Puckeridge v Commissioner of Police, NSW Police Force

[2015] NSWCATAD 42

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Puckeridge v Commissioner of Police, NSW Police Force [2015] NSWCATAD 42
Hearing dates:	10 November and 3 December 2014
Decision date:	16 March 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	NS Isenberg, Senior Member
Decision:	The Commissioner's decision under review is set aside. The Applicant is to be issued with a Category A licence in accordance with his application.
Catchwords:	Firearms Act 1996; firearms licence application; fit and proper person test; public interest test; attempt to commit suicide or cause self-inflicted injury.
Legislation Cited:	Administrative Decisions Review Act 1997 Firearms Act 1996 Mental Health Act 2007
Cases Cited:	AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5 Aubrey v Commissioner of Police [2005] NSWADT 266 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Haitzler v Commissioner of Police, NSW Police Force [2014] NSWCATAD 60 Housea v Commissioner of Police, NSW Police [2014] NSWCATAD 54 Livadaru v Commissioner of Police [2008] NSWADT 160 Ward -v- Commissioner of Police [2000] NSWADT 28
Texts Cited:	Mental Health Rights Manual of the Mental Health Co-ordinating Council of New South Wales
Category:	Principal judgment
Parties:	Raymond Charles Puckeridge (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel: J Mattson, solicitor (Respondent) Solicitors: R Puckeridge (Applicant in person) B Perry, Commissioner of Police, NSW Police Force(Respondent)
File Number(s):	1410429

Judgment

Background

1. The Applicant applied to this Tribunal for a review of a decision by a delegate of the Commissioner of Police (sometimes called the Respondent in this decision) to refuse his application for a firearms licence for sport/target shooting (the Decision).

Jurisdiction of the Tribunal

2. The Tribunal is empowered to review the Decision (s. 75 (1)(a) of Firearms Act 1996 (the Act). Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) requires the Tribunal, in determining an application concerning an administrative reviewable decision, to decide what the correct and preferable decision is having regard to the material then before it, including material not previously available to or considered by the administrator, and authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision the Tribunal is to either make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision.

Material before the Tribunal

3. The Applicant, who represented himself, relied on:

1. a statement he filed with the Tribunal on 10 October 2014;

2. a letter from his aunt Victoria Puckeridge;

3. a response by Teresa Slaviero, psychologist, to a risk assessment questionnaire, received by the Tribunal on 30 September 2014;

4. a reference by the Applicant’s employer, Mr Gavan Bell, submitted during the resumed hearing on 3 December 2014; and

5. oral submissions by the Applicant. The Applicant also gave oral evidence and was cross-examined.

4. The Respondent relied on:

1. a bundle of documents called “Brief of Evidence” filed with the Tribunal under s. 58 of the ADR Act;

2. a statement by Constable Mitchell Barnes dated 29 October 2014 and a supplementary statement by the Constable dated 26 November 2014. The Constable also gave oral evidence;

3. an Outline of Submissions dated 6 November 2014 (RS); and

4. oral submissions by Mr Mattson.

5. References in this decision to quotes from numbered paragraphs in relation to submissions by the Respondent or Mr Mattson on behalf of the Respondent are all from RS unless stated to the contrary. References to numbered paragraphs in relation to evidence by Constable Barnes all relate to his first written statement.

The Respondent’s case

6. The Commissioner submitted at [2] in RS that the refusal to grant the licence was justified because:

1. 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: s. 11(4)(b) of the Act; and

2. it was not in the public interest for the Applicant to be issued with a firearm licence: s. 11(7) of the Act.”

7. In summary, the Commissioner’s Outline of Submissions asserted that public safety is to be given paramount consideration; a firearm licence is a privilege and not a right; detailed several events concerning the Applicant involving an alleged attempted suicide or self-inflicted injury and several incidents where the Applicant was aggressive and violent; and stated that the Applicant was not frank and honest in his licence application in that he had not disclosed his attempt at self-harm. I use the term self-harm to denote both suicide and self-inflicted injury.

Consideration

8. In order to consider the Application to review the Decision it is necessary to consider the evidence before the Tribunal including the events relied on by the Commissioner and the relevant law.

Legislation

9. Section 11 of the Act relevantly provides:

11   General restrictions on issue of licences

(1)  The Commissioner may issue a licence in respect of an application, or refuse any such application.

…

(3)  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

….

