McDonald v Commissioner of Police, NSW Police Force

[2018] NSWCATAD 129

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	McDonald v Commissioner of Police, NSW Police Force [2018] NSWCATAD 129
Hearing dates:	30 April 2018
Date of orders:	21 June 2018
Decision date:	21 June 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Naida Isenberg, Senior Member
Decision:	The Commissioner's decision to revoke the Applicant's firearms licence is set aside.
Catchwords:	ADMINISTRATIVE LAW – merits review - firearms licence –– revocation of licence – alleged mental health issues - public interest
Legislation Cited:	Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW) Mental Health Act 2007 (NSW)
Cases Cited:	AML v Commissioner of Police NSW Police Force [2013] NSWADT 5 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Ward v Commissioner of Police [2000] NSWADT 28
Category:	Principal judgment
Parties:	Robert Keith McDonald (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel: J Loschiavo (Applicant)   Solicitors: Jacqueline Gore & Associates Pty Ltd (Applicant) Maddocks (Respondent)
File Number(s):	2017/00386606

REASONS FOR DECISION

Background

1. Robert McDonald, the Applicant, now aged 61, has owned firearms since he was a youth. He has held an AB firearms licence since the introduction of the Firearms Act 1996 (the Act). Since that time, his firearms storage arrangements have been inspected on a number of occasions, and, each time, everything has been found to be in order. In November 2016, he came to the attention of Police in an incident (the first incident) which raised mental health concerns; his licence was suspended, and his firearms seized. After a supportive report was provided by his treating psychologist, his licence was reinstated. However, in May 2017 there was a further incident (the second incident) which again raised mental health concerns and his licence was revoked under s 24(2) of the Act, that it was not in the public interest for him to continue to hold a licence. That decision was affirmed on internal review and Mr McDonald now seeks review by this Tribunal.

Legislation and relevant authorities

2. The Act provides that a firearms licence may be revoked for a number of reasons, including any reason prescribed by the Regulations. Clause 20 of the Firearms Regulation 2017 provides that the Commissioner may revoke a licence if the Commissioner (or the Tribunal on review) is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

3. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, the Appeal Panel said, albeit in the context of the licensing regime for the security industry, that the ‘public interest’ is an inherently broad concept giving the Commissioner, and the Tribunal on review, the ability to have regard to a wide range of factors in choosing whether to exercise discretion adversely to an individual: at [25].

4. The 'public interest' allows a consideration of 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: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

5. In Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 (Ward) Deputy President Hennessy made comments relevant to a consideration of whether the issue of the licence may be contrary to the public interest. The Deputy President, although dealing with the "fit and proper person" requirement elsewhere in the Act, focused on the importance of protecting public safety. At [28] she said 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 not pose any risk to public safety.

6. The underlying principles stated in s 3(1) of the 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. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23].

7. In AML v Commissioner of Police NSW Police Force [2013] NSWADT 5 (AML), at [23], the Tribunal held that while both effective treatment and a lengthy period of stability are relevant, they are not mandatory.

8. Section 22 the Mental Health Act 2007 provides, relevantly, to the effect that if a person appears to police to be mentally disturbed and police believe on reasonable grounds that the person has recently attempted to kill himself or that it is probable that he will attempt to kill himself or any other person or attempt to cause serious physical harm to himself or any other person, and it would be beneficial to the person's welfare, they may apprehend him and take him to a mental health facility.

The first incident

9. In October 2016, the Applicant had been referred by his General Practitioner, Dr Wilden-Constantin, to Ms Linda Carter, a registered psychologist, for marriage counselling sessions. After two or three sessions in which he said he had reported feeling ‘flat’, ‘out of it’ and ‘isolated’, at the suggestion of Ms Carter, on 5 November 2016, the Applicant and his wife attended a joint counselling session. During the appointment, the Applicant thought Ms Carter and his wife were laughing at him and he reportedly slammed his fist onto the desk, and stormed out of Ms Carter’s rooms and left in his car, and was uncontactable.

