Coxhead v Commissioner of Police [2022] NSWCATAD 231

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Coxhead v Commissioner of Police [2022] NSWCATAD 231 Hearing dates: 4 July 2022 Date of orders: 12 July 2022 Decision date: 12 July 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: Emeritus Prof G D Walker, Senior Member Decision: 1. Decision under review set aside. 2. A category AB firearms licence is to be reissued to the applicant. Catchwords: LICENSING – firearms – licence revocation – public interest – suicidal ideation. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW) Cases Cited: AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5; Briginshaw v Briginshaw (1938) 60 CLR 316; Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42; Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADT AP 16; Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218; Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117; Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 McDonald v Director-General, Social Security [1984] FCA 57, (1984) 1 FCR 354; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10; Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Category: Principal judgment Parties: Stephen John Coxhead (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Applicant (Self-represented) Lindsay Taylor Lawyers (Respondent) File Number(s): 2022/00072699

Reasons for decision 1. The applicant Mr Stephen John Coxhead applied to this tribunal on 11 March 2022 for review of a decision by the respondent Commissioner taken on 22 February 2022 to revoke his category AB firearms licence pursuant to the Firearms Act and the Firearms Regulation. 2. The applicant had held continuous authority for firearms from 1990, initially under the previous legislation, and then under the Firearms Act from 15 January 1999. His licence was reissued a number of times subsequently. The licence in question had been issued on 12 November 2017, to expire on 12 November 2022. On 12 March 2020 an incident occurred following some discussions about a divorce settlement resulting from a marriage breakdown which led to his self-admitting to Tamworth Base Hospital's mental health ward, as he had been experiencing depression and self-harm ideation and preparations. 3. On 30 April 2020 the applicant's firearms licence was suspended and on 12 May the Firearms Registry sent him a request for a report by a mental health professional to determine his suitability to remain licensed for firearms. When no report was forthcoming, his licence was revoked on 24 November 2020 on public interest grounds. 4. The stated reasons for revocation were that the applicant had been voluntarily admitted to the Banksia Mental Health Unit at Tamworth Hospital after experiencing suicidal ideation and depression, that there was no expert advice before the Commissioner to assist in determining the applicant's suitability to possess and use firearms, and therefore that the Commissioner could not be satisfied that the applicant could exercise continuous and responsible control over firearms 5. The applicant requested an internal review on 11 December 2020. The reviewing officer affirmed the revocation decision on 22 February 2022 on public interest grounds on the basis of concerns that his psychological state was such as to create a risk to public safety if he were to retain possession of firearms. The applicant applied to this tribunal on 11 March 2022 and the matter came on for AVL hearing on 4 July 2022.

Applicable legislation 1. Section 24(2) of the Firearms Act sets out a number of grounds on which a firearms licence may be revoked, including s 24(2)(d), which provides that a licence may be revoked "for any other reason prescribed by the regulations". It is a discretionary power. 2. Clause 20 of the Firearms Regulation 2017 provides that "The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence". 3. The issue in this application is thus whether it would be contrary to the public interest for the applicant to continue to hold a firearms licence.

The evidence 1. The respondent did not call any oral evidence, but relied on documentary material, including the s 58 documents (exhibit R1), and on cross-examination of the applicant.

