Ayers v Commissioner of Police

[2021] NSWCATAD 78

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Ayers v Commissioner of Police [2021] NSWCATAD 78

Hearing dates:

15 March 2021

Date of orders:

26 March 2021

Decision date:

26 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

The decision under review is set aside

Catchwords:

LICENSING – firearms – mental health issues – public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

Allan v The Commissioner of Police [2008] NSWADT 230

AMJ v Commissioner of Police NSW Police Force [2012] NSWADT 228

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5

Aubrey v Commissioner of Police [2005] NSWADT 266

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89

Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117

McDonald v Director General of Social Security (1984) 1FCR 353

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137

Ros v Commissioner of Police, NSW Police Force [2019] NSWCATAD 235

Shi v Migration Agents Registration Authority [2008] HCA 31.

Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

Category:

Principal judgment

Parties:

Jarred Ayres (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Hartmann & Associates (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2020/00342992

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. By an application dated 3 December 2020, the Applicant, Jarred Ayers seeks review of a decision of the Respondent dated 19 August 2020 to refuse his application for a Category AB firearms licence under s 11(7) of the Firearms Act 1996 (the Act).

Relevant law

2. The underlying principles of the Act are set out at s 3, which include relevantly:

1. to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and

2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.

3. Section 11(7) of the Act provides that the Respondent may refuse to issue a licence if the Respondent considers that issue of the licence would be contrary to the public interest.

Role of the Tribunal

4. Section 63 of the Administrative Decisions Review Act 1997 (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. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]- [34]. Under s 28(2) of 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. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shiv Migration Agents Registration Authority [2008] HCA 31.

Evidence

5. The Respondent provided documents under the s 58 of the ADR Act.

6. The Applicant filed a statement dated 12 February 2021, gave evidence, and was cross examined. The Applicant provided a reference from Peter Jirgens dated 14 February 2021. I had before me a further report from the Applicant’s treating psychiatrist, Dr Charles Austin-Woods, dated 15 February 2021, and the doctor gave evidence and was cross examined.

Applicant’s evidence

7. The Applicant said he has had a firearms licence since he was aged 15 or 16 when he lived on the family’s farm in South Australia. He moved to Victoria in 2007 and “transferred” his licence there. Now that he lives in NSW, he is seeking a firearms licence in this State. His interest is in vermin control, and he seeks to continue as a volunteer in vermin control, but to be able to offer shooting as a means of undertaking that.

8. The Applicant said he had a serious workplace injury in 2016 or 2017 in which he broke his ankle in two places. Surgery was required, and more is planned. His workers compensation claim has been very protracted and is still “going through the court”.

9. He was referred in cross-examination to the Police report that he had threatened self-harm on 27 September 2017. He agreed he had told Police that he was being worn down by dealing with the workers compensation insurance companies, including being “stalked” by private investigators. He agreed he had told his workers compensation case manager that he was going to get a will kit to “sort out his property” and had become angry with the case manager and refused to answer further calls.

10. When Police attended to undertake a welfare check, he expressed frustration at the compensation system and being harassed by investigators. He did not express to Police the desire to self-harm. An ambulance was called but he was assessed as not requiring any further attention. He said in his evidence that the exchange with the case manager had resulted in some improved service and, in fact, a change of case manager. He agreed with his psychiatrist’s view that what he had said was his “way of seeking help”. He said there was “no way” he would repeat his conduct, even though it had been very effective in obtaining help; it has “caused [him] a lot of grief”. While his workers compensation claim is ongoing, he is now more accepting of the protracted process as it is “out of [his] hands”.

11. He agreed that he had a history of drinking heavily. He has recently been diagnosed with a liver condition, he said, so since about 3 months ago has virtually given up drinking – having only a couple of drinks with mates on the weekend. He did not know why his psychiatrist had not referred to the condition in his reports.

12. He was referred to Mr Jirgens’ reference which referred to the Applicant being interviewed in relation to baits that were said to have been improperly place resulting in the death of a dog. He said he was exonerated.

