Narayan v Commissioner of Police, New South Wales Police Force

[2024] NSWCATAD 362

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Narayan v Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 362

Hearing dates:

26 November 2024

Date of orders:

03 December 2024

Decision date:

03 December 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof G D Walker, Senior Member

Decision:

Decision under review affirmed.

Catchwords:

LICENSING – firearms licensing – licence refusal – public interest – domestic circumstances – mental health.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Firearms Act 1996 (NSW)

Mental Health Act 2007 (NSW)

Cases Cited:

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

Briginshaw v Briginshaw (1938) 60 CLR 316;

Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42;

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

Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50;

Deshaney v Winnebago County of Social Services (1989) 489 US 189;

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60;

Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70;

Hill v Chief Constable of West Yorkshire [2018] UKSC 4;

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

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

McDonald v Director-General, Social Services (1984) FCA 57, (1984) 1 FCR 354;

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;

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4;

Sterjovski v Director-General, of Transport [2002] NSWADT 10;

Warren v District of Columbia (1981) 444 A 2d 1;

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

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

Category:

Principal judgment

Parties:

Ms Ranu Narayan (Applicant)
Commissioner of Police, New South Wales Police Force (Respondent)

Representation:

Applicant (Self-Represented)

Solicitors:

Hall & Wilcox (Respondent)

File Number(s):

2024/00289099

reasons for decision

1. The applicant Ms Ranu Narayan applied to this tribunal on 7 August 2024 for review of a decision by the respondent Commissioner on 2 August 2024 to refuse her category A firearms licence application. She had applied for it on 1 May 2024 and had not previously held a New South Wales firearms licence.

2. The application was refused on public interest grounds. On 26 June 2023 police had attended at her residence at Bonnyrigg Heights following an incident of domestic violence between her and her younger son, who will be referred to as VN. In the course of an argument about VN’s fiancée, who the applicant did not wish to allow in her house, VN tried to force the applicant to speak to her on the telephone. When she attempted to record his actions, he seized her telephone and threw it across the room, then grasping the applicant by the wrists and pulling her to the floor, causing her pain. She asked her elder son, “NN”, who had witnessed the incident, to call police.

3. VN then pushed the applicant backwards into an armchair and held her down to prevent her from standing up. She told police that she briefly fainted from being overwhelmed while being held in the chair, whereupon VN threw water in her face. The applicant told police that she had extreme concerns that if released, VN would kill her and NN, before killing himself. She told police that VN had struck and attempted to kill NN many times in the past, requiring her to intervene. She also told police that a few weeks earlier, she and VN were having an argument regarding his fiancée when he had picked up a knife and threatened to kill himself if she called police. Police conveyed VN to Fairfield police station.

4. On 24 July 2023, VN was found guilty without conviction of destroying or damaging property to a value of less than $2000 (DV) and common assault (DV). He was made subject to a conditional release order (CRO) for a period of two years commencing on 24 July 2023 and expiring on 23 July 2025 (exhibit A1, annexure A). Police obtained an AVO naming VN and identifying the applicant as the person in need of protection. That AVO has been amended, but remains in force until 12 May 2025.

5. Also on 24 July 2023, the applicant told police on the telephone that she was going to commit suicide by hanging herself or overdosing and that she would write a letter of explanation. When police thereupon conducted a welfare check at her residence, she told police she was going to kill herself and would not let them enter the premises. In due course she admitted them and was scheduled under the Mental Health Act 2007. Paramedics attended to her at the scene and conveyed her to Bankstown Hospital.

6. On 1 May 2024 the applicant applied for a category A firearms licence as the owner of rural land at Emmaville, New South Wales. It is not disputed that she has a genuine reason for holding a licence, but the licence was refused on public interest grounds because of concerns about the conduct of VN, who resided at her address, and a risk that he might coerce her into giving access to firearms.

