GGK v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 78

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GGK v Commissioner of Police, NSW Police Force [2024] NSWCATAD 78

Hearing dates:

27 November 2023

Date of orders:

22 March 2024

Decision date:

22 March 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

Administrative Law – firearms licensing – licence revocation – public interest – fitness and propriety - attempted suicide – mental health - risk.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Firearms Regulation 2017

Mental Health Act 2007

Cases Cited:

Allan v Commissioner of Police [2008] NSWADT 230

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

BSR v Office of the Children’s Guardian [2015] NSWCATAD 264

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65

Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117

Keane v Commissioner of Police, NSW Police [2008] NSWADT 68

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

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

Meacham v Commissioner of Police [2020] NSWCATAP 107

Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184.

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

Sweet v Commissioner of Police. NSW Police Service [2000] NSWADT 185

Ward v Commissioner of Police [2000] NSWADT 28

Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110

Wynne v Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 67

Category:

Principal judgment

Parties:

GGK (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self-Represented)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2023/00280814

Publication restriction:

Section 64 of the Civil and Administrative Tribunal Act 2013 applies in relation to the Applicant’s identity. The Applicant’s identity is not to be disclosed to the public without further order of the Tribunal

Reasons for Decision

Introduction

1. In these reasons, the name of the Applicant has been anonymised so as to preserve the privacy of his personal affairs. In these reasons the Applicant is referred to as GGK.

2. This is an application by GGK (“the Applicant”) for review of a decision by a delegate of the Commissioner of Police (“the Commissioner” or “the Respondent”) under the Firearms Act 1996 (“the Firearms Act”). The decision was to revoke the Applicant’s Category AB firearms licence.

3. The decision was affirmed on internal review. The Respondent submits that:

1. there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of a previous suicide attempt;

2. the Tribunal cannot be satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace; and

3. it is contrary to the public interest for the Applicant to continue to hold a firearms licence.

Background

4. GGK is an 84-year-old man who has held firearms licences for several decades. His most recent licence reapplication was in July 2019. The licence was revoked in July 2023. The revocation decision was affirmed on internal review in August 2023.

5. The revocation decision was taken in light of a report that on 9 February 2023 GGK had attempted to take his own life by an overdose of blood pressure tablets. He was initially taken to the Ryde Emergency Department. On 15 February 2023, he was transferred to the mental health unit at the Northern Beaches Hospital. He was discharged from there on 17 February 2023.

6. The internal review reasons for decision provides a reasonable summary of the events which lead to the revocation. The internal reviewer noted:

• That it is reported that on the evening of the 9th of February 2023, you took 40 of your prescribed blood pressure medication tablets in an attempt to take your own life.

• Your wife took you to the Ryde Emergency Department the following morning after finding you to be unwell. You were scheduled under the Mental Health Act 2007 as a precaution due to concerns for your safety.

• That on 13 February 2023, The NSWPF Firearms Registry received information by way of a section 79 (s79) Disclosure of Information by Health Professionals.

• A s79 disclosure is completed by a treating health professional when they form an opinion that a patient, who is also a firearms licence holder, poses a risk to public or personal safety.

• Subsequently, you were issued with a Notice of Suspension on 14 February 2023 and Police conducted a seizure of your firearms.

• That on 14 February 2023, at the time of Police issuing you with a Notice of Suspension, you were provided with a NSWPF Firearms Registry request to complete a Mental Health Risk Assessment (MHRA).

• You were provided with 8 weeks to complete the assessment.

• That on 12 July 2023, you were issued with a Notice of Revocation, citing public interest as the basis of the revocation, noting an absence of the MHRA that you were requested to complete.

• That on 3 August 2023, the NSWPF Firearms Registry received a request to review the decision to revoke your firearms licence. Your request was dated 28 July 2023.

• In your request you cite that the suicide attempt in February was mainly due to worry concerning your wife's recent diagnoses of a brain aneurism.

• Included in your submissions was a report authored by Dr Maurice FINN (Dr F) from the Royal North Shore Hospital.

• Dr F provides that the reason for the referral to him was to conduct a neuropsychological assessment, to assess your cognitive function in the context of having your firearms returned.

• Dr F provides that it is unclear why you made an attempt on your life but suggests that it may relate to your experience of seeing your mother in a nursing home. It is further reported that you did not have symptoms of depression or psychosis and that your risk of suicide was low.

• That you have held a firearms licence for a significant period of time.