References

13. Steven Howson provided a reference dated 28 July 2019 in which he wrote that the Applicant has been managing aspects of his beef cattle operation and he had found him to be conscientious and reliable and that he had conducted himself with professionalism and he was particularly safety-minded. Similarly, Mr Jirgens, who has known the Applicant since November 2018, has found him enthusiastic, reliable and trustworthy in all aspects of his work as a volunteer fox baiter. He was aware the Applicant had been asked to undertake fox shooting and deer control on a property should he attain his licence.

Evidence of Dr Austin-Woods, consultant psychiatrist

14. Dr Austin-Woods has been treating the Applicant since 1 April 2019, when he came into his care through his workers compensation claim. He has seen him close to 20 times, and has appointments scheduled for the rest of the year. In connection with the Applicant’s firearms’ application, he was asked to complete a Risk Assessment Questionnaire (Assessment). He produced several versions of the assessment from the time he commenced treating the Applicant, the most recent of which was dated 21 February 2021. He said in his evidence that he was initially reluctant to reach conclusions and considered that in the early versions he was “quite circumspect”. Now, after treating the Applicant for 2 years, he can be quite clear in his views.

15. He wrote that the Applicant had been diagnosed with chronic pain (as result of his workplace injury), depression, and ADHD. As to how these conditions would affect the Applicant’s fitness to possess and use firearms, he wrote that, if untreated, his depression could cause low mood and impair his judgment and his ADHD could cause impulsivity.

16. He wrote that the Applicant has been prescribed Endone 2 5mg BD PRN, Ramipril 10mg daily Ibuprofen 400mg PRN, Dexamfetamine 10mg mane 10mg midi. Endone can minimally impact alertness, but the Applicant is not taking it regularly. He has a good understanding of the impact of the medication on his body and consciousness. The Applicant, he said, has been “100% compliant” with treatment, has attended appointments and generally been prosocial in his activities of daily living.

17. The doctor said that at every appointment he conducts both formal and informal mental status examinations. As part of routine screening he has performed the DASS-21 and the Applicant scored normal in depression, anxiety, and stress. The doctor also administered the AISRAP Australian Institute for suicide research and prevention protocol (Suicidal Risk Assessment) and found that the Applicant did not present with any suicidal ideation. The doctor does not rely on these tests exclusively, especially as he has now been testing and treating the Applicant for nearly 2 years. He has found the Applicant to be consistent, open, and honest at every session. He has been calm and cooperative during his interactions with the doctor.

18. The doctor had discussed with the Applicant “many times” the events of 27 September 2017. The Applicant denied ever being actively suicidal; the only time he mentioned anything related to self-harm was as outlined in the COPS event of 27 September 2017. The Applicant recounted the story to the doctor as:

Yes, I did say that I’II go and get my will kit and you get the rest sorted out. I threw my phone in the fridge and sat on the porch with a few beers. They came and I just said ‘I’ve had a gut full of it all'”.

19. The Applicant told him he had felt unsupported by the company for which he was working and his WorkCover case manager. It was a way of saying "if this isn't sorted out, I'll die" and was, in a way, a veiled threat of suicide. The Applicant knew the outcome would be a welfare check. He also knew that there would be changes by WorkCover. It was a way of seeking help, or trying to change the way he was treated by WorkCover. The doctor said that many people struggle the WorkCover’s apparent inertia and, in the first year after their injury become distressed and frustrated and find it hard to adjust.

20. The doctor agreed that it was “the right call” to suspend (sic) the Applicant’s licence given the comments he made to the Police and his WorkCover case manager, but he considered it to be more related to wanting to change the outcome of how he was being treated. The doctor knew of no evidence in the past that he has misused his firearms as a direct result of his mental health. Also, whilst the Applicant used to drink very heavily, the doctor did not know there to be any evidence that he had operated a firearm when intoxicated.

21. The doctor considered there is no foreseeable risk at this stage that the Applicant’s condition may impact on his ability to exercise continuous or responsible control over firearms; the Applicant has been stable in his mental state, is seeking help and is engaging very well. His current WorkCover case manager seems very helpful and this is a positive prognostic factor, particularly given his history of interactions in the past with WorkCover. He has demonstrated significant reduction in his alcohol misuse and has committed to stick to this. The doctor observed that the Applicant has support of family and friends and now has the ability to deal with stress; he has significant insight.