7. On 20 June 2024 the applicant sought an internal review of the refusal decision. The respondent wrote to her on 10 July 2024 requesting additional information from her general practitioner, a psychologist or a psychiatrist dealing with concerns held by the respondent about her mental health, and specifically referring to the incident on 24 July 2023, seeking detailed information to assist the Firearms Registry in making its decision (exhibit R1, pp 54 – 55). The applicant provided a brief certificate from her general practitioner in Liverpool (id., 5) which made no reference to her threats of self-harm. The internal review affirmed the revocation decision on 2 August 2024 and the applicant applied for review of the decision in this tribunal on 7 August 2024. The matter came on for hearing on 26 November 2024.

Applicable legislation

8. Section 11(7) of the Firearms Act sets out the general restrictions on the issue of licences. Relevantly it provides that:

(4) 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 –

1. the applicant’s way of living or domestic circumstances….

(7) Despite any provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

The evidence

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

10. The applicant did not file a witness statement as directed by Ransome PM on 27 August 2024 but consented to her letter of 19 June 2024 (exhibit R1, pp 36 – 37) being treated as one. She did not call oral evidence, explaining at the hearing that she had warned her children to stay away from the proceedings because of alleged police harassment.

11. The letter of 19 June 2024 related inter alia that the family had purchased a rural property at Emmaville in November 2023 which contained wild animals such as wild dogs, foxes, razorback pigs, goats, wombats and venomous snakes. In March 2024, wild dogs had chased her son VN on the property and had bitten him, causing him to ride off the track and become lost. Emergency search and rescue had been activated, and VN was found and treated at Glen Innes Hospital.

12. Because of that incident, she had applied for a firearms licence. If she were on the property and wild animals attacked, the letter said, then either emergency search and rescue would have to be activated, or wild animals would make a meal out of her and her family.

13. Her son VN had been living with her since he was born, for the last 29 years, during which time he had supported the family. She had raised her children on her own and at no point in time had she ever felt unsafe. VN had always put his responsibilities first in taking care of his family.

14. On the night of the incident, it was way out of character for VN – she knows he had mentioned that he had been highly stressed recently due to situations he had been handling on his own at the time. She holds no fear concerning her son being with her or living with her, and for that reason the AVO had been amended by Fairfield Local Court on 13 May 2024.

15. The Fairfield Court decision clearly stated that there were no public concerns and he was deemed to be in the low risk category. Consequently he was permitted to be in possession of firearms and other devices for his employment. That demonstrated that there were no risks associated with VN, given the decisions made by the court allowing him to be in possession of prohibited weapons and firearms.

16. It is a vital requirement for safety and survival on the rural property they own to be in possession of firearms, due to the nature of the property and the dangers of wild animals that inhabit it.

17. In oral evidence at the hearing the applicant adopted that statement and added that she was the victim of police harassment and had no mental health problems. She had made the suicide threat because she was being harassed, the police had been going on and on. Her blood tests found nothing wrong, but the police had told her that she needed to go to hospital.

18. At the hearing for VN’s charges, Magistrate Gibson had been satisfied with his conduct and placed him on a s 9 bond with no reporting conditions.

19. The applicant said her other son, NN, had kept firearms on the property for five years before the incident and there had been no instance of untoward behaviour. The three of them had lived together.

20. Cross-examined by Ms Zinn, the applicant said that there had been tension because of VN’s fiancée, as the applicant did not want her in the house. She had told NN to call the police to settle VN down, but it was a bad mistake. He had been drinking at the time, but ceased consuming alcohol from that day. Nowadays he does not drink at all, and before that seldom did. He did, however, drink more when he was with his ex-fiancée. They broke up that day and she went home (and is now overseas). He had undertaken anger management counselling as directed by Magistrate Gibson (exhibit A1, annexure A, p 2).

21. Previously he had not been violent towards her or anyone else. Her attention was drawn to the passage in the internal review reasons stating that she had told police that she feared VN would kill her and NN before killing himself, and had attempted to hit and kill NN many times in the past, requiring her to intervene, and a few weeks earlier in the course of an argument over his fiancée he had picked up a knife and threatened to kill himself if she were to call the police.