(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:…

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

10. (7)  Despite any other 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.

11. These are not adversarial proceedings where the Applicant carries an onus of proof. It is a review of the merits of the Commissioner’s original decision to refuse the Applicant’s application for a firearms licence. The Tribunal’s task is to make its own decision in place of the Commissioner’s. (Housea v Commissioner of Police, NSW Police [2014] NSWCATAD 54 at [78].)

Refusal of licence application

12. The Applicant was advised that his application was refused by letter dated 10 April 2014 from a delegate for the Commissioner. The reasons given in that letter for the refusal are as follows:

“information maintained by the New South Wales Police Force … indicates that on the 13 April 2011 police were called to Townson Avenue, Minto after it was reported you were hanging up from an overhead foot bridge that crosses the road.

Upon the arrival of police you climbed back over the hand rail, walked off the foot bridge and waited for police. You told police you were upset with your girlfriend and needed to talk to someone about your mental state. You were conveyed to Campbelltown Hospital by ambulance where you were scheduled under the Mental Health Act 2007.

Accordingly, due to your previous attempt of self-harm, I am satisfied that you may not personally exercise continuous and responsible control over firearms. I am further satisfied that it would not be in the public interest for you to be issued a firearms licence which authorises the possession and use of firearms.”

Internal review

13. On receipt of the refusal of his application, the Applicant requested an internal review of the decision. On review the refusal of the application was affirmed. The review decision was conveyed to the Applicant by a letter “Internal Review-Statement of Reasons” dated 16 July 2014.

14. In addition to the reference to the alleged attempt at self-harm to which the reviewer gave “significant weight” and stated “you were seen hanging from the bridge being held by another in order not to fall”, the reviewer referred to four other occasions on which police had been called. Those occasions, which are outlined in more detail below were:

1. On 17 April 2011 the Applicant assaulted 2 males in separate events a few hours apart.

2. On 21 January 2012 the Applicant was involved in a verbal argument with his brother in relation to a toy gun. The Applicant was then involved in an altercation with his father and the neighbours called police.

3. On 3 February 2013 while employed as a kitchen hand at a restaurant the Applicant had an argument with the head chef / manager. The argument included verbal abuse of the chef, kicking some chairs, punching a white board and challenging the chef to a fight.

4. On 26 October 2013 the Applicant had a fight with his father at his father’s home. The fight arose from an argument over money.

15. It seems to me that the events relied on by the Commissioner to support the refusal to grant a licence fall into four distinct groups. They are the fallout from the break-up of a relationship, events concerning the Applicant’s father, an incident involving part time employment while he was at school and the allegation at [28] [29] and [49.4] in RS that the Applicant was not frank and honest in his application for a firearm licence.

Breaking up of a relationship in April 2011

Attempted self-harm on 13 April 2011

16. Constable Barnes statement of 29 October 2014 was to the effect that on 13 April 2011 police received a call at about 8:45 AM from the ambulance service radio about a person being outside the railing on an overhead pedestrian footbridge. Constable Barnes and another constable attended the location and arrived shortly after the radio call. He said the footbridge was approximately 10 m high over Townson Avenue.

17. The statement included the following:

11. I remember walking up the arched part of the bridge and I saw a young boy, who I now know is the Applicant, Raymond Puckeridge, standing on the outside/ wrong side of the railing about half way along the bridge. Raymond was being held by the collar by another person who was standing on the bridge on the inside/ correct side of the railing. I do not know how old the boy or young man was who was holding Raymond by the collar.

12. There was another young boy below the bridge on Townson Avenue looking up. I do not know who he is.

13. As Senior Constable Hoskins walked towards the middle of the bridge, Senior Constable Hoskins said words to the effect: "don't let him go".

14. From the way Raymond was standing, where he was standing, and how he was being held, it appeared he was in a position to jump off the bridge.

15. Raymond saw us and then climbed back over the railing and started to walk towards us. The other man said something like "You've got it sorted' and then left.

16. I can't recall what we first said to Raymond. I think it may have been something like "why are you on the wrong side of that railing?"

17. I do remember Raymond was crying and was upset. We walked him to the police vehicle and we sat him on the back edge of the open police cage in the vehicle.

18. Both Senior Constable Hoskins and I asked Raymond for some particulars. He volunteered his name, age and address without any difficulty.

19. I remember Raymond said something about his girlfriend, like "my girlfriend likes some other bloke now and she doesn't like me anymore, and I really like her".