22. He considered the Applicant has demonstrated improvement in his mental health and has done “far better than others”. This is also consistent with his reduction in alcohol intake.

23. As to whether the Applicant currently has the ability to form a rational judgement or to exercise willpower to control physical acts in accordance with rational judgment, he considered the Applicant has demonstrated sound judgement and insight and had acted in a way that does not raise concerns for the doctor. The doctor considered there was reduced judgement during the events of 27 September 2017 when the Applicant was under severe distress, but even then, the doctor considered, he was aware of the outcome. The Applicant’s level of distress has improved significantly and has not been repeated.

24. As to whether it is possible the Applicant will relapse in this regard, the doctor wrote that only if the treatment he receives is suboptimal. He believed that all involved in his care will ensure that his treatment remains optimal. There is only a very small possibility relapse. The Applicant’s conditions are now well treated, and given the time the doctor has been able to assess him and treat him, he believed they are at their optimum.

25. The doctor did not consider that the Applicant’s condition has the potential to put public safety at risk if they were to have possession and use of a firearm. In fact, he considered the issue of a firearms licence to the Applicant would further assist his rehabilitation. Whilst the Applicant has not engaged well with psychologists in the past this, the doctor said, is not uncommon and depends, in effect, on the development of a successful relationship. The Applicant has engaged well with Dr Austin-Woods, and has attended every appointment, despite a distance needing to be travelled to his rooms in Kiama from the Applicant’s home in Culburra Beach. The doctor proposes that he fulfill the ongoing counselling role.

26. Dr Austin-Woods did not believe the Applicant had previously posed a safety risk. The Applicant had continued to engage with the doctor who was satisfied in the stability of his mental state. The doctor proposed that if the Applicant were to have his firearms licence returned then he could alert Police if there were any future concerns. He acknowledged that his offer could be construed as having some reservations about the Applicant’s ability to safely manage firearms, but said he meant only that he is in a position to observe the Applicant because of his ongoing treatment.

CONSIDERATION

27. Before me, the Respondent’s objection to the Applicant holding a firearms licence was in relation to his alleged contemplation of suicide in 2017, as well as his ongoing mental health issues.

28. The expression “public interest” is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the ‘public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

29. I accept that the Applicant’s interest in shooting is a long-standing one dating from his farming youth. He also has an interest to have a licence as a volunteer in vermin control term. This is consistent with his current volunteer role in fox-baiting. I also accept Dr Austin-Woods evidence that the issue of a firearms licence would in fact be therapeutic. Private interests, however, are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an applicant’s character to be taken into account. They include 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 at [33]. The concept includes standards acknowledged to be for ‘the good order of society and for the well-being of its members’: Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. Accordingly, the Applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest. As observed by the Tribunal in Aubrey v Commissioner of Police [2005] NSWADT 266 at [21] "where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm".

30. Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was also a case on the “fit and proper person” test, I observe though that the principle in Ward has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66].

31. The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum: see also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].

32. The Applicant’s solicitor referred me to Ros v Commissioner of Police, NSW Police Force [2019] NSWCATAD 235 and noted that that decision was affirmed, because the Applicant had violent tendencies. Here there is no evidence that the Applicant had such tendencies.

33. The Applicant’s solicitor also referred me to AMJ v Commissioner of Police NSW Police Force [2012] NSWADT 228 where observations were made about the number of sessions conducted by the mental health expert. I observe that here there are close to 20 sessions with Dr Austin-Wood over nearly 2 years, and, as such, I accept that considerable weight should be attached to his views.

27. The Respondent submitted that, despite Dr Austin-Wood’s evidence there is too much uncertainty regarding the Applicant's mental health for the Tribunal to be satisfied that there is virtually no risk to public safety if the Applicant was granted a firearms licence.

28. In AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5 at [23], where the decision was set aside, the Tribunal held that while both effective treatment and a lengthy period of stability are relevant, they are not mandatory. In that matter, unlike here, there had been an actual suicide attempt.