22. She replied that there had been disagreements between them now and then, and it was just a matter of interpretation. As to his attempts to kill NN, she said it was different when he was with his girlfriend. He now lives with them, cooks and cleans. After the body-worn camera recording (exhibit R4) was played, in which she had expressed a fear that VN would kill her, she replied that he was excellent until he became involved with his girlfriend. She had changed him, turned him into “a monster”, and he was drinking. But before and after that involvement he had been very good.

23. When it was put to her that he could become involved with another girl who could cause him to revert to that behaviour, she said it was not possible, because she had raised him and knew him better.

24. She was then asked about the incident on 24 July 2023 (event E 631437791, exhibit R1, p 73) in which she had told police she was going to kill herself and would not for a time admit officers into the building, but ultimately did allow them in and was taken to Blacktown Hospital for mental health assessment. She agreed that she had made threats by telephone and in person when police attended, but said she had just taken her medication and the police officer was harassing her. She aggravated her in connexion with arranging another hearing date. “If harassed, I will say such things”, but she had told them there was nothing wrong with her.

25. She had received the Firearms Registry letter of 10 July 2024 seeking medical information and agreed that it had asked nine questions. She had supplied the general practitioner’s certificate (id., 5) which said she had no mental health problems, so there was nothing to write up. Consequently she did not need a specialist. If the police wanted her to see a specialist they should refer her to a psychiatrist or psychologist. But Bankstown hospital had discharged her after the incident (exhibit R2, p 12). It would have been a waste of resources for her to see a specialist.

26. She was not concerned that living with VN would raise dangers if she were to possess firearms. There had been no issues with him, only for a few weeks when he was with his girlfriend. It was pointed out to her that during the 26 June 2023 incident, NN had dialled 000 at her request and had gone outside to the back shed where he kept his firearms, in order to ensure that VN did not try to access them. She replied that he could not access the firearms, as they were kept in NN’s safe storage, which had passed inspection. NN had moved out in April 2024 and now kept his firearms at his own farm at Emmaville. There were no guns at home now.

Applicant’s submissions

27. The applicant filed three documents, respectively dated 16 October 2024, 15 November 2024 (exhibit A1) and 25 November 2024 (exhibit A2). In addition to submissions on matters of fact in issue, they consist of numerous allegations of improper conduct and breaches of duty by the respondent’s officers and advisers, representations of fact, discussion of matters not directly relevant to the issues, semantic criticisms and questions directed to the respondent, some of them rhetorical and some not.

28. Thus, the letter of 16 October 2024 asks inter alia why Const. Ayers had telephoned her on 24 July 2023 without a valid reason, why she had telephoned to arrange another court date, allegedly defying a direction by the magistrate, why the officers who had jumped over her back fence after her telephone conversation with Const. Ayers, thereby damaging her gate, had not been charged with malicious damage, why the respondent had not accepted the results of her blood test, thereby engaging in sheer harassment, and why the respondent had not arranged for her to consult a mental health specialist.

29. The letter also alleged that she had been defamed in the police reports and asked why the reports referred to “several AVOs” when there had only been one AVO, which had been amended (this was followed by an excursus on the dictionary meaning of “several”). Further, as the police were stating that “I have no right for vermin control on my rural property”, would they pay for vermin control at her rural property and eliminate all vermin so that she could live there? It also asked “Where is the duty of care and diligence for protecting human life against wild and dangerous animals? As a mother – how am I to feel safe when my children’s lives are in danger due to the nature of animals on the property?”

30. Again, the applicant contends that “NSW Police/respondent is very concerned about public safety – why not Narayan family be provided safety from Wild vermin/animals. Narayan family is not public and are not human beings – this is what ultimate in direct response from NSW police is” (emphasis and bolding in the original – exhibit A2, p 10). The applicant also asks why the police had made a determination about her mental health and overruled a medical professional (her GP) report and asked for a specialist report, while she has none.

31. The contention continues: “This is sheer harassment from NSW Police Force based on their assumptions and not listening to what I, black ethnic has to say… This is purely black ethnic profiling” (letter of 15 October 2024, p 5).

32. It is clear that the applicant feels very strongly about the case, and that is reflected in the complexity of her written submissions. A practical approach to this material may be to seek to extract from the documents the identifiable submissions relevant to the issues and the evidence.