Mr Stephen Coxhead, applicant 1. The applicant tendered a written statement (exhibit A1) consisting of representations of fact and material in the nature of submissions. The following is a summary of the statements of fact in the document. The statement begins by referring to a report made to police on 10 July 2019 concerning his deteriorating relationship with his then wife. No further reports had been made to police to raise concerns regarding his domestic circumstances. 2. The applicant stated that the report appeared to have been made at the behest of his ex-wife's then boyfriend who at the time was a serving member of the New South Wales Police Force posted at the station where the report was made. When asked by police, his ex-wife "was unable to specify the times/dates and the nature of the alleged threats". No AVO was sought for the incident. The report stated that there was no documented domestic violence history and suggested that "it is possible that the victim was trying to use police to hasten the removal of the PN from the family home". 3. The information indicating that he did not have access to where his firearms were stored was false. Because of false allegations made by his former wife in the initial stages of divorce proceedings, he had moved his firearms from the safe at the property where he was living to the safe at his parents' farm. His father was licensed for firearms. It was only after the applicant had self-admitted to Banksia mental health ward at Tamworth Hospital that his father had moved the key to the safe and the applicant no longer had access, nor did he seek it. 4. He received a letter from the Firearms Registry requesting that he undertake testing, but he misunderstood the letter and took it to mean that if he wanted to challenge his licence suspension, he needed to comply with the request. He did not, however, wish to challenge the suspension, believing that a licence suspension was warranted, although a revocation was not. 5. He had one face-to-face interview with Dr Amanda Jeffrey, which lasted for approximately two hours, but there were also several telephone conversations, emails and texts. His treating general practitioner, Dr Armanno, of whom he had been a patient since 1986 until his retirement in late 2021, was supportive of his retaining his licence. He feels that there was no proper investigation into his matter. All health care opinions and reports were favourable to his retaining his licence. 6. In oral evidence at the hearing the applicant reiterated those points and explained that at the time of his marriage breakup, his mental health was normal, as it appeared that there was a possibility of that he and his wife would be reconciled. The breakdown came when in the course of a telephone conversation about possible reconciliation, his ex-wife indicated that she would use the influence of her policeman boyfriend to deny the applicant access to his children. It was not the breakup itself that caused his depression. 7. He is now making very good progress, and has been in a sound relationship over a period of 12 months with his new partner. They planned to build a house and he has a healthy relationship with his children. He has half custody of his son aged 16, and his daughter aged 18 is currently taking a gap year in England. 8. In cross-examination the applicant said that Dr Armanno had retired at the end of 2021, but that thereafter he had continued to attend the same medical practice, where he was under the care of Dr John Fraser, whom he last saw late in 2021 for a general checkup. Dr Armanno had advised him that he could stop taking mirtazapine (which is for mental health) and circadin in about June 2021, which he did. 9. He had seen Dr Jeffrey only for the purposes of the report and had not seen her since. He had spoken with her for 2 hours, during which she took his history and administered psychological tests which took about ¾ of an hour. Thus he had been talking to her for 1½ hours. They had not discussed the answers he had given to the test questionnaires, but rather the circumstances of the breakdown. At Tamworth Hospital he had seen Dr Evans. 10. In the week before the incident on Thursday 12 March 2020 he had some telephone discussions with his ex-wife, and told her that he had changed his work schedule so that he could take her to dinner on her birthday, but she made it clear she was only interested in obtaining more money from him. 11. He had a friend who was suffering from leukaemia, and it had been his practice to mow the friend's lawn for him, which he then did. He transferred $11,000 to his father and drafted some texts to his children saying that he loved them and was proud of them (exhibit R2, p 57). The texts said nothing about suicide. In the event he did not send the texts, nor did he write to anyone else, in fact he did not know who he would have written to, except perhaps his ex-wife. 12. He took a shotgun and some ammunition and drove to a farm where they had enjoyed having picnics, with the intention of committing suicide. He had not called her to ask her to arrange for an ambulance to collect his body as had been alleged, but with a view to reconciliation. But she had said what her intention was. Her boyfriend was taking her out to dinner and she phoned him to ask him to wait. She telephoned his father to ask him to meet the applicant and kept him on the line to give his father time to join him. It had been his intention to call an ambulance before the deed himself. His father and ex-wife had taken him to Tamworth Hospital. 13. He had entertained suicidal thoughts only for a few days, not for months. A telephone conversation with his ex-wife on the Sunday [8 March] had not proved productive and by the Tuesday [10 March] he had begun feeling suicidal. He stressed that he had not been suicidal for a period of months, and that he had not said that he had been. He had, however, suffered from some PTSD in 2019 as a result of being a first responder assisting the victim of a serious workplace accident at Ballandean, Qld. whose arm had been ripped off by a piece of machinery. He received no treatment following that experience, apart from a telephone call from the Queensland police the following day, and simply drove on. 14. Referred to a passage in the Tamworth Hospital medical records, he agreed that the note "During admission, it was evident that Stephen had strong feelings associated with his wife and the marriage breakdown, stating that "he could not see a life without her" was correct. He had been admitted to Tamworth Hospital on 12 March 2020, and then had been referred to Lakeside Clinic at Warners Bay Private Hospital as he realized that he needed more counselling, where he had remained for about 32 days, until 22 April. 15. The team at Warners Bay suggested that a management plan be worked out with his parents and he was referred to Mr Peter Gurran for psychological assessment and intervention. Dr Armanno had received a report from Mr Gurran (exhibit R2, pp 13 – 14). That was his last mental health intervention, although he had regular appointments with Dr Armanno, who had set up the mental health plan. His last prescription for mirtazapine had been issued on 30 September 2020 (id., p 7). Dr Armanno had referred him to Amanda Craig for a report stating that he was fit to hold a gun licence on 2 March 2021 (id. p 8). When he had spoken to Dr Jeffreys he had told her that he had seen Mr Gurran, but could not recall the specifics. 16. In re-examination the applicant said he had not experienced suicidal thoughts over a period of months. He had been suffering from clinical depression. But had no mental health problems before or since. All his medical reports had been favourable. 17. The applicant also tendered a letter from his father, Mr Ian Coxhead who operates the family farming and grazing properties in the Tamworth district (exhibit A2) and a letter of support from a member of Federal Parliament, the Hon. Barnaby Joyce MHR. The contents of those letters will be outlined later in these reasons.