7. The reviewer concluded:

I placed weight on the extended period of time in which you have been a licence holder, accruing minimal adverse holdings in that period.

Balanced against that weight, however, is the recency in which you made an actual attempt on your life, and what in my view, is an insufficient medical assessment.

I note that Dr F conducted a battery of tests during the assessment, however I am deterred by the fact that at the conclusion of the assessment with you, Dr F was unable to provide the reason behind your attempt on life.

I am of the view that either the assessment did not adequately explore the attempt on life in order to determine the reason/trigger for the attempt, or you were unwilling or unable to provide the information needed for Dr F to appropriately address the attempt on life.

Absent from mention in the report is any protective factors implemented to ensure a further attempt does not occur, what your risk of relapse is and what your on-going management plan is.

Dr F reports that you do not suffer from depression or psychosis, and offers no diagnoses of a mental health illness, however, what contradicts that information is your actual attempt on life. l am of the view that a mentally stable person, or a person of sound mind, does not enact life-ending behaviours.

Of note, the Administrative Decisions Tribunal has held that an expert medical opinion should contain sufficient details and reasoning to support the opinion expressed, and whether the expert should provide the criteria applied to reach those conclusions, outline the history taken and their understanding of the facts applied to the criteria in order to reach their opinion. The Tribunal held that if an opinion fails to comply with these basic requirements, it should be given no weight.

I am of the opinion that in the context of public safety, including your own, and the privilege of a firearms licence, that there remains an insufficient passage in time and inadequate expert medical opinion for it to be said that there is 'virtually no risk' in the context of you having unfettered possession of firearms.

Issues

8. The Tribunal is to determine whether the correct and preferable decision is to revoke the Applicant’s firearms licence.

9. This determination requires consideration of whether the Applicant is a fit and proper person to hold a firearms licence and whether it would be contrary to the public interest for him to do so.

Legislation

The role of the Tribunal

10. Section 9 of the Administrative Decisions Review Act 1997 (“the ADR Act,”) provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. This application is made under section 75 of the Firearms Act and the ADR Act. The Tribunal has jurisdiction in regard to a number of firearms licensing issues. The Tribunal’s jurisdiction includes review of a decision by the Respondent to revoke a firearms licence.

11. Section 63 of the ADR Act provides that in determining an application, the Tribunal is to determine what is the "correct and preferable decision" having regard to the material before it. In reaching the correct and preferable decision, the Tribunal may:

1. exercise all of the functions that are conferred or imposed by the Firearms Act on the Respondent; and

2. affirm the decision, vary the decision, set aside the decision, and make a decision in substitution of the decision, or set aside the decision and remit the matter for reconsideration by the Respondent.

12. There is no formal onus of proof. In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review. Its consideration is not limited to material that was before the Respondent at the time it made the decision which is under review.

13. The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. The Tribunal should consider all relevant materials and ignore all irrelevant materials.

14. The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]:

“[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on “logically probative material”, and not on “mere suspicion or speculation”, as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (“Pochi”) at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 (“Sullivan”) at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.

…

[83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on “logically probative material”: Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].”

15. As Principal Member Britton observed in BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at paragraph [17]:

… a practical or "forensic" burden can arise from the material presented. A party who asserts a fact has a responsibility to prove that fact: Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303; Holbrook and Australian Postal Commission (1983) 5 ALN N46.

16. In determining the review, the Tribunal, must exercise its discretion in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].

17. The underlying principles of the Firearms Act are, 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.

18. The underlying principles set out in section 3(1) of the Firearms Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety: Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 at paragraph [44].

19. Section 11 of the Firearms Act provides:

11 General restrictions on issue of licences

…

1. A licence must not be issued unless—

(a)   the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

...

1. Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of -

…

(b)    any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or

...

20. Section 24 of the Firearms Act provides:

24 Revocation of licence

...

(2) A licence may be revoked—

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

…

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

…

(d) for any other reason prescribed by the regulations.

21. 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'.

22. Section 4 of the Mental Health Act 2007 ("the MH Act') defines:

involuntary patient means—

(a)   a person who is ordered to be detained as an involuntary patient after a mental health inquiry or otherwise by the Tribunal, or

(b) a forensic patient who is re-classified as an involuntary patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, or

(c) a correctional patient who is re-classified as an involuntary patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

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 one 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)–(d).

23. Section 14 of the MH Act provides:

1. Mentally ill persons

2. A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary—

(a)   for the person’s own protection from serious harm, or

(b)   for the protection of others from serious harm.