10. Ms Carter was recorded as having contacted Police to file a missing person's report in respect of the Applicant due to his history of self-harm attempts, major depression and concerns that the Applicant was at risk of further self-harm or suicide. The police report in respect of the incident notes that the Applicant's wife reportedly told Police that the Applicant had a "suicide kit" in the form of equipment to gas himself in his car and if that failed, the Applicant would poison himself. The Applicant denied that he had a suicide kit or had referred to a suicide kit.

11. In his evidence the Applicant said that he then turned his phone off, as he did not want to speak to Ms Carter and his wife. He said he went to a place for about 2½ hours before he was due to start his shift as a charter bus driver. In the course of his shift, he took passengers from Goulburn to Crookwell, waited till their function was over, then returned them to a number of locations around Goulburn.

12. Police made repeated attempts by phone and text to contact the Applicant and used "triangulation" software in an attempt to locate his mobile phone. The Applicant responded to requests to call Police on two occasions, reportedly refusing to disclose his location but stating he was "not going to be a problem anymore" and he "had unfinished business". In his evidence the Applicant said that if he told Police where he was they would come for him and he would not be able to finish his bus-driving task, and that would have been unfortunate for the passengers and his employer. This was the ‘unfinished business’ to which he was referring.

13. In his evidence the Applicant vehemently denied he had ever contemplated suicide. He said that in the earlier sessions Ms Carter had asked if he had thought about suicide and he had told her about when he had worked as a Coroner, in the course of which he had had encountered many self-inflicted deaths; he said he simply could not put his kids through that. He denied that he had suffered PTSD as a result of his coronial experiences. He said he had told Ms Carter that there were ways to commit suicide that were less effective; suicide using firearms was not always reliable. He said she had pressed him as to how he would do it, and he had told her that carbon monoxide poisoning was a method he would prefer, or poison.

14. In the early hours of 6 November 2016, Police located the Applicant outside his place of employment, after he had dropped off the last of his passengers and secured the bus. Due to the events of the previous day, Police decided the Applicant was in need of treatment and escorted him, pursuant to s 22 of the Mental Health Act 2007, to Goulburn Base Hospital for assessment. After some delay, he underwent a 15-20 minute assessment by video link, after which he was permitted to return home.

The second incident

15. The Applicant said that shortly prior to the second incident which occurred on 21 May 2017, he learnt of the suicide of a close friend; at the time he was travelling to the funeral of another friend. The Applicant said he felt guilty because the friend who had suicided had not been able to reach out to him. At the time he was also still ‘grieving’ about his marriage breakdown. Then, after he had been at the rental premises of the friend who had suicided for three days sorting through his possessions in anticipation of the premises being relinquished to the owner, his friend’s children arrived and they started ‘throwing things around’ and demonstrating what, in his view, was a lack of respect for their late father. He regarded this as the ‘trigger’. He left and went to the hotel where he drank heavily, and while doing so, composed a farewell text message to his friend, and started home. He said that he wrote: "thanks for being a mate, goodbye, I will see you again someday". It was submitted that this was not a suicide note but a gesture from a man grieving for a deceased friend. He later found out, he had inadvertently sent the text to his wife. It was submitted that he was so intoxicated that his use of his mobile phone was impaired, such that he accidently sent this message to his wife. He had no intention of harming himself.

16. According to the police report, the Applicant's wife reported that the Applicant had “stated”, "I will see you in the next life". In his evidence the Applicant said he did not speak to his wife, and, in any event, that this was not the totality of the text.

17. As he was walking home from the hotel where he had been drinking he saw the Police arrive at his home. The Applicant said his wife told him she had contacted the Police, and had told them about the text. He said he told her the text was a mistake and the Police should be ‘called off’. He went into nearby bushland and turned his phone off. He appears to have been coaxed back by his daughter, when she told him the Police had come for his weapons, and he needed to return home to unlock the gun safe. He said he was embarrassed by his level of intoxication.