33. Thus, the applicant contends that VN had no history of violence before or after his involvement with his ex-fiancée, under whose influence he had begun drinking and had turned into “a monster”. Except during that period there had been no untoward incidents, including during the 6 or 7 years that his brother NN had kept firearms on the premises. VN had been caring for NN and herself since the age of 9 years.

34. When Const. Ayers had telephoned on 24 July 2023 about another court date, she had said that she had taken her medication and antibiotics and wanted to go to sleep. Const. Ayers had sent police to her property, and officers jumped over the fence and gate to access the property without a warrant or medical authorization, damaging her automatic gate motor.

35. Police had required her to undergo a blood test at Bankstown Hospital, the results of which were normal. The respondent had disregarded that result, as well as her GP’s report, calling for a specialist report. The police had no qualifications to make any medical assumptions and could not overrule her GP’s report. This constituted harassment and black ethnic profiling.

36. Fairfield Local Court had deemed VN to be of low risk to the public. Magistrate Gibson had said, “this matter is deemed to be extreme low risk of re-offending and as such now mandatory reporting conditions were/are placed”.

37. Wild dogs had chased VN at their rural property. He got lost and was bitten by wild dogs, which had placed him in a life-threatening situation, as there are inland taipans on the property. First responders were surprised that VN was found alive, although injured by wild dog bites and a fall from his quad bike, after being lost for more than 12 hours.

38. Despite the all the evidence that police had taken her to Bankstown Hospital on 24 July 2024, the summons had been directed to Blacktown Hospital. This was a misuse of information held by police and their representatives being sent to another hospital that had nothing to do with her, as she had never been to Blacktown Hospital. This was “Sheer vilification to undermine black ethnic female’s integrity basing on their assumptions only” (emphasis in the original).

39. The AVO had been issued as a formality, as there was little concern at the Local Court, which stated on the AVO “[VN] is permitted to be in possession of not only Firearms but Prohibited weapons (appointments)”, which proves the concerns of the above-mentioned to be void. The AVO had been varied on 13 May 2024 to remove the alcohol prohibition order (exhibit R1, pp 50 – 51).

40. As the Local Court had been satisfied in the AVO that there was little or no risk in VN being in possession of firearms, the respondent was overriding a section of the Firearms Act. The New South Wales Sheriff’s office had attested to VN providing an outstanding and exemplary service in executing security duties (Senior Magistrate Stapleton). He had been placed on a s 9 good behaviour bond with no reporting conditions.

41. The applicant had said on the audio recording that “[VN] is a good kid”, but the respondent had failed to mention or acknowledge that fact. They took account only of negative points and nothing of the positive. He had never had any negative record previously, just the one incident on 26 June 2023 which was out of character for him. The problems with his ex-fiancée had been resolved as she was no longer in Australia and there was no communication or contact between them.

27. The respondent had infringed her right of personal privacy by issuing a summons to the incorrect health facility, Blacktown Hospital instead of Bankstown Hospital. That was a breach of her personal information, compromising her safety by releasing her information to individuals or organizations that she had no interaction with.

28. The respondent maintained that the licensing regime is predicated on protecting the public and is not about punishment, but she was clearly being punished by having an unblemished record with no mental history. The registry was punishing her as they did not abide by the Fairfield Local Court outcome and were making a mockery of the New South Wales judicial system. The local Court had deemed VN to be an extremely low risk of reoffending and accordingly had imposed no reporting conditions and allowed him to be in possession of prohibited appointment (equipment) and firearms for employment purposes.

29. The police and the respondent had made numerous errors in the course of the matter, showing their reasoning to be inaccurate and misleading.

30. In oral submissions at the hearing the applicant reiterated those points, arguing that the respondent had estimated risk in an exaggerated manner and kept going on about things that had been finalized. There was no evidence that she would give access to firearms to any unauthorized person. The bite by a wild dog that VN had sustained could have been fatal because of the use of 1080 on the property. The closest hospital is 170 km away. The police had requested a report from her GP but had not accepted it, although her response had been correct. She had no mental health record and the police were controlling her by way of assumptions.