1. In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person’s condition and the likely effects of any such deterioration, are to be taken into account.

   24. Section 15 of the MH Act provides:

2. Mentally disordered persons

A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary—

(a)   for the person’s own protection from serious physical harm, or

(b)   for the protection of others from serious physical harm.

25. Section 19 of the MH Act provides:

19 Detention on certificate of medical practitioner or accredited person

1. A person may be taken to and detained in a declared mental health facility on the basis of a certificate about the person’s condition issued by a medical practitioner or accredited person. ...

2. A mental health certificate may be given about a person only if the medical practitioner or accredited person—

   (a)   has personally examined or observed the person’s condition immediately before or shortly before completing the certificate, and

   (b)   is of the opinion that the person is a mentally ill person or a mentally disordered person, and

   (c)   is satisfied that no other appropriate means for dealing with the person is reasonably available, and that involuntary admission and detention are necessary, and

   (d)   is not a designated carer, the principal care provider or a near relative of the person.

3. A mental health certificate may contain a police assistance endorsement that police assistance is required if the person giving the certificate is of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer. ...

4. A mental health certificate may not be used to admit or detain a person in a facility—

   (a)   in the case of a person certified to be a mentally ill person, more than 5 days after it is given, or

   (b)   in the case of a person certified to be a mentally disordered person, more than one day after it is given.

5. In this section—

near relative of a person means a parent, brother, sister, child or spouse of the person and any other person prescribed for the purposes of this definition.

26. The Applicant was detained as an involuntary patient pursuant to section 19 of the MH Act in February 2023. The Respondent contends that the evidence before the Tribunal demonstrates that, at the very least, a medical practitioner concluded that the Applicant was suffering from a mental illness on 15 February 2023. The Respondent further contends that owing to that mental illness, there were reasonable grounds for believing that the care, treatment, or control of the Applicant was necessary for the Applicant’s own protection from serious harm, or for the protection of others from serious harm.

The public interest

27. The term “the public interest” has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681:

The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.

28. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel said that:

“The ‘public interest’ allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.”

29. In Cusumano v Commissioner of Police at paragraph [23] Deputy President Hennessy stated:

“There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.”

30. Section 3 of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community’s interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at paragraphs [27] – [28] Deputy President Hennessy said that in terms of public safety:

“27 …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.”

31. Ward v Commissioner of Police dealt with the issue of whether the applicant was a “fit and proper person” to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at paragraphs [130] – [134].

32. The question of risk is not, however, to be approached in an absolute or mechanistic way, 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 at paragraphs [64] – [66].

33. In determining this issue, 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: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].

34. As noted, the Respondent contends that the Applicant is no longer a fit and proper person to hold a firearms licence and that it is not in the public interest for him to continue to hold the licence.

Fit and proper person

35. The Firearms Act places an emphasis on the need for licensees to be fit and proper for the role. The Tribunal has considered the issue of whether an Applicant is a fit and proper person to hold a licence under the Firearms Act on numerous occasions.

36. The issue of an applicant’s fitness and propriety is one of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].

37. In the context of the Firearms Act, fitness and propriety “must be considered in the context of at all times ensuring public safety”: Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at paragraph [22].

38. The question of a person’s fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

39. They went on to say at 388:

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

40. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.

41. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term ‘fit and proper’ (at 156-7):

"The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”— Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

42. The Respondent contends that in light of the Applicant's recent attempt to die by suicide he is not a fit and proper person to have possession of firearms.

Material before the Tribunal.

43. The Respondent relies on a bundle of documents provided pursuant to section 58 of the ADR Act. The bundle includes an Event record from the Respondent’s electronic database (“COPS”) set out details in relation to a suicide attempt in February 2023. The Respondent also relies on a bundle of records which relate to the Applicant’s health, and which were obtained under summons.

44. The Respondent's solicitors also provided written submissions.

45. The Applicant relies on his own evidence and a psychological report dated 18 May 2023 authored by Dr Maurice Finn from the Royal North Shore Hospital (“the Finn report”). He attended the hearing, gave evidence and was cross-examined

The Respondent’s case.

46. The Respondent submits that, in light of the Applicant's very recent attempt to die by suicide, he should not be permitted to have access to firearms.