18. The police report records that the Applicant said that it was his [estranged] wife making trouble. In his evidence he said that his firearms were the only thing his wife could not take from him, because she held no licence. After being notified by Police that his firearms would be seized, the Applicant allegedly became agitated and stated: "If you take the firearms that will be the last straw"; "it will be the end"; and "it may not be tonight, tomorrow or even the next day, but it will happen". In his evidence the Applicant agreed that he may have said those things; he explained in his evidence that he meant his wife would try again to deprive him of his firearms. In his evidence he said that, while he was upset, he was not suicidal.

19. Again, on this occasion, Police decided the Applicant was in need of treatment and escorted him, pursuant to s 22 of the Mental Health Act 2007, to Goulburn Base Hospital where he again underwent an assessment by video link, and again, was permitted to return home.

Psychologist’s reports: Ms Linda Carter, registered psychologist

20. In her evidence Ms Carter said that the Applicant had been referred to her by his General Practitioner, Dr Wilden-Constantin because of issues associated with his marriage breakdown. She first saw him on 21 October 2016, when he reported he was ‘depressed and grieving’ due to his marriage breakup and his self-worth was ‘non-existent’. She considered ‘grief [about the marriage]’ to be the predominant issue. He was not coping and he told her that he had ‘nothing to live for’. He was drinking excessively.

Letter to Goulburn Police dated 5 November 2016 (the letter)

21. On the evening of the day of the first incident, Ms Carter wrote to Police stating that the Applicant was "suffering from major depression", although, in her evidence, said she had not conducted any formal testing to reach her diagnosis.

22. She wrote that the Applicant reported:

…recurrent symptoms since the separation including flat effect, very depressed avoidance (sic), suicidal ideation, feeling isolated, dissociation, anxiousness (sic), insomnia – sleeping very little for days at a time, agitated, excessive worry, concentration problems, getting upset by quite trivial things, over reacting (sic) to situations, impatience, an inability to wind down or relax, social isolation, intolerance, irritability, loss of interest, motivation (sic), hopelessness, and self-doubt.

23. The Applicant denied he had reported very depressed avoidance (sic), suicidal ideation, feeling isolated, dissociation, anxiousness (sic), insomnia – sleeping very little for days at a time, agitated, getting upset by quite trivial things, over reacting (sic) to situations, impatience, and self-doubt.

24. She wrote that she considered he was "at high risk of committing suicide". In her evidence she said that on that day, at that time, that was her view, and she was concerned about him.

25. She wrote that the Applicant had "outlined a very detailed strategy and was planning to implement this plan at the end of November, so he could put his affairs in order". She wrote that she was “very concerned about his state of mind, and the fact he continue[d] to determinately (sic) state he is going to end it”. She considered he needed to be hospitalised to stabilise his condition.

26. She also wrote that she had had a telephone conversation with the Applicant that evening, during which he told her "he wanted to let [her] know [she] contributed to what he was going to do next." In his evidence the Applicant denied he had said that and claimed that Ms Carter had misinterpreted what he had said.

Report dated 10 December 2016 (first report)

27. Ms Carter’s first report was dated a few weeks after the first incident. By the date of the report the Applicant had attended counselling on 6 occasions.

28. She wrote that Mr McDonald had been diagnosed with grief and depression; “at the time” (which she explained in her evidence to be the time of the first incident) he had been very distressed and, she believed, suicidal. She wrote that Mr McDonald presented at the counselling session on the day of the first incident in a very agitated state. He had become frustrated, misinterpreted information, made an assumption, and slammed his fist down on the desk and stormed out. Due to his distraught state she was concerned he may self-harm.

29. Subsequent to the first incident though, Mr McDonald became actively involved in the counselling process in which strategies were discussed and he was participating willingly throughout the counselling process. He was able to identify areas he needed to work on and took positive steps towards change. In his evidence the Applicant said he had adopted the strategies Ms Carter had suggested, such as focusing on positively aspects of his life that would continue notwithstanding that his marriage was over. He reduced his drinking to the same level as prior to the split.