31. VN is a good kid who presents no risk, but his behaviour had changed when he was with his ex-fiancée. He had never breached any safety laws. He had received supporting references, including from the Sheriff’s department. The fact that on discharge from hospital she had been released into VN’s care showed that he did not pose a risk to public safety.

32. The police request for a mental health assessment (exhibit A1, annexure D) had said that she had been “feeling isolated and alone”, but Bankstown Hospital had said that she presented “with no previous mental health history, lives in own house with X2 adult son. She works full-time as admin officer” (exhibit R2, p 8). The report noted that she claimed she was being harassed by Fairfield police as they had lost the case. She was currently not under any psychiatric medications (exhibit R2, p 9).

33. Const. Ayers had defied the judicial system by arranging another court date. She was being treated as not being human and was being punished. The Local Court had said VN presented a low risk and had only one offence on his record, hence the s 9 bond. He was specifically allowed access to firearms for his employment. The respondent had incorrectly issued a summons to Blacktown Hospital instead of Bankstown Hospital, thereby breaching her confidentiality. She was being subjected to discrimination as an ethnic female.

34. There were errors in the respondent’s legal documents. They were just going on and on about negatives and were hiding behind legal terms. They were refusing to abide by the outcome of the legal proceedings. Magistrate Gibson had said that one mistake should not eliminate a young person’s life. He had said there was no risk because the offence was committed when he was intoxicated, and now he does not drink. But the police say he is not a human being and can do nothing good.

35. Her GP had refused to prepare a detailed mental health report because she did not have any mental health problems and was not under mental health medication. The respondent simply wanted to make fun of her, based on assumptions. She would act responsibly if given access to firearms. She was being penalized as nobody would answer her questions.

Consideration

Approach

51. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner’s decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.

52. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the Civil and Administrative Tribunal Act 2013 (CAT Act) (s 30) and the Firearms Act, including the Commissioner’s refusal of a licence or permit: s 75(1)(a). The tribunal is to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

53. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3)(a) states that a licence must not be issued “unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace”. Section 11(4)(a) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s way of living or domestic circumstances.

54. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. They do, however, provide guidance for the tribunal’s exercise of jurisdiction.

Public interest

55. The main ground on which the respondent argues for licence refusal is that it would be contrary to the public interest for the applicant to hold a licence, within the meaning of s 11(7). In this case that ground overlaps with the ground in s 11(4)(a), that there is reasonable cause to believe that the applicant might not personally exercise continuous and responsible control over firearms because of her domestic circumstances.

56. The “public interest” factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.

57. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant’s personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.

58. In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [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. Ward was a case on the “fit and proper person” test, but the formulation has been held to apply to the public interest test under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].

59. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police [2013] NSWADT 5 that the Ward decision itself had set aside the Commissioner’s decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. “The ‘virtually no risk’ comment was made in the context of the ‘fit and proper person’ test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests” (at [7]).

60. Other cases have pointed out that 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, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] – [66] 66].

61. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that “In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration”. Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].

Incident 26 June 2023

62. The first matter on which the respondent relies in support of licence refusal on public interest grounds is an incident that occurred at the applicant’s home on 26 June 2023 involving herself and her son VN (event E 95676778, exhibit R1, pp 62 – 64). Her elder son, NN, was also present. A discussion took place in connexion with her refusal to allow VN’s then fiancée in the house. VN then telephoned his fiancée and put her on speaker, telling the applicant to speak with her, but she did not wish to do so. VN became angry, and pushed her backwards by forcing his hand against the side of her neck. The applicant picked up the telephone in order to record VN’s behaviour, but VN seized the telephone and threw it, causing it to strike and damage a glass light fitting. He then seized the applicant by her right forearm and wrist and applied a wrist lock, over her protests. He pulled her to the floor, causing further pain, and she called to NN to contact the police.