47. It is not in dispute that the Applicant attempted to take his own life on 9 February 2023. The incident is described in the Finn report as:

Overdose

Late in the evening of the 9th February 2023 [GGK] intentionally irbesartan (~40 tablets) after his wife had gone to bed. His wife found him vomiting and unwell the following morning (but was unaware that he had overdosed). She took him to Ryde ED where he was scheduled under the MHA as a precaution due to concerns about his safety. The reasons for the overdose are not clear and may relate to his experience of seeing his mother in a nursing home and expressing the wish that she had passed away 15 years earlier and also reportedly requesting "tablets" so that she could pass away. When assessed by mental health, [GGK] did not have any symptoms of depression or psychosis but did not want his wife or family to be informed of the overdose and made threats to sue the treating team if they did so. Nevertheless his wife was informed as a means to ensure [GGK's] safety when discharged home. As [GGK] had access to firearms at home (used for recreational shooting for decades) the Police took possession of these weapons.

48. The Respondent acted in relation to GGK’s firearms following the suicide attempt. A COPS Event record dated 14 February 2023 states:

Urgent police assistance is required to conduct a "concern for welfare check" (Mental Health/Suicide threat) and possible access to firearms.

On 14 February 2023 a Disclosure of Information by Health Professionals was received at the Firearms Registry. ...

Description.

[GGK] was admitted to Ryde Hospital after a suicide attempt.

…

Narrative Details

Police attended Ryde Hospital to speak with POI regarding the suspension of his firearms license and seizure of his firearms. Police provided the POI with a suspension notice of license. POI was further provided with paperwork regarding the maming (sic) of application and next steps to retrieve his property and the channels to do so.

All paperwork was presented and understood by the POI. Police further enquired as to the location of the POI’s keys for his firearms and safe storage location. He provided the location of the keys and the safe storage location.

A short time later, Police attended the address and spoke to the NOK who allowed entry to Police. Police located the keys and seized the below list of property:

…

49. The Respondent submitted that the mental health status and impulse control of persons who might access firearms is a significant concern of the Firearms Act. In particular:

1. Section 11(4)(b) and (c) of the Firearms Act prohibit the issue of a licence to a person if the Commissioner has reasonable cause to believe that they may not personally exercise continuous and responsible control over firearms because of any previous attempt to commit suicide or cause self-inflicted injury, or because of their intemperate habits or being of unsound mind.

2. Section 79 of the Firearms Act provides for the disclosure of otherwise confidential medical information if a health professional is of the opinion that a patient may pose a threat to public safety or to the person's own safety.

3. Section 11(3)(a) of the Firearms Act prohibits the issue of a licence to a person unless the Commissioner is satisfied that they are a fit and proper person to have possession of firearms without danger to public safety or to the peace. "Fitness" imports considerations of capacity, including a person's mental health status.

4. Section 11(7) of the Firearms Act permits the refusal of a firearms licence if the issue of the licence would be contrary to the public interest. An applicant's mental health status may be a factor, or the sole factor, in concluding that the issue of a firearms licence would be contrary to the public interest.

5. Section 64 of the Firearms Act makes it a criminal offence for a person to handle or use a firearm while the person is under the influence of alcohol or any other drug. The maximum penalty for the offence is imprisonment for 5 years.

50. The Finn report outlined the assessment process that was followed in relation to the Applicant’s mental health and concluded:

Summary and Recommendations

[GGK] is an 83 year-old man who lives with his wife in a house at Ryde. [GGK] was referred for a neuropsychological assessment by Dr Athuraliye Gunatilaka, Psychiatric Consultant at Ryde Older Persons Mental Health Team. The referral was made to assess his cognitive function in the context of an application by [GGK] to have his recreational firearms returned to him which were seized by police following an intentional overdose in February 2023. On a recent Montreal Cognitive Assessment he scored 28/30.

His premorbid level of intelligence was estimated to be at least in the Average range, with a probable preference for processing visual information. Formal neuropsychological testing found essentially normal cognition. [GGK] was able to attend to and learn/retain new information. He could also carry out complex switching tasks.

Opinion: Normal cognition for age and background.

Recommendations

•   Treating team to discuss with [GGK] the way forward.

•   The decision as to whether or not to return his firearms very properly rests with the Police. However, there is no evidence from this assessment of any cognitive impairment or incipient dementia that would otherwise raise concerns in this regard.