Respondent's submissions 1. The respondent relied on written submissions (part exhibit R2) which, after setting out the background to the case and the applicable law, pointed out that the tribunal had before it the letter of instruction from Dr Armanno to Dr Jeffreys, the discharge summary from Warners Bay Private Hospital dated 22 April 2020, and triage notes from Tamworth Hospital that set out the circumstances in more detail. 2. The discharge summary that appeared to have been sent to Dr Jeffreys stated that the applicant had been referred to the Lakeside Clinic by the mental health team from Tamworth Hospital after he presented there with "ongoing suicidal ideation for a few months post breakup relationship with his wife and distress being witness to a serious workplace accident. He called his wife to advise her that he intended to suicide with a shotgun. His wife and father brought him to the hospital". 3. The triage notes from Tamworth Hospital painted the most detailed picture of the circumstances, including "[The Applicant] presented voluntarily to Banksia due to ongoing suicidal ideation for the past few months following the breakup with his wife and being a first responder to a traumatic workplace accident. He was brought in by wife and father after attempting to commit suicide with a shotgun at their favourite place….Stephen attempted to commit suicide on 12/2/2020 – ex-wife's birthday. Well thought out plan – wrote a letter to children, parents and friends, mowed unwell friend's lawn, transferred money ($11,000) to father's account, then took shotgun to old farm, called ex-wife to call ambulance to collect his body – she kept him on the phone until his parents got there. Has had ongoing suicidal ideation since marriage breakup about a year ago…. During admission it was evident that Stephen has strong feelings associated with his wife and the marriage breakdown, stating that 'he could not see a life without her…" 4. The review on discharge by Dr Stone or 23 March 2020 painted a more positive picture of the applicant, but recommended that the applicant be required to have a further three week stay at Lakeside for "further management". 5. Following his discharge from Lakeside, the future management plan indicated that he had an appointment with his GP to obtain a referral for a psychologist and psychiatrist. There was no evidence either in the report of Dr Jeffreys or the medical records as to whether he received further treatment after discharge from the private hospital. Dr Jeffreys does state that at the time of the report he was not receiving any treatment. 6. It appeared that the opinion of Dr Jeffreys was based on the one meeting with the applicant and the review of the documents that were referred to in the report. There was a question whether Dr Jeffreys had in fact been aware of the full circumstances of the incident as stated in the Tamworth Hospital materials and whether the applicant had attended and received other treatment from a psychiatrist or psychologist from the date of discharge from the private hospital to date. 7. Further, the report from Dr Jeffreys was now over 12 months old and without further evidence from her it would be difficult to know if that report could be relied on to provide current evidence of the applicant's mental state. It was unknown whether the applicant still has suicidal ideations and, if so, whether and how he is now being treated. Without knowing the current status of the applicant's suicidal ideations and treatment (if any), his keeping the licence would create a real, appreciable risk to public safety and would be contrary to the public interest. Without more detailed evidence from Dr Jeffreys about the matters she considered and the current health of the applicant, the tribunal could not be satisfied that it is in the public interest for the applicant to continue to hold a licence. 8. In oral submissions at the hearing, the respondent reiterated those submissions and noted that there was no issue as to the applicant's being a fit and proper person to hold a licence. The concern arose from the incident set out in exhibit R1, in which the applicant's preparations were exceptionally close to suicide. The internal review decision had raised certain concerns about Dr Jeffreys's report: * It provided responses to the Firearms Registry Risk Assessment but no information about the applicant's responses to questions about suicidal ideation; * Police records indicated that his firearms were surrendered on 13 March 2020 after he had self-admitted to Tamworth Hospital, but the report does not address that admission but refers to a discharge summary from Warners Bay Private Hospital dated 22 February 2020; * The Firearms Registry was not provided with any discharge summary, and it appeared that the applicant might have had two separate admissions, the first in the month preceding the surrender of his firearms. Further information concerning his admissions or length of time in hospital was not held; * The applicant's GP was supportive of his firearms licence being reinstated but it was unknown how long his GP had been treating him. 1. Dr Jeffreys saw the applicant on only one occasion and had a number of documents, including Dr Armanno's referral (exhibit R2, pp 34 – 35) and the discharge summary by Dr Peter Corrigan of Lakeside Clinic at Warners Bay Private Hospital dated 22 April 2020 (id., 33). 