63. NN called 000 and went outside to the rear shed where he kept his firearms, to ensure that VN would not try to access them. When the applicant stood up again, VN pushed her back again and continued to demand that she speak with his fiancée. The applicant became overwhelmed and briefly fainted while still in the armchair, whereupon VN threw water over her face, continuing to push the applicant back into the chair.

64. When he realized that police had been called, he approached the living room wall and struck his head against it, breaking the plasterboard and causing an indentation. He said to the applicant, “See what you made me do? I’m going to tell the Police you did this to me”. When police arrived they activated their body-worn video and took VN to the front of the property, where he was cautioned and questioned in relation to the incident. He denied having assaulted his mother and said “I just wanted to sort it out with her tonight. She pushed me, and I fell back into the wall”. He said he had consumed alcohol that evening, and police could smell liquor on his breath.

65. Police obtained a domestic violence evidence in chief (DVEC) video with her and a written statement from NN. During the DVEC interview, the applicant expressed extreme concerns that if released, VN would kill both her and NN, before killing himself. The applicant does not challenge the accuracy of the event report narrative but, as is set out below, argues that it was an isolated incident of no continuing relevance.

66. On 24 July 2023, VN was found guilty without conviction of destroying or damaging property to a value of less than $2000 (DV) and common assault (DV). He was sentenced to a CRO for a period of two years, commencing on 24 July 2023 and expiring on 23 July 2025. It was conditional on his attending anger management counselling (exhibit A1, annexure A).

67. The respondent submitted that VN’s conduct was extremely serious. The event report for the 26 June 2023 incident indicated that NN, who had been a licence holder since 2014, went outside to the back shed where he kept his firearms to ensure that VN did not try to access them. That reinforced the concern that the applicant could not personally exercise continuous and responsible control over her firearms because VN resides with her.

68. The event report also stated that during the DVEC recording, the applicant had expressed “extreme concerns” that if released, VN would kill both her and NN before killing himself. The domestic circumstances between the applicant and VN mean that there is an unacceptable risk to public safety from the applicant’s possession of firearms and the tribunal has cause to believe that the applicant may not personally exercise continuous and responsible control over firearms, in view of the domestic violence incident of 26 June 2023.

69. The respondent submitted that there was no evidence as to whether the issues between the applicant and VN relating to VN’s girlfriend had been resolved, and the tension thereby caused had ultimately been the trigger for VN’s assault on the applicant (exhibit R1, p 62). For those reasons, the incident of domestic violence and the applicant’s fear that VN would kill her and himself gives reasonable cause to believe that the applicant might not be able personally to exercise continuous and responsible control over her firearms and that a person who is not licensed to hold a firearm, namely VN, might handle them. It could not be said that there was virtually no risk to public safety if firearms were stored at or brought onto the property.

70. In cross-examination the applicant said that VN had not previously been violent towards her or anyone else, apart from a “disagreement” now and then with his brother NN. Reminded of her statement that VN had struck and tried to kill his brother, she replied that it was a matter of interpretation and that he had been different when he was involved with his ex-girlfriend. He now lives with them and does a great deal of the cooking and cleaning.

71. Referring to her expressed fear recorded on the body-worn video (exhibit R4) that he might kill her, she said that he had been excellent until he had been with his ex-girlfriend, as she had involved him in drink and turned him into “a monster”. He had changed while he was with her, but before and after that he was very good. He had broken up with his ex-fiancée on the day of the offence. She had returned home and now lived overseas without having any contact with VN. She did not believe that such behaviours could recur if he were to be involved with another girl. VN had also ceased consuming alcoholic beverages from that date.

72. The applicant referred to the sentencing comments of Magistrate Gibson at Fairfield Local Court, in which she said he had stated “this matter is deemed to be extreme low risk of re-offending as such, no mandatory report conditions were/are in place and allowed to be in possession of prohibited appointment and firearms for employment”. His Honour had said that one mistake should not eliminate a young person’s life. He had said there was no risk because the offence was committed when he was intoxicated, and now he does not drink. No transcript of the magistrate’s comments is before the tribunal, but the general correctness of the applicant’s description of them is not disputed.