51. In regard to the Finn Report, the Respondent submitted:

It is noted that Dr Finn's report was a cognitive assessment. It was not a psychological report assessing the Applicant's mental health and did not address the risk he may pose should his Licence be reinstated. Additionally, Dr Finn did not have access to the Applicant's [Northern Beaches Hospital] records, which, in the Commissioner's submission, should limit the weight placed on the report as the Applicant's admission to the NBH was at a critical juncture in his mental health treatment and confirmed that the Applicant was still unaware of or did not wish to disclose the reason for his attempt to health professionals one week after the incident.

While Dr Finn noted that the Applicant does not have a prior mental health history and no formal diagnosis, it is apparent from his recommendation that the "treating team to discuss with [GGK] the way forward" that Dr Finn was of the opinion that further treatment and support was required for [GGK].

The Applicant has chosen not to provide evidence of his current mental health in these proceedings. The Tribunal cannot assume that the Applicant's mental health has improved in the short period since the February 2023 incident occurred merely because there has not been a further suicide attempt since then.

The Applicant has not filed evidence to satisfy the Tribunal that his mental health has improved such that it would not continue to affect his conduct and decision making. The Commissioner submits that, despite the absence of a burden of proof in administrative review proceedings, there is a significant gap in the evidence caused by the absence of meaningful medical evidence which addresses the risk posed by his mental health. This gap leaves the Tribunal unassisted as to the risk the Applicant's mental health may pose to public safety should he be issued a Licence.

As the information about the Applicant's suicide attempt is now known, it cannot be ignored. There is a total void of satisfactory independent evidence that the Applicant's attempts to die by suicide are behind him. ...

52. As noted above, the internal review statement of reasons stated:

l am of the view that a mentally stable person, or a person of sound mind, does not enact life-ending behaviours.

53. This submission was also presented at the hearing. The Respondent has not presented evidence in support of that view. In fact, the enactment of the Voluntary Assisted Dying Act 2022 (NSW) which came into force on 29/11/2023 suggests otherwise. I invited the Respondent’s solicitor to provide further submissions on this issue. Further submissions were provided, and the Respondent submitted that:

• While an applicant's mental health generally may be a relevant factor when considering the application of sections 11(3), 11(4)(b) and 11(7), the statutory language does not require the Tribunal to determine whether an applicant suffers from an identified or identifiable mental health condition.

• section 11(4)(b) manifests a Parliamentary intention that any attempt to commit suicide or cause a self-inflicted injury provides a sufficient basis for the Commissioner (or Tribunal) to conclude that an applicant may not personally exercise continuous and responsible control over firearms, even in the absence of evidence of an identifiable and diagnosable mental health condition.

• no finding of "unsound mind" (or possible future "unsound mind") is required by section 11(4)(b). All that is required to engage in section 11(4)(b) is a previous attempt by an applicant to commit suicide or cause a self-inflicted injury.

• section 11(4) precludes the Commissioner from issuing a licence if there is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms.

• section 11(4) does not require a positive conclusion that an applicant may, in fact, not personally exercise continuous and reasonable control over firearms. It is engaged merely by the presence of material which would give rise to a reasonable cause to so believe.

• section 11(3)(a) of the Firearms Act provides that the Tribunal must not issue a licence unless positively satisfied that the Applicant is a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace. If the Tribunal is not satisfied either way as to the Applicant's fitness and propriety, a licence must not issue.

• There is no presumption under the Firearms Act that an applicant is a fit and proper person within the meaning of section 11(3)(a).

• The language of sections 11(3) and 11(7) is sufficiently broad that, while the Tribunal might consider a diagnosed or identifiable mental illness in considering those tests, no such illness is required for an applicant's behaviour (or general matters as to their mental health) to be taken into account.

54. The Respondent submits that, in connection with the Applicant’s mental health:

• the Applicant suffered from a mental health condition.

• The Applicant was detained as an involuntary patient pursuant to section 19 of the MH Act. That detention required that a medical practitioner examine the Applicant and conclude that the patient was a mentally ill person or a mentally disordered person.

• On 15 February 2023, Dr Dobson of the Northern Beaches Hospital prepared a clinical report as to the mental state of the Applicant, and indicated that the Applicant was a mentally ill person.

• In order to have certified the Applicant as a "mentally ill person" on 15 February 2023, Dr Dobson must have concluded that the Applicant was suffering from a mental illness.

• the Applicant could have been detained as an involuntary patient based on a conclusion that he was a mentally disordered person.

55. The Respondent submits that it is open to the Tribunal to find that the Applicant is not a fit and proper person who can be trusted to have possession of firearms without danger to public safety (including his own safety) or to the peace, pursuant to section 11(3)(a) of the Firearms Act. The Respondent submits that it is not necessary for the Tribunal to find that the Applicant suffers from an identifiable or diagnosable mental health issue condition to reach that conclusion.