2. The respondent had wished to cross-examine Dr Jeffreys as her assessment did not reflect the hospital records (id., 57), but the applicant had declined to arrange for her to be available. The respondent had been unaware of the full circumstances of the case before receiving the medical records, having at that stage only the record from Kootingal Medical Centre (id. pp 7ff). 3. The psychologist report by Mr Gurran (id., 13 – 14) used language that was unusual in a document of this nature and it was not clear why it was in the report. It appeared to be dealing more with the applicant's ex-wife. It was unclear how much information Dr Jeffreys had, and in any case the report was now 12 months old. There was no recent material to give comfort that the applicant presented virtually no risk to public safety. It was also material that he had prepared to commit suicide with a firearm.

Consideration

Approach 1. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. 2. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). An internal review was applied for and duly determined (ADR Act s 55(3)). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357. 3. Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind. 4. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction. 5. It is not suggested that the applicant is not a fit and proper person to hold a firearms licence. The respondent argues for licence revocation on the ground that it is not in the public interest for the applicant to hold a licence, within the meaning of s 24(2)(d) and cl 20.

Public interest 1. The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16. 2. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety. 3. As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration. 4. Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] – [66] 66]. 5. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74]. 6. The trigger for the revocation of the applicant's firearms licence was the incident on 12 March 2020 when he was brought to Tamworth Hospital by his father and estranged wife and self-admitted to the Banksia Mental Health unit following his making of preparations for suicide by gunshot and his informing his wife of his intention. He was diagnosed with major depressive disorder and treated at Tamworth Hospital, and subsequently at the Lakeside Clinic at Warners Bay Private Hospital, where he was an in-patient for 32 days, being discharged on 22 April 2020 (exhibit R2, pp 45 – 48). 7. His licence was suspended and he was asked by the Firearms Registry on 12 May 2020 to provide a risk assessment completed by a psychiatrist or psychologist (exhibit R1, pp12 – 18). He misunderstood the content of the letter, however, believing that it was asking for an assessment if he wished to contest the licence suspension. He did not wish to do so, however, as he believed a suspension was justified in the circumstances, although not a revocation. When the Firearms Registry had not received a risk assessment report, however, it proceeded to revoke his firearms licence on 24 November 2020. 8. The applicant's GP, Dr Armanno, referred him to a clinical psychologist, Mr Peter Gurran, for psychological assessment and intervention in regard to reactive depression/adjustment disorder. He had two appointments with Mr Gurran after his discharge from Warners Bay Private Hospital, on 1 May 2020 and 29 June 2020, with follow-up sessions planned as he saw fit. 9. Mr Gurran's report dated 30 June 2020 (exhibit R2, pp 13 – 14) stated that "despite the relative seriousness of the circumstances of referral, I had no concerns since that we might see a repeat. There were a number of influences at play then, including deceit, gullibility and failure, on which he is now able to draw a more clinical perspective. Since he has no record of mental instability, (no other presentations to ED or past admissions, even taking meds), it seems somewhat disingenuous, possibly vexatious, that the person seemingly most responsible for causing his depression is the very one now claiming to want to protect her chn [children] from his alleged vulnerability or 'instability….'" The report continues with sharp criticism of the ex-wife's conduct. The respondent was critical of the tone of the report, contending that it rendered the report of little value. Whether such criticism in a report destroys its evidentiary value is a question for professional psychological expertise, of which there is none on that point. The main point is that the substance of Mr Gurran's assessment is consistent with that of the other mental health professionals. 