30. By the time of the first report, Ms Carter considered that many of the issues that were underpinning the Applicant’s symptoms had been reduced or were no longer an issue. Mr McDonald’s sleep had improved, and he had “stopped” drinking and had re-established his relationship with his daughters. He had also found another friend who has been going through similar circumstances and they were supporting each other. Mr McDonald, she wrote, appeared to have moved through his crisis and had reportedly reached a level of acceptance about the state of his marriage. He had previously felt very overwhelmed with everything happening to him all at once, but she considered he had gained new skills to manage future situations and symptoms. Mr McDonald told her he was not taking any medication. In her evidence she said, from the time of the first report it was her view that he no longer suffered major depression, because, by then, she had ‘got to know him better’.

31. Ms Carter knew of no incident prior to that which took place in her office. In addition, his issues regarding self-harm did not involve guns at all; in fact Ms Carter was unaware that he owned any firearms until informed by Police. She was aware he had previously worked as a Coroner and he told he knew the unreliable results of using a gun [as a method of suicide] and would never put anyone through that. In her evidence she said that there had been no suicidal ideation, and in any event, he would not have used firearms. She said suicide had been discussed in their sessions to identify a ‘plan risk’.

32. Ms Carter considered Mr McDonald demonstrated good insight regarding his own behaviour. He was able implement strategies and techniques to be able to recognise and effectively cope with cues and triggers in the environment that could contribute to relapse. He was demonstrating his ability to recognise, accept and cope with his feelings of any anxiety, depression and being overwhelmed.

33. In Ms Carter’s view there was, at the time of the first report, a low risk that the Applicant's condition or impairment might impact on his ability to exercise continuous or responsible control over firearms. She noted he had undergone counselling and had dealt with many of the underpinning issues that led to the [first] incident and she considered he was fit to exercise continuous or responsible control over firearms.

34. She considered it very unlikely that Mr McDonald would relapse. She considered that at that time he had the ability to form rational judgements. She considered the Applicant had developed additional skills to manage any symptoms that may arise.

35. In her opinion there was no current risk to public safety. There has only been a concern about self-harm once; no firearms were involved. There was never any concern about any harm to the community.

36. She observed that Mr McDonald has been a responsible holder of firearms for many years. There has never been any incident where there was a risk to public safety involving firearms, Mr McDonald suffered from a brief mental health issue, but he was not mentally ill. In her evidence she said that he had adjusted to the fact that his marriage was over.

37. The second incident involving the Applicant, discussed above, occurred on 21 May 2017, about 5 months after the first report.

38. Ms Carter said in her evidence that the second incident was a result of the cumulation of the loss of his wife and his friends. Since that time there are now other people in his life and he is not so isolated. She said that his wife [orchestrating] the taking of his firearms was ‘the last straw’. She did not regard the text as a suicide threat, but could not recall if she discussed its content with the Applicant.

Report dated 13 March 2018 (second report)

39. Ms Carter’s second report was prepared for the purposes of these proceedings. A Beck Depression Inventory was administered to test the Applicant’s levels of depression. His results were within normal levels, indicating he suffers no more depression than the average person. A Suicide Risk Screener was administered to ascertain the level of suicidal risk, and to determine what intervention and management strategies are necessary; and to develop a safety plan to reduce risk. Results indicated a low level of suicidal risk, with no plans or intent, no prior attempts, few risk factors and identifiable 'protective factors’. She considered he had reduced his anxiety and depression levels significantly [to] within normal levels. She wrote that he is not now mentally ill.

39. She wrote that Mr McDonald "has not actually ever tried to commit suicide, though he had spoken about it." She wrote that following the meeting of 5 November 2016, she had concern "regarding [the Applicant committing] self-harm". At the time, there was no concern about him using a firearm, as he had stated he would use a car and asphyxiate himself. Mr McDonald had been unable to see a way to change his situation, rather than wanting to kill himself. There was never a concern about a risk to public safety.