56. The Respondent submits that it is open to the Tribunal to find that:

• There is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of a previous attempt to commit suicide or cause a self­ inflicted injury; or

• The issue of a firearms licence to the Applicant would be contrary to the public interest.

57. The Respondent submits that the fact that the Applicant made an attempt to die by suicide, and the circumstances surrounding the Applicant's attempt, provide a sufficient basis for each of those findings, without more.

58. The Respondent further submits that, on 15 February 2023, a medical practitioner concluded that the Applicant was suffering from a mental illness. At that time, there were reasonable grounds for believing that the care, treatment, or control of the Applicant was necessary for his own protection from serious harm, or for the protection of others from serious harm. There is no evidence before the Tribunal that the Applicant no longer suffers from the mental illness which was active on 15 February 2023.

57. The Respondent referred to views expressed in Sweet v Commissioner of Police. NSW Police Service [2000] NSWADT 185 where the Tribunal considered the meaning of the words "unsound mind" in the context of the Firearms Act. The Tribunal explained at paragraph [27]:

1. ... To be of “unsound mind” a person’s mental condition must at least have the potential to put public safety at risk if that person has the possession or use of a firearm. ...

   60. The Respondent also referred to my decision in Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117. At paragraph [74] I stated that public safety includes the safety of the applicant themselves. This view has been followed in numerous other decisions. Most recently it was followed in Wynne v Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 67 at paragraph [72].

   61. The Respondent noted that the Applicant has not filed any material relating to his mental health since he filed his application. In Allan v Commissioner of Police [2008] NSWADT 230 I considered that a period of 15 months since the Applicant attempted to die by suicide was insufficient to satisfy me that there was virtually no risk.

   62. The Respondent submits that, in the present matter, insufficient time has passed to assess the Applicant's mental health to determine whether there is "virtually no risk" to the public safety in allowing the Applicant to hold a licence.

   63. The Respondent noted that Dr Finn was unable to identify the reason for the Applicant's suicide attempt. Additionally, no mental health risk assessment has been undertaken to assess the level of risk posed by the Applicant having his licence returned. This raises a significant concern regarding the level of risk posed by the Applicant's health. The Respondent submits that the Applicant has repeatedly downplayed the significance of his attempt to die by suicide. There is no evidence before the Tribunal to suggest that the Applicant has engaged with medical practitioners out of a genuine desire to improve his mental health.

   64. The Respondent also noted that the Applicant has stated that he is interested in and supports euthanasia and does not wish to remain alive with a reduced capacity. The Respondent submits that the Applicant's interest in euthanasia increases the possibility of the Applicant repeating his attempt to die by suicide. The Respondent also noted that upon the Applicant's discharge, Northern Beaches Hospital staff noted that the risk of self-harm would increase should the Applicant experience loss of role, loss of spouse or physical health decline.

   65. The Respondent submits that the Applicant’s efforts to downplay the significance of his suicide attempt indicates that he was unable to comprehend the risk posed to his own life as a result of his mental health issues.

   66. Ryde Hospital staff recorded that the Applicant had indicated that:

   • he would repeat his suicide attempt;

   • he wished he was successful;

   • he believes he has nothing to look forward to;

   • he was grateful for his life, but was adamant that it is time to go;

   • he has thought about suicide as a means of euthanasia; and

   • he wants to die before he suffers the pain and indignity of becoming less able and firm.

   67. The Respondent submits that there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms by re-attempting to die by suicide on an impulse decision, utilising a firearm if one were accessible.

   68. The Respondent also submits that the evidence indicates that the Applicant is no longer a fit and proper person to hold a firearms licence because:

   1. There has been no medical evidence to demonstrate a substantial improvement in the Applicant's mental health since his suicide attempt;

   2. The Applicant failed to genuinely engage in the mental health support services provided to assist in improving his mental health and prevented his family from supporting his mental health; and

   3. the reason for the Applicant's attempt to die by suicide are unknown.

   69. The Respondent submits that the threshold of "virtually no risk" is far exceeded in relation to the Applicant.

   70. The Respondent also submits that there is extremely limited public interest in allowing the Applicant to hold a firearms licence and, in contrast, a significant risk to public safety would arise should the licence be reinstated. The Applicant may harm himself or others if he could easily access firearms. The Respondent submits that the risk to public safety far outweighs any benefit should the Applicant be permitted to hold a licence.