20. Raymond said to Senior Constable Hoskins and I, "I had no intention of jumping off the bridge I just need some space". Senior Constable Hoskins and I both explained to Raymond that due to his actions of being up so high and on the wrong side of the railing we need to take him to hospital to talk to someone.

21. I remember we waited for about 20 minutes before the ambulance arrived. I said to him "an ambulance is on the way". He was completely compliant. We talked, mainly about his girlfriend but I can't remember the precise details. I would describe him as being lost, sad and disorientated. However he seemed comfortable talking to both myself and Senior Constable Hoskins. During this time we discussed that he would need to talk to someone about how he's feeling.

22. The boy who was down on the street I remember asking him to go away. I cannot recall when we did this but I remember thinking he was just sticky-beaking.

23. When the ambulance arrived I remember the ambulance officers said "this sort of incident requires that we take him to the hospital under the Mental Health Act".

24. I recall either I or Senior Constable Hoskins said, "the ambulance is going to take you to the hospital so you can see a doctor". Raymond did not resist; he got into the back seat of the ambulance.

25. Senior Constable Hoskins and I followed the ambulance to Campbelltown Hospital. Inside the hospital Raymond was directed to the triage area of the emergency room. We were at the Hospital for about ten to fifteen minutes before we left and returned to the Police Station.

26. I recall making a COPS report a few hours afterwards…..

27. Raymond Puckeridge was compliant the whole time. However, he was upset and crying. I cannot say what his intentions were. However, he had climbed over the railing and put himself in a dangerous position; and was being held by another person. Raymond was in the position to jump.”

18. The record of Computerised Operational Policing System (COPS) event E44344303, in the s. 58 documents, was created and updated by Constable Barnes. It outlines that police were called to a location in Minto following a report regarding …a male hanging from an overhead footbridge that crosses the street. The COPS event also stated that after police arrived they noticed a male (the Applicant) who was on the outside of the hand rail in the middle of the foot bridge being held by another male. The Applicant walked off the foot bridge and waited for police to talk to him. He said he was upset with his girlfriend and needed some space. He also said that he had no intention of jumping off the footbridge but agreed that he needed to talk to someone about his metal (sic) state. The Applicant was conveyed to Campbelltown Hospital by ambulance and police followed them to the hospital to schedule him. The scheduling was voluntary.

19. In his supplementary statement, which was given after the Constable had been informed of some of the Applicant’s evidence, Constable Barnes said:

1. the bridge may have been 5 m at its lowest point on each side but at its highest point the bridge was at least 7 m.

2. Mr Puckeridge may have been sitting on the railing at some stage before police arrived but he was definitely standing on the outside of the railing when the Constable first saw him.

3. Mr Puckeridge was being held by a man about 20 years old.

4. what he meant in his initial statement where he said Mr Puckeridge was “voluntarily scheduled” to hospital, was that Mr Puckeridge was happy to go in the ambulance to the hospital.

20. The alleged attempted self-harm and the assaults of 17 April 2011 occurred shortly after the Applicant turned 15. His evidence is that he was very upset as a direct result of certain action taken by his then girlfriend.

21. In relation to the attempted self-harm outlined above the Applicant’s evidence is that he wanted his girlfriend to talk with him and called her to meet him on the bridge. He denied that he had hung off the bridge at any time. He said that before the police arrived he was sitting on the bridge railing and had no intention of jumping off. He was being comforted by his younger brother who was hugging him. He was not standing outside the handrail. When the police arrived he climbed back over the handrail and walked towards the police.

22. The Applicant said that he waited with the police until the ambulance came and was then taken to Campbelltown Hospital. While he was waiting with the police, the police told his brother to leave the area. At the hospital he sat around for a while and then had a 10 minute chat with someone from the hospital. He was asked to wait and was moved to an area away from the waiting area. He waited about two hours and then was informed that he could leave.

23. The Applicant strenuously denied both that he had attempted suicide and that anyone was holding him by the collar while he was on the bridge. He acknowledged that it may have looked to other persons as if he was in a position to commit suicide. However he said repeatedly that he had no intention of committing suicide nor did he make any attempt to do so. He now realised that what he had done on the bridge was stupid.

24. I observe that there are discrepancies between the evidence given by Constable Barnes and that of the Applicant. The discrepancies include whether or not the Applicant was standing outside the hand rail when within sight of the constable or was sitting on the handrail and whether the Applicant was being held by the collar by a mature adult male or was being hugged by his younger brother.