40. She wrote that originally, the Applicant was diagnosed with grief and depression due to the breakdown of his marriage. Sometime later, when his close friend committed suicide, the loss of this friend triggered his grief, especially as he reported having few other friends. Ms Carter observed that "the real underpinning issues [the Applicant's grief and depression] have been resolved". He has accepted and come to terms with his marriage breakdown and the death of his close friend. She said he is not the same person he was when she first saw him and at the time of the first incident, and that the likelihood of him returning to that state was ‘very slim’. She said a ‘100% guarantee’ could never be given about anybody.

41. She considered the Applicant to be "currently fit to possess and use firearms". She considered Mr McDonald has good insight into his own behaviour. He can implement strategies and techniques to recognise and effectively cope with cues or triggers in the environment that could contribute to relapse. He has demonstrated his ability to recognise, accept and cope with his feelings of any anxiety, depression or being overwhelmed. He no longer requires medication. She reported that he told her he has reduced his alcohol significantly and abstains most days; having an occasional beer. She considered that if he continues to refrain from drinking any alcohol and continues as he has, it is unlikely he would relapse and pose a risk. In her evidence she said that he now drinks very little. In her view alcohol usage increases the risk for the Applicant, but also for anyone, as alcohol use reduces rationality.

42. Ms Carter believed Mr McDonald has only ever been any kind of a risk to himself and that risk is now low. She considered "it is unlikely that he would relapse and pose a risk". He continued to learn new strategies and, “like us all”, can become overwhelmed by tragic events. She wrote that “[the Applicant] can implement strategies and techniques to recognise and effectively cope with cues or triggers in the environment that can contribute to relapse".

43. In relation to the division of the matrimonial property which remains to be finalised, she said he has been able to reach agreement without the previous emotional involvement, and his indifference lessens the likelihood of a relapse. He had ‘moved on’ and was making plans for the future. She considered there was ‘very little or no’ risk.

Letter from Dr I Wilden-Constantin

45. The Applicant's General Practitioner, Dr Ivan Wilden-Constantin, provided a brief report dated 13 June 2017. The report refers to the Applicant having consulted him on 26 May 2017, reporting that he had experienced a 'meltdown'. He considered the Applicant to have been “a victim of circumstances - he had run out of medication and had lost a close friend and had been treated with a lack of respect by the children of the deceased”.

46. Notwithstanding that he saw the Applicant only a few days after the second incident, Dr Wilden-Constantin found the Applicant to have normal cognitive functions and normal affect and mood. The doctor was of the view that the Applicant was not at risk of self-harm nor was he a risk to the community. He considered that he is capable of handling and possessing firearms.

Letter from Shibu Joseph dated 22 June 2017

47. The Applicant provided a letter from Shibu Joseph, a mental health clinician at Community Mental Health Team, Goulburn. The letter records that the Applicant received treatment from the team from 21 May 2017 for a month, although, as the Applicant observed, Mr Joseph’s letter does not refer to him as suffering any mental health issues. Mr Joseph recommended that the Applicant should "continue follow-up with his GP as well as the Psychologist". Ms Carter confirmed that the Applicant had resumed counselling, as recommended.

48. The Applicant said in his evidence that, after each incident, he had consulted the mental health team within 48 hours of his assessment.

Consideration

49. The principal issue in determining public safety is whether or not there is a risk to the safety of the public if the Applicant’s licence to possess firearms is returned to him.

50. The delegate of the Commissioner in the decision under review noted that Police held very real concerns for the Applicant’s personal safety arising from both incidents, and that the latter incident was, at the time of the decision, recent – that is, in May 2017 – only 6 months beforehand. The delegate agreed that the best person to provide a psychological assessment to determine the Applicant’s suitability to maintain continuous and responsible control over firearms was Ms Carter, but even a favourable assessment by Ms Carter could not displace the recency of the second incident.