73. His Honour had said, “[VN] poses an extremely low risk to the public as he has a very heavy deterrent to reoffend given his previous employment with AFP (Australian Federal Police) with an Operation Protect award given by the Australian Federal Police and being a sworn law enforcement officer (NSW Sheriff)” (exhibit A2, p 8).

74. Similarly, the applicant said, the Local Court had received a number of highly supportive character references, including one from the Sheriff’s department. The New South Wales Sheriff’s office had attested to VN providing an outstanding and exemplary service in executing security duties (according to a Senior Magistrate Stapleton) (exhibit A2, p 6). Copies of the references are not before the tribunal but their tenor is not disputed. The applicant indicated that is currently still employed as a sworn sheriff’s officer and, again, although that statement was not documented, neither was it challenged.

75. The applicant submitted that the issues arising from the 26 June 2023 incident had been fully dealt with by Magistrate Gibson, that the whole matter had been finalized and that by opposing her licence application the respondent was defying the New South Wales judicial system. That assertion, however, is based on a misapprehension. The firearms licensing regime is separate from the criminal justice system and is not punitive in nature. Again, the applicant is seeking merits review, which is concerned with actual conduct, and the fact of prior conviction or acquittal is not decisive: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30].

76. The applicant stressed that VN is “a good kid” and criticized the police for taking insufficient account of his positive qualities. He had not been violent towards in anyone before or since the incident in question. She was, however, somewhat evasive when asked about her claim that VN had repeatedly struck NN and attempted to kill him, saying that it was a matter of interpretation and that his acts of violence towards NN occurred while he was involved with his ex-fiancée. That situation had been resolved as they had broken up on the day of the incident and she had returned home, and now lives overseas.

77. The applicant submitted that the police were under a duty of care to ensure that she could safely live on the property with her family and that if they would not permit her to keep firearms, they should arrange to protect her from the dangerous wildlife on the property.

78. Police are under a statutory obligation to keep the peace, but it has never been held that they are under a legal duty to protect particular individuals, except when there is a special relationship between the officer and the individual, such as when a person is in custody. Indeed there is persuasive United Kingdom and United States authority to the contrary: Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [70], [121]; Hill v Chief Constable Of West Yorkshire [1989] AC 53, 63-64; Warren v District of Columbia (1981) 444 A 2d 1; Deshaney v Winnebago County Department of Social Services (1988) 489 US 149.

79. VN is a man aged 29 who has no criminal history apart from the incident on 26 June 2023. He has no record of involvement with drugs and apart from when he was with his ex-fiancée, no history of alcohol abuse either. There is no suggestion of any unlawful handling of firearms, including during the period of between 5 and 7 years when NN stored his licensed firearms in the shed behind their house.

62. He remains subject to the CRO until 23 July 2025. While it would not normally be appropriate to issue a licence to a person still subject to a CRO, VN is not applying for a licence. Further, it appears that he remains employed as a sworn sheriff’s officer, a position of real responsibility in which he is authorized to have access to firearms and other law enforcement equipment for employment purposes.

63. The applicant is a woman aged 60 who lives on a rural property with, until recently, her two adult sons (NN has recently moved out to his own farm at Emmaville). She has no criminal history and is not the subject of any police intelligence reports. There is no suggestion of any involvement with drugs or of excessive drinking. In the 36 years she has held a driver licence she has incurred two minor infringements. Apart from a tendency to make extravagant and unsupported allegations of harassment, ethnic discrimination and racial profiling, she appears to be a reasonable, responsible person and a woman of some determination.

64. The applicant stresses that there is no evidence that she could not be relied upon to maintain continuous control over firearms, and that contention appears to be correct. I therefore conclude that the applicant’s domestic circumstances are not such that s 11(4)(a) or s 11(7) operates to preclude the issuance of a licence to her, and I so find.

Threats of self-harm

83. On 24 July 2023, the day of the Local Court hearing, the applicant told police on the telephone that she was going to self-harm by hanging herself or overdosing and that she would write a letter explaining. Police promptly conducted a welfare check at her home at Bonnyrigg Heights, during which she told police she was going to kill herself and would not allow them into the building. After some prompting, police were admitted to the premises, scheduled her under the Mental Health Act 2007 and she was conveyed to Blacktown Hospital (event E 631437791, exhibit R1, p 73).