25. I also observe that the COPS report written by Constable Barnes refers to the Applicant being voluntarily scheduled under the Mental Health Act and that this reference to scheduling was repeated in the Notice of refusal of the licence application of 10 April 2014, the Statement of reasons in relation to the internal review of 16 July 2014 and the Respondent’s Outline of submissions in this matter.

26. Schedule 1 of the Mental Health Act 2007 provides that 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. I observe that the Mental Health Rights Manual of the Mental Health Coordinating Council of New South Wales provides at 4C.4:

“The process to make someone an involuntary patient is often called 'scheduling' or 'putting someone on a schedule'. This refers to the forms the doctors have to fill out as part of the three steps under the Mental Health Act 2007 (NSW).”

27. There is no evidence, other than that of the Applicant, as to what treatment he did or did not receive at Campbelltown Hospital on 13 April 2011. No hospital or other medical records concerning the Applicant were produced to the Tribunal by the Respondent nor did the Respondent produce any medical or other expert opinions concerning the Applicant.

28. When answering questions I asked of him, Constable Barnes said that Mr Puckeridge was under detention while waiting for the ambulance and that Mr Puckeridge had been ordered to go to the hospital and had complied with that order. This evidence contradicts the narrative by Constable Barnes in the COPS event that the Applicant voluntarily scheduled himself.

29. Having regard to the material before me I find that there is no evidence that the Applicant was “scheduled” under the Mental Health Act on 13 April 2011 or on any other date.

30. I find that the incident of 13 April 2011, including the recent breakup with his girlfriend, the time on the foot bridge, detention by the police and conveyance to and attendance at Campbelltown Hospital involved a traumatic experience for the Applicant. Both the Applicant and Constable Barnes were giving evidence concerning an event which occurred some 3 ½ years before the hearing. I accept that they both gave evidence to the best of their recollection.

31. Background facts provided by the Respondent state that a person was hanging from the overhead bridge. I accept the concern of the police having regard to the report. However I find that the report is no more than unattributed hearsay which is contradicted by sworn testimony and I reject it.

32. I find it highly improbable that a person intending to commit suicide would hang, presumably by his hands, from a foot bridge and a short time later be standing on the foot bridge being held by the collar by a bystander who was standing inside the relevant safety rail. I am not satisfied that the evidence disclosed an attempt by the Applicant to either commit suicide or cause a self-inflicted injury and I so find. Accordingly I reject the Respondent’s submission in relation to the applicability of s. 11(4)(b) of the Act.

Events of 17 April 2015

33. The Respondent submitted at [20] that on 17 April 2011 the Applicant assaulted two young men He was arrested, made full admissions to both assaults, and was issued with a youth caution. The details are recorded in COPS Event No. 44386166.

34. COPS Event No. 44386166 is in the s. 58 documents. The narrative, created by Constable P. Martin, includes allegations that the Applicant assaulted two persons on 17 April 2011, the first at 12.30 pm and the second at 4.46 pm. Each alleged victim was speaking with the same young woman immediately before the assault. In relation to the second assault the COPS event states the Applicant hit the victim “in the head” “about 6 times” with a “metal pole about 25 cms long and 3 cms in diameter”. The victim was then “hit once in the back with the metal pole. This caused lump on (the victim’s) head and a sore back.” The Applicant allegedly grabbed the victim by the shirt. The victim “took his shirt off to get away from (the Applicant).then walked” away.

35. The COPS Event which details the “weapon used” as “club/iron bar /pipe” refers to police taking signed statements from both victims, states that the Applicant took part in a “notebook interview” and “made full admissions to both assaults…however denied using a metal bar (on the second victim) but did state that he used his elbow. It is possible that this could cause similar injuries to a bar.” The COPS event concludes the Applicant “is eligible for a youth caution…”.

36. The Applicant acknowledged in written evidence that as a distraught 15 year old he used violence on two males arising from events concerning a female with whom he had been in a relationship. His evidence was that he lost his temper on the first occasion and knows that what he did was wrong and has sorted this out with the victim. He alleges that he was provoked on the second occasion. He denied using a weapon on either occasion and stated that only fists were involved.