29. It is also important to note that when considering whether there is "virtually no risk" to the public, the Tribunal should consider the risk to the Applicant himself, as a “member of the public”: Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117 at [74]. Further, the Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. When considering future risk, the Tribunal must consider the past conductof the Applicant as a significant guide: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]. There was no evidence that the Applicant has at any time taken any steps at any time to engage in self-harm. I am satisfied that the events of 27 September 2017, at most, was a "veiled threat” of suicide, but was more likely a cri de coeur in relation to his frustration with the workers compensation system and I am satisfied that he did not intend to engage in self-harm. In any event, I observe that that occurred about 3.5 years ago, and there has been no repetition of such conduct and I accept that the Applicant’s workers compensation management is now much improved and he acknowledges that the process must take its course.

30. Apart from the alleged threat of self-harm, the Respondent referred to the Applicant suffering from mental health issues for which he is medicated. While the Respondent referred to online information about relevant side-effects of Endone being dizziness, lightheadedness, confusion and drowsiness, Dr Austin-Woods referred only to the medication minimally impacting alertness, and in any event, observed that the Applicant does not take it regularly. The Respondent also referred to known side-effects of Ramipril to include dizziness, light-headedness and blurred vision. Similarly, side effects of Dexamfetamine include dizziness, excessive tiredness, seizures, agitation and hallucinations. The occurrence of side-effects in the Applicant was not put to the Applicant or his doctor. There was no evidence that the Applicant suffers these side effects, nor was the prevalence, or otherwise of possible side-effects discussed.

31. The s 58 documents contain a COPS Event dated 3 January 2020 when the Applicant had contacted Police to report that he had a verbal altercation with another person earlier in the day. During their attendance Police observed the Applicant to be unsteady on his feet and mildly intoxicated. The interaction with the Applicant it did not result in any action other than noting as a "record only in case further incident arise". I observe that this interaction was now over a year ago. Dr Austin-Wood’s evidence is that the Applicant continues to reduce his alcohol consumption. The Applicant’s evidence, which was unchallenged, was that he now drinks very little because of a recently diagnosed liver condition. I note that Dr Austin-Wood did not record any such diagnosis, but neither was he asked about it in cross-examination.

32. Dr Austin-Woods accepts the "right call" was made to refuse the Applicant's firearms licence given the comments the Applicant made in September 2017, but there is no evidence the Applicant has ever misused a firearm due to his mental health or intoxication.

33. Dr Austin-Woods offered to alert the Respondent "if there are any future concerns". I accept that his intention by this remark was to assure the Respondent that he has no doubts about the Applicant and that he is treating the Applicant on an ongoing basis. This is consistent with his evidence generally that the Applicant is very much improved. The Respondent in fact accepted that the Applicant's condition appears to be improving based on his ongoing treatment. However, the Respondent submitted, while the Applicant “has not made a threat of self-harm since September 2017”, the Applicant's improvement is relatively recent (since April 2019), and is dependent on ongoing treatment. Therefore, it was submitted, the Tribunal cannot be satisfied that there is virtually no risk to public safety if the Applicant were to granted a firearms licence. This contention is on the basis that the Applicant made a threat of self-harm, but I have found that there was no intention to actually engage in self-harm.

34. In respect of the character references of Messrs Howson and Jirgens the Respondent submitted while these speak to the Applicant's character generally, they do not refer to the Applicant's mental health or previous threat if self-harm, so should be given minimal weight in those circumstances. It seems to me though, if there were observable mental health issues, these are likely to be apparent to others. Mr Howson wrote that the Applicant managing aspects of his beef cattle operation and had found him to be conscientious and reliable and conducted himself with professionalism and was particularly safety-minded. I observe that Mr Howson wrote his reference now almost 18 months ago, and that Dr Austin-Wood’s evidence is that the Applicant has improved since that time. Similarly, Mr Jirgens, who has known the Applicant since November 2018 wrote very positively of the Applicant and expressed no concerns about the Applicant undertaking fox shooting and deer control on a property should he attain his licence.

Conclusion

42. In summary, while the Tribunal can never be completely satisfied that there is no risk in the Applicant having a firearms licence, in the circumstances I am satisfied that the risk is not sufficiently high that it should prevent the Applicant from holding the licence.

43. For the reasons outlined above, the correct and preferable decision is to set aside the decision of the Respondent to refuse the Applicant's application for a firearms licence under s 11(7) of the Firearms Act.

DECISION

1. The decision under review is set aside.

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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

Decision last updated: 26 March 2021