10. Subsequently, on 2 March 2021, Dr Armanno referred the applicant to Dr Amanda Jeffreys (Amanda Craig) (exhibit R2, pp 34 – 35, 39 – 40) in connexion with his licence revocation, which "related back to him having threatened suicide 12/12 ago…. Since that time he has been quite well. He has seen a psychiatrist and remains on mirtazapine 45 mg. Are you able to see him and provide a report?" 11. Dr Jeffreys's report dated 1 April 2021 (exhibit R1, pp 28 – 31) states that she was supplied with the referral letter from Dr Armanno referred to above, the notice of licence revocation, the discharge summary from Warners Bay Private Hospital written by Dr Peter Corrigan and dated 22 February 2020 (scil. 22 April 2020), and a Firearms Registry right of review fact sheet. It explains that he was admitted to hospital with major depressive disorder following significant life events, the breakdown of his marriage, being a first responder in a serious workplace accident and being admitted to hospital following his expression of "suicidal ideation and advising his wife of intent". 12. The report noted that he "responded well to inpatient admission" and attended both individual and group psychotherapy. Mr Coxhead was also at the time medicated with mirtazapine 60 mg, which has since been reduced to 45 mg". He had not, however, at that time been in treatment in relation to the 2020 incident. Dr Jeffreys's assessment was that the impairment resulting from the March 2020 incident "no longer has any relevance to his current functioning and therefore has no relevance on his ability to possess or use firearms. Mr Coxhead is medication compliant and is on a maintenance dosage currently. The prescribed medication does not impact on Mr Coxhead's ability to work, nor alter his ability to manage firearm safely". 13. Dr Jeffreys wrote that the applicant was active with his family unit and children, and within the community and as a volunteer member of the Moore Creek Rural Fire service. There was no current risk impacting his responsible use of firearms. There was no prior history of any other issues or conditions other than this single event relevant to his maintaining responsible use of firearms. There was no indication of relapse evident. After noting his good cognitive capability, Dr Jeffreys concludes that he is well capable of exercising rational judgment as would be expected of a holder of a firearms licence. "There is no impairment in Mr Coxhead's functioning nor is there an evident risk to himself or other members of the public through his obtainment of his firearms licence". 14. The respondent was critical of Dr Jeffreys's report, and indeed that criticism formed a major part of the Commissioner's case. First, because the applicant had only one (two-hour) consultation, including the administering of the psychological tests. That does not appear to be an unusual arrangement in this class of case, but if it is argued that it was inadequate, there would have to be expert evidence to that effect. It may also be noted that Dr Jeffreys is highly qualified in this area. 15. Secondly, the respondent contends that Dr Jeffreys should have been in possession of the Tamworth Hospital records, including the notes of the triage nurse (exhibit R2, pp 57 – 65), which gave a more comprehensive picture of the applicant's background and condition. There is undoubtedly more detail about the course of events contained in those records, but it is important to note that there is no obvious inconsistency in any material particular between those materials and the documents that were briefed to Dr Jeffreys. The seriousness of the applicant's condition is apparent in both accounts. If the lesser amount of detail had clinical significance, that also would have to be the subject of expert evidence. 16. Thirdly, the respondent submitted that the report had limited value because it was now over 12 months old, and there was no evidence that the applicant had received any treatment since then or any assessment of his current mental health condition. 17. While Dr Jeffreys does note that the applicant was not at that time in treatment in relation to the incident of 2020, she also notes that he was at the time being medicated with 45 mg of mirtazapine, a psychotropic drug, which had been reduced from 60 mg. After seeing Dr Jeffreys, the applicant remained under the care of Dr Armanno, of the Kootingal Medical Centre, who had been his GP since 1986. In about June 2021, Dr Armanno advised the applicant that he could discontinue taking mirtazapine and circadin. 18. The respondent had asked the applicant to arrange for Dr Jeffreys to be available for cross-examination on her evidence. This the applicant declined to do, saying that it was unreasonable to expect a busy health care specialist to be available on two days' notice. No summons was applied for to secure Dr Jeffreys's availability. 