37. The evidence before the Tribunal as to the events of 17 April 2011 comprises COPS Event No. 44386166 and the written and oral evidence of the Applicant. I observe that Constable Martin who created the narrative of the COPS event was not called as a witness, nor were the two victims. None of the signed statements by the victims nor the notebook interview with the Applicant including the “full admissions”, all of which were referred to in the COPS event were produced to the Tribunal. The only injury observed by the police was a single lump on the back of the second victim’s head which Constable Martin observed could have been caused by an elbow.

38. It seems highly improbable to me that someone struck over the head 6 times with a metal bar and once on the back would be able to or could walk away from the event with nothing more to show for it than a single lump on the head. I observe that the Applicant was not charged with any offence arising from the 2 assaults despite the alleged “full admissions”. In the circumstances, to the extent that they differ, I prefer the Applicant’s version of the events rather than that outlined in the COPS event. I also have regard to the Applicant’s age at the time, the period of nearly 4 years which has elapsed since the event and the acknowledgment by the Applicant that what he did was wrong.

Events involving the Applicant’s father

39. Two of the events relied on by the Respondent to evidence aggression, violence and immaturity by and of the Applicant involved the Applicant’s father.

Event of 21 January 2012

40. The Respondent submitted at [21]:

On 21 January 2012 the Applicant was involved in a domestic dispute with his father. The Applicant was 16 years old. The Applicant pushed his father resulting in both the father and the Applicant falling to the ground. Neighbours called the Police however all parties did not want to speak to Police so the matter was not investigated further. The details are recorded in COPS Event No. 47348951.”

41. However the narrative in COPS Event No. 47348951 also states

“Some time during the evening of Saturday, 21 January 2012 (the Applicant) (16 Old) and his brother… (12 Old) have become involved in a Virgo verbal argument in relation to a toy gun they were playing with.

The boy’s father… Has heard the argument and began yelling at both persons stop at this stage the (Applicant) has pushed his father, with the father taking hold of (him) and dragging him to the ground until he has calmed down.

Neighbours have then contacted Police who attended a short time later.”

42. Importantly the COPS event also records “Police are unsure of the reliability of the …information as all parties are unwilling to provide police with any details” and “all (parties) were apprehensive to speak to the Police”.

43. The Applicant’s written evidence of the event was:

“it was just a case of brothers mucking around with a toy gun. as (sic) my father heard us making to (sic) much noise he became verbally abusive and the neighbours called the police in fear for the safety of my brother and myself.”

44. The Applicant gave oral evidence and was subject to cross examination before the Tribunal. No further evidence as to this event was adduced nor did the Applicant vary his written version of the event.

Event of 26 October 2013

45. The Respondent submitted at [25] to [27]:

“On 26 October 2013 Police attended the Applicant's home. The Applicant was 17 years at the time. An altercation had occurred between the Applicant and his father. The father had a small laceration to his forehead. The Applicant appeared to be shaken up. The father stated to Police that they argued about money and the Applicant punched him. The father then put the Applicant in a headlock to stop him.

The Applicant admitted punching his father in self defence. Both parties refused to give statements to Police. The incident was witnessed by Ms Chloe Barrington who made a statement recording that the Applicant had punched his father and that both the Applicant and his father were involved in a scuffle and traded punches. The details of this event are recorded in COPS Event No. 52786933.

The Applicant's behaviour, though in a domestic context, is a continuation of aggressive and immature behavior.”

46. COPS Event No. 52786933 also stated:

1. Ms Barrington was the de facto partner of the Applicant’s father.

2. From another room Ms Barrington heard an argument between the Applicant and his father. She saw the Applicant’s father, Mr Pitt, attempting to push the Applicant out the door, telling him to leave. The Applicant then punched his father. Mr Pitt attempted to grab the Applicant, the Applicant attempted to pull his father outside, the two scuffled, Mr Pitt got the Applicant in a headlock. The Applicant punched his father until his father let him go. Then the Applicant and his father traded punches.

47. Mr Pitt’s evidence set out in the COPS event confirmed that the Applicant punched Mr Pitt when Mr Pitt attempted to push him out of the house. The Applicant’s evidence was that he hit his father in self defence.

48. Police were unable to determine who instigated the incident and cautioned Mr Pitt. Both parties claimed they acted in self defence. Police did not feel there was sufficient evidence to take action against either the Applicant or his father.

