to [NAME] on 14 July 2021 were based on the heightened marital strain and feelings of disillusionment. [NAME] did not consider that [NAME] was experiencing any suicidal ideation as at the date of the report and that no such comments were raised with him throughout the time he was treating [NAME].

4. A report from [NAME] dated 14 March 2023 (second report) stated that [NAME] did not have a mental health disorder in December 2021 or on 13 March 2023 which was the last time he saw [NAME]. [NAME] explained in his report the tools and methodology he used to assess [NAME]. 5. [NAME] also relied on a report from [NAME], a senior clinical and health psychologist. [NAME] provided a report for the purpose of these proceedings based on a consultation with [NAME] on 5 June 2023. In the report [NAME] explained the method of the risk assessment and psychometric testing she conducted. [NAME]' opinion was that [NAME] was a 'risk' at the time the firearms were removed but 'these incidents of concern' stabilised shortly after coming to light and [NAME] had been stable for nearly 2 years. [NAME]' opinion was that [NAME] did not exhibit adjustment disorder with mixed anxiety or depressive mood and was not on medication in March 2023.

[NAME]'s evidence 1. During cross examination, [NAME] stated that she had seen all of the evidence from the Commissioner and had assisted [NAME] to prepare his firearm application and the application in the Tribunal but did not tell him what to write. She stated that she was 100% in support of [NAME]'s application for a firearm licence. 2. [NAME]'s evidence was that on 14 July 2021 she made a call to [NAME] as she was concerned for the whereabouts of [NAME]. Prior to the call to [NAME] she had a telephone conversation with [NAME] during which they had an argument which was an extension of arguments they had during the day. [NAME] stated that 'during the call I heard [NAME] say words that I interpreted as worrying given the events that had occurred earlier that day.' 3. [NAME] said that she had concerns for [NAME]'s welfare as he was having a very hard and stressful day and said that he would not be coming home and needed to 'work some things out'. [NAME]'s recollection was that during the [NAME] call she told the operator that [NAME] had not made any threats of self-harm during the call. 4. [NAME] stated that she was 'horrified' when she listened back to the [NAME] phone call and that she made the call when she was exceptionally emotional, sleep deprived and was with the two children who were also emotional. She stated that she did not act rationally and said whatever she thought would get police's attention. She did not know who to turn to and with hindsight should not have involved the police in her argument with [NAME] and had read into things that were not there because of her emotional state. She wanted someone to get [NAME] on the phone so she could talk to him. She was genuinely concerned because she did not know where he was and called [NAME] so that the police could find him. 5. [NAME] denied that she was making up her evidence during cross examination, she denied that [NAME] said to her that he was going to end his life. She stated that [NAME] said to her that he was coming home late. [NAME] stated that she was distraught because she thought she had ruined her marriage and brought devastation to the family as it would be broken. She stated that she called [NAME] because [NAME] would not talk to her and she 'just wanted to find him'. [NAME] stated that she completely made up that [NAME] held a knife to his wrist and that [NAME] did not say a last goodbye or make a threat to take his own life. 6. [NAME] stated that she has not witnessed [NAME] obtain any treatment nor require any assistance with his mental health. Her opinion was that [NAME] would not jeopardise an individual's safety. 7. [NAME] had discussions with [NAME] after each session he had with [NAME]'s opinion was that the sessions were about marriage issues and not because he had a mental illness. After each session [NAME] was reassured about their marriage. [NAME] had attended on [NAME] with [NAME] and had never heard him say that [NAME] had a mental illness. In her opinion, [NAME] never had a mental illness.

Submissions

Submissions by the Commissioner of Police 1. The Commissioner provided written submissions and supplemented them orally at the hearing. The Commissioner relied on section 11(7), s12(1) and 70 of the Act and submitted that the issue of the firearm licence to the applicant would be contrary to the public interest on the following bases. First, there is no genuine reason for the firearm licence. Secondly that [NAME] has been dishonest in his evidence before the Tribunal and in filling in the online form for the firearm licence. Thirdly that [NAME] had thoughts of suicide in June 2021 and on 14 July 2021. The Commission further submits that [NAME] held a knife to his wrist sometime in June/July 2021.

2. The Commissioner submitted that [NAME] minimised the noose incident in June 2021 and failed to inform the medical practitioners that he had suicidal ideation in July 2021. The Commissioner submitted that [NAME] had no understanding of the seriousness of what happened then or now and that real risk remains if he was to be granted a firearm licence.