19. After Dr Armanno retired in late 2021, the applicant came under the care of Dr John Fraser, also of Kootingal Medical Centre, who supplied a letter dated 20 April 2022 (exhibit A4) stating that the practice's computerised records showed that the applicant had been attending the practice since 2005, and the applicant's unchallenged evidence was that he had been a patient of the practice since before the records were computerized, since 1986. 20. Thus, although the applicant has not received any treatment or evaluation from a mental health specialist since April 2021, he has been under regular medical supervision throughout that period, and until late 2021 by Dr Armanno, who had been seeing him for some 15 years and was familiar with his condition and circumstances. If there had been any signs of a relapse or of other mental disturbances, one would expect that Dr Armanno, or later Dr Fraser, would have taken appropriate action. 21. Again, when he was admitted to the Tamworth Hospital Emergency Department on 17 February 2021 in connexion with an intestinal problem, the resident medical officer noted that he had suffered from depression and attempted suicide 12 months previously, and was at that time still taking mirtazapine, but there is no mention in his discharge referral of any current mental health problem (exhibit R2, pp 36 – 38). 22. The respondent also raised a question about why there had been two, not one, hospital admissions for the applicant at the relevant time. The records clarify the reason. Dr Stone's discharge review (exhibit R2, p 58) noted that he appeared "much improved following in ward admission, SW input, and psychiatrist/psychologist input. Steven also realises that his care will be an ongoing process and that he will require at least 3 weeks admission at Lakeside clinic for further management". 23. The applicant was accordingly transferred from Tamworth Hospital on 23 March 2020 and admitted to Lakeside Clinic at Warners Bay Private Hospital on 24th March. Dr Corrigan of Lakeside Clinic in his discharge summary dated 2 April 2020 reports that "Mr Coxhead was referred to Lakeside Clinic by the Mental Health Team from Tamworth Hospital" where he had been diagnosed with a major depressive disorder. The admissions to the two hospitals thus arose from the same incident. 24. As the applicant pointed out, all the reports from mental health professionals are favourable to him. Two of them specifically support him as being fully able to possess and use firearms without prejudice to public safety. Thus: * Dr Stone, 23 March 2020: "Steven appears very future oriented…. Stephen appears much improved following in ward admission…. During review there were no features of melancholic depression, no acute risk identified that would prevent t/f to private facility" (exhibit R2, p 58). * Dr Peter Corrigan, 22 April 2020: "He responded well to inpatient admission with both individual and group psychotherapy and mirtazapine 60 mg with the addition of melatonin for insomnia. At the time of discharge, he was noted to be euthymic with positive plans for the future…. He was future oriented without suicidal ideation" (exhibit R2, p 33). * Mr Peter Gurran, 30 June 2020: "I have no concerns that we might see a repeat" (exhibit R2, p 13). * Dr V G Armanno, 2 March 2021, referral letter to Dr Jeffreys: "The problem is that he has a shooter's licence which will be cancelled unless he gets a report from a psychologist stating that he is OK…. Since [the time of the incident in March 2020] he has been quite well. He has seen a psychologist and remains on mirtazapine 45 mg…. Are you able to see him and provide a report?" (exhibit R2, pp 34 – 35). * Dr Amanda Jeffreys, 1 April 2021: "This impairment no longer has any relevance to his current functioning and therefore has no relevance on his ability to possess or use firearms…. The prescribed medication does not impact on Mr Coxhead's ability to work, nor alter his ability to manage firearm safely…. There is no indication of relapse evident…. There is no impairment in Mr Coxhead's functioning nor is there an evident risk to himself or other members of the public through his obtainment of his firearms licence" (exhibit R1, pp 28 – 30). 1. Mr Ian Coxhead, the applicant's father, submitted a letter dated 16 May 2022 (exhibit A2). He explains that his family partnership owns and operates eight cropping and grazing properties in the Tamworth district. He strongly supports Steven's efforts to have his firearms licence reinstated. He will be returning to full employment in their farming enterprise in November this year and part of his duties will include the control of feral pests, such as wild pigs, goats, foxes and rabbits on all of their properties. When necessary, he would be required humanely to dispose of injured or sick livestock. To effectively and efficiently operate their enterprise, it was essential that Stephen has his firearms licence reinstated. 