   71. The Respondent submits that the Tribunal should find that the correct and preferable decision is to revoke the Applicant’s firearms licence. Therefore, the Tribunal should affirm the decision.

The Applicant’s case.

72. The Applicant attended the hearing and gave evidence and was cross-examined. He relies on his own evidence and the Finn Report.

73. The Finn Report provides some of the Applicant’s personal history. His request for an internal review of the revocation decision provided some other details relevant to this application.

74. He stated that he has been a gun owner since his teenage years and has never had any issues with the law. He seeks to have his firearms licence returned to be able to go hunting. He visits a friend on a property at Parkes and enjoys some rabbit shooting.

75. He has been visiting his friend in Parkes over about 10 years but has not been there for about 18 months due to his wife’s condition. He said that his wife is not well and needs daily help, but she is not incapacitated.

76. In regard to his suicide attempt he stated:

As you are aware, I did a stupid thing in February this year, mainly due to worry because my wife of 56 years was diagnosed with an aneurism of the brain. As a consequence, she eventually had to have a craniotomy from which she will fully recover.

77. Some details relating to the suicide attempt are set out above. The Applicant said that he did not tell his wife about the suicide attempt because he was traumatised and ashamed and had no explanation for the attempt. She was informed by the hospital and they have discussed it since then.

78. With respect to his hospitalisation, he said that he did not receive any explanation about his circumstances. Everything that he was told was at a time when he was not in a good frame of mind. Nobody mentioned his rights. A lot of information was recorded without his being told. He did not receive any written information about his rights except from the Northern Beaches Hospital.

79. He agreed that some of the treatment he received in hospital was useful, but some was stressful. After he was discharged, he had some ongoing assistance intended to provide him with support. He did not accept that his only reason for engaging with psychological assistance was to obtain a firearms licence. He said that it was only part of the reasoning. He said that his main reason was to get strategies to help with his wife. He saw Dr Finn on the recommendation of the Northern Beaches Hospital and there has been no ongoing relationship.

80. He agreed that he had been open and honest with Dr Finn. With respect to Dr Finn’s comment that there was no explanation for the suicide attempt, GGK said that he doesn’t really know the reason himself. He assumed that it was a result of the build-up of pressure. Apart from being under stress, he can not point to any other reasons for the attempt.

81. With respect to comments recorded in the hospital notes, GGK said that many of his comments were flippant remarks, but those remarks were recorded as serious comments. He said that, with the benefit of hindsight, he regrets some of his comments and that he shouldn’t have made many of the comments that have been recorded. At the time of his hospitalisation, he was not grateful that he had survived the suicide attempt, but he is grateful now. He agreed that he didn’t want his wife to know about the suicide attempt. He felt stupid and thought that the fewer who knew, the better. He said that he didn’t want to put his wife under any extra stress. He now thinks that having family support was a better option.

82. He said that he formed the view that he would not attempt to take his own life again. He said that his wife needs him. He understands her health situation. He said that she is a very independent person and if her health deteriorated it would destroy her independence. He said that he is the only one who can help her. He agreed that it would be stressful if her health deteriorated, but he will need to deal with it.

83. He maintained that he had no mental health issues at the time of the suicide attempt, but rather the suicide attempt was an impulsive act. He said that he did not see any benefit in ongoing discussion with counsellors.

84. With respect to the Respondent’s concern that he may use firearms to self-harm in the future, he said that at the time of his suicide attempt he had access to two firearms. He said that there are many ways to commit suicide, but it never crossed his mind to use firearms as a means to suicide.

85. He agreed that he is supportive of euthanasia. He referred to his mother’s situation. He said that she was in a nursing home for many years and was of sound mind, but her body was failing. She was kept alive against her will. She was in pain with inadequate medication. He said that she often expressed the wish that she could die, and she requested that he assist her so that she could pass away. He said that he would not want to be kept alive if he were in a similar situation.

86. GGK was referred to the notes recorded at Ryde hospital that record a number of views that he had expressed. The views related to euthanasia; his mother’s situation; his realisation that the best is behind him and he feels that he doesn’t have anything to look forward to; and that he wants to die before he suffers the pain and indignity of deteriorating health.

87. He did not dispute that he expressed those views at the time but stated that he wants to do his best to support his wife. He said that he could understand his mother’s situation but that he is not sick and not in the same position as she was.