3. The Commissioner submitted that none of the medical reports or the character references referred to the noose incident in June 2021 or were provided with all the s58 documents which is concerning and little weight ought to be given to them. 4. [NAME]'s evidence that she did not consider that [NAME] was contemplating suicide in July 2021 should be rejected as it was farcical that she would call [NAME] if she did not believe that [NAME] was contemplating suicide and that the transcript of the [NAME] call speaks for itself.

5. The Tribunal was urged to find that [NAME] and [NAME] concocted their evidence before the Tribunal and that [NAME] had a mental illness because [NAME] wrote the words 'depression and anxiety' on the Mental Health Plan, which is in effect a diagnosis and because of the way [NAME] described feeling in June – July 2021 to the Commissioner and the police.

6. As [NAME]'s report stated that [NAME] 'does not currently' have a mental illness the Tribunal should infer that [NAME] was of the opinion that [NAME] did have a mental illness in the past. As such, [NAME] was dishonest in filing in the application form and it would not be in the public interest for him to have the privilege of a firearm licence.

[NAME]'s submissions 1. [NAME] provided written submissions and supplemented them orally at the hearing. [NAME]'s submission was that he was a very honest witness who understood that firearm licence is a privilege. He should have taken more care and time with the application form but that was his opinion at the time, that he has never had a mental illness. There is no evidence before the Tribunal that he has had a mental illness. For the last 2 years he has actively engaged with health professionals and has given consideration to the noose incident. There are no current issues with his mental health.

Consideration 1. I have to decide the following factual matters. First, whether [NAME] has a genuine reason for a firearm licence. Secondly, whether [NAME] knowingly provided false or misleading information on the firearms licence. Thirdly, whether sometime in [NAME] had a knife to his wrist with an intent to commit suicide and on 14 July 2021 [NAME] was contemplating taking his life.

2. The first question is straight forward. I am satisfied that the letters of authority, permission to shoot from [NAME] on the 23 and 24 of April 2023 at their land in Moondi and at Attunga is evidence of a genuine reason for possession or using a firearm pursuant to section 12(4) of the Act. These letters were not before the Commissioner at the time the firearm licence was refused but they are before the Tribunal.

3. As to the second question, the Commissioner submitted that [NAME] deliberately answered 'No' as he knew if that if he answered 'yes', it would not reflect well for the firearm application.

4. I accept [NAME]'s evidence was that when he found out that his wife was having an affair in May 2021 he was 'absolutely devastated'. He developed 'horrendous anxiety', he had anxiety attacks, and at his worse had some thoughts of self-harm. In mid-June 2021 he started to make a noose but did not actually make a noose. He then went and told his wife what his thoughts were. 5. [NAME]'s GP referred him to [NAME] a psychologist to help him manage his anxiety and support him to work through the 'devastation'. [NAME] provided a Mental Health Plan stating that he was he was experiencing an adjustment (stress) reaction with anxiety and depressive symptoms.

6. On 14 July 2021, [NAME] told police that he was struggling emotionally with the affair but he did not have suicidal thoughts. He said that he was going through a hard time and feels like 'shit'. He stated that he was getting help and had support from friends and family. I accept this evidence. The police and paramedics were satisfied that there was no direct threat of self-harm. 7. [NAME]'s evidence was that he saw [NAME] throughout 2021 and him and his wife have been consulting with a couples psychologist. They are now closer than ever and have the support of their friends and family. 8. [NAME]'s evidence was that he did not believe 'for one second' that he had a mental illness. He relied on the information in the drop down text menu and [NAME]'s letter of 16 January 2022. He did not believe that his six sessions with [NAME] in 2021 dealt with mental illness.

9. I accept [NAME]'s evidence that he genuinely believed that he did not have a mental illness or that his treatment with [NAME] was not for a mental illness. However the medical evidence is unequivocal that the symptoms of anxiety [NAME] was experiencing in 2021 were considered to be a temporary mental disorder.

10. I consider that [NAME] had a temporary adjustment disorder with anxiety symptoms from May 2021 until December 2021 when [NAME] determined that he did not need any further counselling.

11. This finding is consistent with the evidence of the three health professionals and [NAME]'s evidence that he was experiencing anxiety attacks and had trouble sleeping.