2. There is also a letter dated 26 May 2022 from a prominent member of Federal Parliament, the Hon. Barnaby Joyce MHR, member for New England. Mr Joyce expressed support for the applicant's having his firearms licence reinstated. He has known the applicant for close to 9 years in a professional and personal capacity. Mr Joyce believes he is a model citizen and one of exemplary character he had served his country in the Defence Force and is a member of the Rural Fire Service. 3. He is a devoted father to his two children and has always been very responsible and sensible he has always held employment, due to his incredible work ethic, often driving trucks away during the week and helping his parents on their property on weekends. Mr Joyce concluded by saying that there are not many people whom he holds in such high regard as he does Stephen (exhibit A3). Neither referee was required for cross-examination. 4. The applicant is a man aged 50 who lives at Nemingha (near Tamworth). He works as a long-distance truck driver and as a farmer on the family properties. A former military man, he has served full-time and part-time in the armoured corps. He has no criminal history and for the past 12 months has been in a stable relationship with a new partner following the dissolution of his marriage. He is on good terms with his two children, aged 16 and 18 respectively. 5. His firearms licence was suspended and later revoked following the incident on 12 March 2020 when he threatened, and made preparations for, suicide following two disheartening discussions he had with his then wife in an attempt to affect a reconciliation. His wife had left him in January 2019 but the relationship was rekindled and the parties continued to live together. They then separated again on 24 June 2019, although they remained living together. 6. The central concern of public interest in the context of firearms licensing is public safety (which of course includes the safety of licensees themselves). The incident on 12 March 2020 was a serious one and raised grave questions about his suitability to continue to hold a firearms licence, not least because it involved the intended use of a firearm. He was admitted to the Banksia Mental Health Clinic at Tamworth Hospital the same day and remained there until 24 March 2020, when he was transferred to Lakeside mental health clinic at Warners Bay Private Hospital, where he received treatment until 22 April 2020. From the outset he responded very well to treatment and by the time he was discharged he had fully recovered, subject to some ongoing medication until about June 2021. Dr Corrigan noted that "He was future orientated without suicidal ideation" (exhibit R2, p 33).

Conclusion 1. Hennessy DP said in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [22], that "Not every suicide attempt will justify the revocation of the person's firearms licence. The Tribunal must assess the likelihood that AML will attempt suicide or self-harm again and, if that happens, the likelihood that a firearm will be used. There is no suggestion that AML would attempt to harm others". While the applicant's preparations in March 2020 did involve the proposed use of a firearm, the incident resulted from a particular crisis in his life and no other episode of suicidal ideation had previously occurred, or has occurred since then. Nor is there any suggestion that the applicant might attempt to harm others. 2. None of the mental health professionals who evaluated him thought there was any danger of relapse or repetition. He has been under ongoing medical care for other matters since then, and there have been no reported signs of concerning mental clinical symptoms, nor have there been any adverse reports of any other kind. 3. In Webb, Montgomery JM stated that in determining the issue of public safety it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances: "Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". In this case any risk to public safety falls into the "minimal, fanciful or theoretical" category and can be excluded from consideration. 4. The applicant has had several decades of involvement with firearms, including in the army, and has had no contraventions of safety protocols other than the incident of 12 March 2020, which on the evidence professional care has enabled him successfully to put behind him. It is also relevant that he works as a farmer on the family properties. Subject to the overriding importance of public safety, there is a public interest in law-abiding farmers and graziers having access to long arms for the protection of the environment and of primary industry. 5. I therefore conclude that the totality of the evidence warrants the exercise of the s 24(2) discretion in the applicant's favour and that the decision under review should be set aside and the applicant's licence restored.

Orders 1. Decision under review set aside. 2. A category AB firearms licence is to be reissued to the applicant.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2022