Event involving employment

49. The Respondent submitted at [22] – [24]:

“On 3 February 2013 Police were called to a restaurant in Queen Street Campbelltown. The Applicant was employed at the restaurant. The Applicant was 17 years old at the time. The Applicant and the chef, Adnam Elkassir, were involved in an argument in front of other staff and customers. The Applicant told Mr Elkassir in a loud voice that he doesn't pay his staff enough. Mr Elkassir asked the Applicant to leave, at which time the Applicant called him a "dirty Leb". Mr Elkassir grabbed the Applicant by the shirt collar and the Applicant swung his arm releasing himself and then punched the `Sign In' screen.

On 4 February 2013 the Applicant spoke to police and confirmed he had made a scene in front of other staff and customers and called Mr Elkassir a "dirty Leb". Police spoke to Mr Elkassir who informed them that the Applicant become angry and verbally abusive calling him a "dumb fuckin Leb" and that the Applicant became physically aggressive. Mr Elkassir claimed the Applicant kicked a number of chairs around the kitchen and punched the sign-in white board.

Mr Elkassir did not want to pursue the matter as the Applicant was "a 17 year old kid' who he thought to be immature. The details of this incident are recorded in COPS Event No. E50689019.6 The incident is a further example of immaturity and aggression from the Applicant that has occurred consistently in his short life.”

50. In addition to the facts outlined in RS, COPS Event No. E50689019 also stated police contacted staff at the restaurant who verified Mr Elkassir’s version of events.

51. I observe that in relation to this incident the COPS event records that police became aware of the incident when they were contacted by the Applicant in accordance with advice he had received from centre management regarding his dismissal. No evidence was provided to the Tribunal by Mr Elkassir nor by any of the staff referred to by police nor is there any evidence of any statements made by such persons. I note that the police took no action against anyone.

52. The Applicant’s written evidence is that his:

“boss took advantage of my age, dedication to my work when I told him I couldn’t work on school nights he got angry and got into an altercation which I was sincerely sorry and regretful. Both of us were at fault we attended a meeting with management…to apologize for my actions. I was offered my job…back but declined due to the work environment.”

The Applicant was not frank and honest in his licence application

53. At [27] and [28] the Respondent submitted:

“Finally, in the Applicant's application for a firearms licence he was asked:

Have you ever attempted suicide or self-harm...

The Applicant answered no. This answer was false.”

54. Having regard to my finding at [32] above I reject this submission.

Psychologist report

55. The Applicant relied on an undated report by Teresa Slaviero, psychologist, received by the Tribunal on 30 September 2014 (the Report). The Report comprises a risk assessment questionnaire in reference to an application for a firearm licence; an interpretative report dated 4 August 2014 by The Psychological Corporation in respect of a diagnostic examination on 25 July 2014 administered by the psychologist; a post traumatic adjustment scale questionnaire and screening for PTSD, which the Tribunal understands to mean post traumatic stress disorder.

56. In summary the Report outlines that:

1. The Applicant has recorded no previous mental health condition.

2. The Applicant has no current prescribed medication; in the expert’s opinion there is no current risk that the Applicant’s condition or impairment impact on his ability to exercise continuous or responsible control over firearms.

3. The Applicant’s previous history comprises one incident at 13 (sic) years of age where police feared he was going to jump off a bridge in Minto and that was not his intention. The Applicant was distressed at the time due to a breakup with a girlfriend.

4. No relapses are evident at present. Should a change of circumstances occur this would need to be re-evaluated.

5. The Applicant has demonstrated no risk of relapse of any condition nor any mental health concerns.

6. The Applicant was “not a concern or a potential to put public safety at risk” if he was to have possession and use a firearm. He did not pose a threat to the public and had not previously posed such a threat

7. The assessments attached to the report indicated that the Applicant was assessed as having minimal anxiety, minimal current depression, borderline risk for later depression and there was no indication of any risk for later post traumatic stress disorder.

57. I observe that the Report was not provided to the Commissioner in time for it to be considered when the internal review was carried out.

58. Mr Mattson submitted that the Report should be treated with caution as it did not provide a proper assessment of the Applicant’s suitability to hold a firearms licence because the assessment was based on scant background information. Mr Mattson further submitted at [30] that:

1. The Applicant had not obtained treatment from the psychologist.

2. The report incorrectly stated that the Applicant was 13 years of age at the time of “his self-harm incident” when he was actually 15 years of age.