12. Without medical evidence before the Tribunal, it is not prepared to make a factual finding that [NAME] was diagnosed with a specific mental illness at a specific period of time. I do not accept the Commissioner's submission that a Mental Health Plan referral from a GP to a psychologist is a 'medical diagnosis', although I do consider that [NAME] would have had to form a view that [NAME] may well have a mental health disorder and required additional support from an expert which he could not provide.

13. Challenging emotional issues at different times do not necessarily mean that a person has a mental illness. [NAME] carried out a mental health assessment of [NAME] and did not consider that he had a mental illness. [NAME] was not prescribed medicines to treat depression or anxiety. 14. [NAME] provided [NAME] with calming techniques and strategies to manage his anxiety. [NAME] did not consider that [NAME] required any ongoing counselling by the end of 2021. This supports the view that the anxiety [NAME] was suffering from was situational and transitory.

15. The Commissioner objected to the admission of evidence of [NAME] and [NAME] on the basis that they were not available for cross examination but relied on parts of their evidence. There was no submission as to which aspects of the reports were disputed. I accept the Commissioner's submission that the Tribunal should find that s58 documents were not provided to either doctor. [NAME] only saw [NAME] on a single occasion. However I see no reason to give little or no weight to their evidence as it is consistent with the evidence given by [NAME]. [NAME] was not required for cross examination and his evidence was admitted without objection. [NAME] was informed by [NAME] of the suicidal thoughts in June 2021 and the noose incident.

16. I do not accept the Commissioner's submission that [NAME] deliberately misled the Commissioner. I consider that [NAME] answered the question truthfully but failed to take sufficient care to check with his GP or [NAME] prior to answering the question.

17. The third question is whether [NAME] made an attempt at suicide in early July 2021 by placing a knife to his wrist and was contemplating suicide on 14 July 2021.

18. The Commissioner submitted that the Tribunal should make a finding that [NAME] did have and continues to have a mental illness based on the [NAME] call. Reliance was also placed on the words written by [NAME] on the mental health care plan.

19. I accept [NAME]'s evidence that he has not had any thoughts of self-harm since the night in the shed in June 2021. In July 2021, paramedics and the police had the opportunity to observe [NAME] and concluded that he did not pose a risk of self-harm.

20. Truth contains subtle differences in meaning and has many sides. It is mixed with personal perceptions and biases whether conscious or unconscious. As a Tribunal member I have had the benefit of observing [NAME] and [NAME] give evidence and be subjected to strenuous cross examination. [NAME]'s evidence was tinged with a strong desire to support her husband. [NAME] came across as a person who carried the guilt for her husband's inability to have access to a firearm which she knew was very important to him. Her evidence was given with the intent to support her husband in this application. However that does not lead to a conclusion that she was dishonest in her evidence to the Tribunal.

21. I accept [NAME]'s evidence that she called [NAME] because she was concerned about [NAME] and wanted to speak to him. [NAME] may well have believed at the time that [NAME] may take his life, she denies that she did hold this belief, but ultimately it is not her belief that is relevant but [NAME]'s belief and state of mind. I also accept her evidence that she made up the knife incident so that the police would take her pleas to find [NAME] urgently.

Public Interest 1. Section 11(7) of the Act permits a refusal of a firearm license if it is contrary to public interest. Public interest includes the applicant's safety and the whole of the community. In considering public interest, the objects and scope of the Act are amplified; [COMPANY] v [NAME] [1995] IRCA 540; (1995) 131 ALR 657 at 681 and are given paramount consideration [NAME] v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

2. Consistent with s 3(1)(a) of the Act, the applicant's individual interest in obtaining or retaining a firearm licence is subservient to the public's right to safety.

3. In considering the question of public interest, the Tribunal takes into account the interests of public protection, public safety and the proper functioning of the legislative requirements of the firearm scheme. [NAME] v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]; [NAME] v Commissioner of Police [2013] NSWADT 7 at [117].

4. In determining the correct and preferable decision the Tribunal must consider whether, based on all the evidence, [NAME] would pose a risk to public safety if he was granted a firearm licence. [NAME] v Commissioner of Police, NSW Police Service [2004] NSWADT 110: [NAME] v Commissioner of Police, NSW Police Service [2000] NSWADT 28.