88. GGK submits that there is no basis for concerns that there is a risk of further attempts at self-harm. He said that he has demonstrated 70 years of safe firearms use and compliance with legislation governing that use. He said that there is no risk to either the public or himself if his licence is reinstated.

Discussion

89. This is a matter in which the Applicant has a long history of firearms use and there is no suggestion that he has ever misused his firearms. The Respondent’s determination to revoke his firearms licence was because of a suicide attempt in February 2023.

90. The reason for the suicide attempt is unclear. GGK attributes his actions to a build-up in stress associated with his wife’s poor health. Dr Finn has not provided any other explanation.

91. The Respondent is of the view that there is risk to either the public or the Applicant himself if he has access to firearms. The evidence shows that GGK was suffering from a mental illness in February 2023, and he was detained as an involuntary patient under the MH Act. The Respondent submits that insufficient time has passed to assess the Applicant's mental health to determine whether there is "virtually no risk" to the public safety in allowing the Applicant to hold a licence.

92. The Respondent also submits that no mental health risk assessment has been undertaken to assess the level of risk posed by the Applicant having his licence returned.

93. I agree with those concerns.

94. While Dr Finn did not identify any cognitive impairment or incipient dementia, he was unable to identify any reason for the Applicant’s suicide attempt. He stated in his report:

The reasons for the overdose are not clear and may relate to his experience of seeing his mother in a nursing home and expressing the wish that she had passed away 15 years earlier and also reportedly requesting "tablets" so that she could pass away. When assessed by mental health, [GGK] did not have any symptoms of depression or psychosis …

95. This suggested explanation for the suicide attempt can be contrasted with the Applicant’s own evidence that he assumed that his suicide attempt was a result of the build-up of stress relating to his wife’s ill-health. However, he said that he doesn’t really know the reason.

96. The evidence is that GGK is his wife’s primary carer. The evidence also suggests that his wife’s health is likely to deteriorate further. If that is the case, I agree that it is likely that GGK will be subjected to greater stress than he is presently experiencing. There is no evidence to suggest that he is receiving any professional support to address these issues. There is also no evidence that addresses the risks associated with the likelihood of greater stress.

97. If GGK is correct in his assessment of the reason for his suicide attempt, it has implications for this matter. It is my view that he is likely to be subjected to greater stress than he is presently experiencing and that the added stress might increase the likelihood of a repeat of the circumstances which gave rise to the suicide attempt.

98. I note the Respondent’s concern in regard to the Applicant’s support for euthanasia. However, his evidence is that his interest in euthanasia is largely related to concerns about a decline in physical health. At the moment he is in good health. However, he is recorded as stating that he “wants to die before he suffers the pain and indignity of become less able and infirm”. I do not consider that GGK’s support for euthanasia is a significant risk factor at this time.

99. In this matter I need to form a view as to whether, based on all the evidence, GGK would pose a risk to public safety if he has access to firearms. In considering the issue of risk, it is necessary to take account of all the circumstances, with an overriding focus on public safety.

100. I do not need to determine whether GGK suffers from a mental health condition. However, it is clear that he was certified as suffering from a mental illness on 15 February 2023. He has maintained that he does not suffer from any mental health issues.

101. Section 11(4)(b) of the Firearms Act prohibit the issue of a licence to a person if there is reasonable cause to believe that the person may not personally exercise continuous and responsible control over firearms because of any previous attempt to commit suicide or cause self-inflicted injury. It is my view that there is reasonable cause for that belief. Section 11(4)(b) of the Firearms Act prohibits the issue of a licence in these circumstances.

102. I have reached that view because there is no recent psychological or psychiatric evidence in relation to GGK’s mental health. The evidence is that he suffered a mental illness in February 2023. There is no evidence that his mental health has improved since then. Further, there is no evidence that addresses the issue of whether GGK would pose a risk to public safety if his licence is reinstated.

103. Section 11(4)(b) of the Firearms Act prohibits the issue of a licence in these circumstances and section 24 provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.

104. Further, on the evidence before me, I am unable to conclude that GGK’s holding of a firearms licence would not present a real or appreciable risk to public safety (including his own safety). It follows that the Respondent made the correct and preferable decision in revoking GGK’s firearms licence. Therefore, it should be affirmed.

105. It is a matter for GGK whether he obtains psychological or psychiatric evidence in relation to his mental health and reapplies for a firearms licence.

Order

1. The decision under review is affirmed.

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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: 22 March 2024