51. There was no dispute that the Applicant has no criminal record, nor any history of violent conduct. The Applicant has owned firearms for over 20 years and has held a firearms licence since the introduction of the Act. He has never come to adverse attention with respect to his firearms licence or otherwise.

52. The Respondent submitted that Ms Carter's opinion that there is little or no risk to public safety should the Applicant’s firearms licence be reinstated is erroneously based the assumption that a risk to 'public safety' does not include a risk to the Applicant himself.

53. The Applicant vehemently denied he had ever contemplated suicide. The Respondent’s case relies on an assumption that the incidents amounted to threats of suicide. It is not clear to me though that either of the incidents is appropriately characterised that way. At best, the evidence is equivocal. What is clear is that neither incident gave rise to a suicide attempt, by any means, and certainly not using a firearm.

54. In relation to the first incident, Ms Carter contacted Police because of her concerns for the Applicant’s well-being, and, no doubt, for her possible role - at least in the Applicant’s mind - for precipitating the incident. The police report refers to her having contacted Police ‘given the suicidal state of [the Applicant] and his history of self-harm attempts’. In her evidence Ms Carter conceded that the Applicant did not have a history of self-harm attempts, and said that while they had discussed suicide in the counselling sessions, she did not consider him to have actually previously contemplated suicide. The Applicant, perhaps understandably, did not want to talk to Ms Carter or his wife and absented himself until he commenced his work shift, and then, went about his duties in what appears to have been a responsible fashion. He appears to have been ‘apprehended’ without incident. No Police witnesses were called. The fact that the Applicant was released following an obligatory mental health assessment, would tend to confirm that he was not mentally ill at that time. I observe that the Mental Health Act requires admission if there is evidence that a person is likely to harm themselves or others.

55. The second incident was precipitated by the suicide of a close friend and events that followed. Ms Carter noted that, at the time, the Applicant was still grieving about the loss of his marriage, the death of another friend, and the perceived disrespect in the conduct of his friend’s children. From the police report, the Police had proceeded on the basis that the Applicant had spoken to his wife about seeing her in the next life, and appear to have interpreted this as a suicide threat. Again, no Police gave evidence, nor was the Applicant’s ex-wife called to give evidence. It would also have been helpful to have the entire text available so as to see the context in which the perceived threat of suicide occurred, and consequently, if there was any ambiguity in what, and to whom, it had been addressed. While it seems to me that composing a farewell text to a dead friend is somewhat implausible, I accept the Applicant’s account that he wrote the text while drunk. His drunkenness is also likely to explain that he inadvertently sent it to his wife. Again, he was released following a mental health assessment.

56. The Respondent observed that notwithstanding Ms Carter’s strategies which the Applicant had adopted, and which created a significant change in her view such as to give rise to the (favourable) first report, he experienced unexpected stressors which gave rise to the second incident. Similarly, it was submitted, that his reaction to the likely stressor of the final disposition of the family’s assets, could trigger a relapse. By inference, other, unforeseen stressors could also precipitate a relapse. Ms Carter was of the view that the Applicant is no longer suffering from grief and depression and has ‘moved on’. I am satisfied, on the basis of Ms Carter’s evidence and that of the Applicant that he has developed skills to manage setbacks and accordingly the risk of relapse in those circumstances is very low.

57. Further, even if the second incident could be characterised as a threat of suicide, I am satisfied that enough time has passed since to be satisfied that the Applicant poses virtually no risk to public safety (per AML and Ward).

58. I also accept that it is highly improbable that, in the unlikely event the Applicant did attempt self-harm, he would use a firearm, given his unblemished history in relation to firearms and his experience as a Coroner with the unpredictable results of suicide by that means.

Decision

1. The Commissioner's decision to revoke the Applicant's firearms licence 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: 21 June 2018