5. A real and appreciable risk to public safety must be assessed by considering the material before the Tribunal and any inferences that can reasonably be made. The assessment of the risk occurs though the fact finding process. An applicant's prior conduct is a key consideration, but the analysis of the evidence undertaken by the Tribunal must consider the past conduct in light of all relevant surrounding circumstances: [NAME] v Commissioner of Police, NSW Police Service [2017] NSWADT 97 at [66].

6. In this case the evidence is that [NAME] had access to a firearm at the time of the noose incident. The unchallenged evidence is that [NAME] did not pose any risk to himself or to any member of the public during at this time.

7. In [NAME] v Commissioner of Police, NSW Police Force [2023] NSWCATAD 3, the applicant placed himself on the ledge of a cliff in Sydney. He had consumed 4 Valium tablets and wrote suicide notes. The Tribunal accepted his evidence that this was a last ditch attempt to save a relationship, that he was young and naïve. 4 years later he was charged with possession of a prohibited drug to which he entered a plea of guilty. When the applicant made the application for his firearms licence he answered 'no' to the question on the application relating to any previous attempt of suicide. The Tribunal found that the thought to commit suicide did not lead to a finding that the applicant posed a risk to the safety of the public. The Tribunal found that the applicant did not willingly mislead the Commissioner by his answer to the question on the application for the firearm licence and that he had a reasonable and accurate view that his conduct did not constitute an attempt of suicide.

8. In [NAME] v Commissioner of Police, NSW Police Force [2020] NSWCATAD 87 [72] – [75], the Tribunal found that the applicant posed no risk to himself or to the safety of the public. [NAME] suffered from longstanding and treatment resistant Major Depressive Disorder, had a history of alcohol abuse and was admitted to hospital on three occasions with suicidal ideation.

9. In [NAME] v Commissioner of Police, NSW Police Force [2022] NSWCATAD 111, the applicant did not disclose that he had a mental illness in the firearm application. He did not believe that he had an illness or that he was receiving treatment for the illness even though he was receiving treatment from medical professionals.

10. Based on the material before the Tribunal and the applicable law, the Tribunal finds that there is no real and appreciable risk to the public or [NAME] if he is issued with a firearms licence for the following reasons. First the feeling of anxiety from late May 2021 to late 2021 was caused as a response to finding out that his wife was having an affair.

11. Secondly, the noose incident in May/June 2021 was a one off 'cry for help' situation. Immediately following this incident [NAME] informed his wife as to what occurred and sought medical assistance.

12. Thirdly, [NAME] received counselling from [NAME] throughout 2021. [NAME] did not believe that [NAME] required any further counselling after this time.

13. Fourthly, I accept [NAME]'s evidence that he had a belief that he did not have a mental illness within the meaning of s4 the Mental Health Act 2007. Mental illness is a condition that 'seriously impairs the mental functioning of a person' which must be a 'serious disorder of thought form' or a 'severe disturbance of mood' or 'sustained or repeated irrational behaviour'.

14. It is a serious proposition to label a person with a mental illness and the Tribunal should not do so lightly. Making a finding that a person has a mental illness may have serious long lasting consequences and should be based on medical evidence. I do not consider that situational short term stress or anxiety is necessarily a mental illness within the meaning of s4 of the Mental Health Act. All persons experience some levels of stress and anxiety in their lives which varies over time. I do not consider the fact that a Mental Health Care Plan was made by a GP to be a diagnosis of mental illness.

15. Fifthly, I find that there is evidence before the Tribunal, that was not before the Commissioner, that [NAME] does have a genuine reason for the firearms licence.

16. It follows from these findings that I reject the Commissioner's submission that [NAME] had attempted suicide by placing a knife to his wrist or was contemplating suicide on 14 July 2021 as I accept [NAME]'s and [NAME]'s evidence given in the Tribunal.

17. I also reject the Commissioner's submission that [NAME] deliberately filled in the firearm form incorrectly so as to mislead the Commissioner because he knew that it would adversely impact on his application.

18. I found [NAME] to be an honest witness and I accept that he genuinely believed that he did not have a mental illness and was not receiving treatment for a mental illness in 2021.

19. The Tribunal makes the following order:

1. The decision of the Commissioner of Police NSW made on 4 May 2022 to refuse the firearms licence held by the applicant is 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: 23 August 2023