3. The psychologist seemed unaware of the events which the Commissioner regarded as important.

4. The psychologist did not see or have any regard to past medical records and relied on the Applicant’s self-reporting.

5. The Applicant only completed some psychometric testing and had a brief consultation with the psychologist before the report was completed.

6. The psychologist could not provide an expert medical opinion.

7. The Report made a series of assertions, conclusions or statements without any basis or explanation as to the reasoning behind those opinions and could not be of any assistance to the Tribunal.

59. I have had regard to Mr Mattson’s submissions in relation to the psychologist’s report. I observe that:

1. the Respondent did not seek to call Ms Slaviero for cross examination in relation to the contents of her Report, the extent of her knowledge regarding any of the events relied on by the Respondent nor any other matter concerning the Applicant.

2. It may well be, as stated at [43] in the Respondent’s submissions that “Ms Slaviero has not provided any counselling or treatment to the Applicant”. However the Respondent did not provide any evidence to support that submission.

3. The Respondent did not produce any medical records from Campbelltown Hospital or elsewhere to support the submission at [18.5], under the heading “Background Facts”, that the Applicant was “scheduled under the Mental Health Act 2007“ on 13 April 2011. I have found at [27] above that no evidence was produced to the Tribunal that any such “scheduling” occurred. Nor did the Respondent produce any evidence to support the submission at [42] that the Applicant received “treatment in (Campbelltown) Hospital for mental health issues”.

4. The Respondent produced no medical or other expert opinions nor called any expert witnesses concerning the alleged behaviour of the Applicant on which the Respondent relied nor the emotional or psychological condition of the Applicant at the time of the alleged self-harm attempt or at any other time.

60. On the other hand I also observe that no evidence was put to the Tribunal that Ms Slaviero was aware of any of the events relied on by the Respondent other than the alleged self-harm. There was no evidence that Ms Slaviero had treated the Applicant at any time nor that other than for the questionnaires attached to her report, she relied on anything other than self-reporting by the Applicant in forming the opinions she expressed in the Report, nor that she met with the Applicant on any more than one occasion, the duration of which meeting has not been disclosed to the Tribunal.

61. Having regard to the above matters, I accept Ms Slaviero’s report, however I give the report limited weight.

Submissions by the Respondent

62. The Respondent correctly submitted that the underlying principles of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. The principles and objects of the Act are found in section 3 which relevantly are as follows:

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) to facilitate a national approach to the control of firearms.

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

(e)…

(f) …

Public interest

63. Mr Mattson submitted at [2.2] that s. 11(7) of the Act applied and it was not in the public interest for the Applicant to be issued with a firearm licence. Mr Mattson said in RS:

“45 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] the Appeal Panel said that the 'public interest':

is an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual.

46 In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681:

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

47 In Livadaru v Commissioner of Police [2008] NSWADT 160, Deputy President Handley stated at [54]:

In considering the public interest, regard must be had to the underlying principle of the Act, stated in section 3(1), emphasising that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. In Ward, at paragraph 28, Deputy President Hennessy stated in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk."

48 In Aubrey v Commissioner of Police [2005] NSWADT 266, Tribunal Member Montgomery said:

20 Any past and present conduct that may be relevant in deciding whether Mr Aubrey is a person who deserves the privilege of holding a firearms licence must be reviewed. Any propensity towards offending against the law must be regarded as of crucial importance. I have considered all the material presented by the parties, including the confidential evidence on which the Commissioner relies, and I have taken account of the competing considerations.

21 The objects and principles of the Act state that firearms are a privilege and inherent in the requirements is that persons who have access to firearms must act responsibly. Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. The principle issue then is whether there is a risk to the safety of the public if Mr Aubrey retains the licence.

22 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...

49 It is not in the public interest that the Applicant be issued with a firearms licence in the circumstances where:

49.1 The Applicant had, in the not too distant past, attempted self-harm;

49.2 The Applicant has shown a consistent pattern of aggressive and immature behaviour;

49.3 The Applicant has not had sufficient time to mature since the recording of the incidents against him.

49.4 The Applicant was not frank and honest in his licence application.”

64. In dealing with Mr Mattson’s submissions above I respectfully agree with the principles enunciated in the above excerpts from the decisions in Toleafoa and Comalco Aluminium.

65. I observe that the excerpt in Livardu refers to a well known statement by Deputy President Hennessy in Ward -v- Commissioner of Police [2000] NSWADT 28 at [28] concerning there being “virtually no risk”.