84. On 1 May 2024 she applied for a category A firearms licence as an owner of rural land at Emmaville. The Firearms Registry refused that application on 6 June 2024 on the basis of her domestic circumstances, a ground that has been dealt with above. The applicant applied for an internal review on 20 June 2024 and on 10 July 2024, the registry wrote to her requesting additional information from her general practitioner, psychologist or psychiatrist addressing the concerns held by the respondent in relation to her mental health. The letter referred to the incident of 24 July 2023 and requested detailed information to assist the registry in determining the applicant’s suitability to hold a firearms licence (id., 52 – 55).

85. The applicant submitted a brief letter from Dr V Maheswaran, a general practitioner at Liverpool. Dated 11 July 2024, it states that she had been treating the applicant for the last 30 years and she was not suffering from any mental illness. She had never suffered from any mental illness nor taken any medication for it. In its statement of reasons for affirming the refusal decision dated 2 August 2024 (id., 3 – 4), the respondent pointed out that the letter did not address the serious concerns raised by the registry relating to her comments of suicide. Nor did it sufficiently deal with the questions put forward in the registry’s request for information.

86. At the hearing the applicant conceded that she had made the comments alleged, both on the telephone to Const. Ayers and in person. She said she had done so because she felt the officer was harassing her, as she had taken her medication and wanted to rest. Const. Ayers was harassing her about another hearing date, and “If harassed, I will say such things”. But such threats, once made, cannot be ignored and her claim at the time that there was nothing wrong with her could not resolve the matter.

87. Dr Maheswaran’s letter had said there were no mental health problems and therefore there was nothing to write up. Bankstown Hospital had discharged her to VN after evaluating her, finding that her suicide or self-harm risk was low (exhibit R2, p 12). Consequently, the applicant submitted, no specialist consultation was needed. She contended that if the registry wanted a specialist’s evaluation “to satisfy their curiosity/opinion, they should refer [her] to a specialist themselves” (emphasis in the original).

88. That however, is not the respondent’s role. When the respondent holds valid concerns about the applicant’s mental health following a very serious suicide threat, it is for the applicant to adduce whatever evidence she considered necessary to persuade the tribunal that it would not be contrary to the public interest for her to be issued with a licence. A person’s mental health is relevant to public safety, which is at the heart of the licensing regime. Risk to the public includes risk to the applicant herself (Kavalieratos, [74]).

89. While it may be possible that the applicant’s threats were simply a reflection of her rather grandiloquent way of expressing herself, the threats were uttered twice, on the telephone and in person, and constitute legitimate grounds for concern. The applicant contends that her GP’s letter stating that she is not suffering, and never has suffered in the last 30 years that the GP has been treating her, from a mental health problem is sufficient to settle the matter. She argues that the Firearms Registry is not qualified to overrule that medical opinion.

90. But as the internal review reasons point out, the letter does not refer to the serious doubts raised by the Firearms Registry relating to her comments about suicide by hanging or overdose. It seems improbable that a medical practitioner giving an opinion on a person’s mental state would simply ignore threats of that nature. That raises a question whether the applicant actually informed her GP about the threats (that point was not, however, put to her). If she did not, the GP’s letter would be of little assistance in resolving the issues in this case.

91. In any event, the certificate as it stands is insufficient to alleviate concerns about the applicant’s mental health and risk to public safety, including her own safety, if she were granted a firearms licence. An evaluation by a mental health professional would be needed if those concerns were to be allayed.

Conclusion

92. It is in the public interest for law-abiding persons living on the land to have access to long arms for protection of the environment and of primary industry, but that factor cannot prevail over the Firearms Act’s explicit focus on public safety. I therefore conclude that by reason of unresolved concerns about her mental health, it would not at present be in the public interest for a licence to be issued to the applicant, and I so find. The decision under review must be affirmed.

Order

93. Decision under review 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: 03 December 2024