64. In the more recent decision of AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5 DP Hennessy clarified the meaning of her statement in Ward when she said:

7 The Commissioner submitted that there must be "virtually no risk" before the Tribunal could be satisfied that AML should retain his firearms licence. That phrase comes from a decision I made in 2000 - Ward v Commissioner of Police [2000] NSWADT 28. I set aside the Commissioner's decision to revoke Mr Ward's firearms licence because I was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence:

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.

8 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.”

67. In Aubrey at [14] Judicial Member Montgomery said that the Commissioner of Police contended that the decision-maker needed to err on the side of caution “and, in effect, guarantee” that threats could not be carried out by the revocation of a firearm licence and that the Commissioner contended at [15] that the public has the right to expect that a firearms licence will only be held in circumstances that cause no risk to public safety”. JM Montgomery said at [22] “the Tribunal must be satisfied that there is virtually no risk to public safety…” However he also said at [22] “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”. This is the same wording adopted by DP Hennessy in the first sentence of [28] in Ward’s case and provides the context in which she used her “virtually no risk to public safety” phrase.

68. In Haitzler v Commissioner of Police, NSW Police Force [2014] NSWCATAD 60 DP Hennessy held that, although there was a theoretical possibility of injury or death to a person arising from the deliberate or accidental discharge of a firearm she was satisfied that in the circumstances there was ”virtually no risk” of such an event occurring. She said at [62] “The existence of a theoretical possibility of injury or death is not sufficient, in my view, to justify the revocation of Mr Haitzler's licence.”

69. The cases show that the public interest test in s.11(7) of the Act, while having regard to the underlying principles of the Act including the overriding need to ensure public safety, requires that there be “virtually” no risk to public safety. In my opinion the test does not go so far as to ensure that there is no theoretical possibility of injury or death nor to guarantee complete public safety nor to require that a firearms licence will only be issued or retained in circumstances whereby there is no possible risk to public safety.

70. The internal review carried out by the Delegate for the Commissioner said at page 4 “should a significant incident free period pass without police record of aggression or violence by you against others, it could be held that you no longer pose a risk (to public safety should you be authorised to possess and use firearms).” Mr Mattson said at [44] “there is not a sustained period to give confidence that there is virtually no risk in the Applicant having a firearms licence. It is simply too soon to be satisfied there is virtually no risk for the applicant to have a firearms licence.”

71. The Respondent provided no assistance to the Tribunal as to what was meant by ”a significant incident free period” nor “a sustained period to give confidence” nor “it is simply too soon to be satisfied”. The Tribunal understands that the Commissioner’s position is that he does not wish to limit his discretion by detailing the meaning of such phrases and would deal with any future application on its merits at the time of the application.

72. The Applicant’s evidence is that while living with his father he did not intend finishing school. After the Applicant stopped living with his father he completed his schooling and gained an ATAR of 75%. Since leaving school at the end of 2013 he has held down a job for 8 months, which continues to the dates of the hearing and his employer provided a very favourable reference. I observe in relation to that reference that there was no evidence that the employer was aware of the allegations against the Applicant and I have given limited weight to the reference.

73. The Applicant informed the Tribunal of his aspirations to represent Australia in shooting in the Olympic Games and this is the reason he applied for a firearm licence. He exhibited some knowledge of the legal requirements pertaining to such a licence and also the competitive process which may lead to Olympic selection.

74. I find that there was evidence of immaturity and aggression exhibited by the Applicant in the events of April 2011, when he was 15. I find that the Applicant exhibited some aggression in relation to the event involving his former employer in February 2013. I also find that the Applicant may have exhibited aggression in October 2013 in the dispute at his father’s home, although I have regard to the Applicant’s statement that he was acting in self- defence.

75. I note that having regard to the relevant legislation the overriding issue for the Tribunal is the need to ensure public safety. In all the circumstances and having considered the evidence before the Tribunal, including the period which has elapsed since the events relied on by the Commissioner and the age of the Applicant at the dates of the events, as well as the submissions by both parties, I am satisfied that there is virtually no risk to the safety of the public, including the Applicant, if the Applicant is issued a firearm licence. Accordingly I am not satisfied that it is in the public interest that the Applicant not be issued a licence in accordance with his application.

76. The correct and preferable decision of the Tribunal is that the Commissioner’s decision under review be set aside and that the Applicant be issued with a category A firearms licence in accordance with his application.

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: 16 March 2015