Quinlan v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 3

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Quinlan v Commissioner of Police, NSW Police Force [2023] NSWCATAD 3

Hearing dates:

27 September 2022

Date of orders:

09 January 2023

Decision date:

09 January 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

The decision under review is set aside.

Catchwords:

ADMINISTRATIVE LAW - Firearms –– objects of legislation – public interest – public safety

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013
Firearms Act 1996
Firearms Regulation 2017

Cases Cited:

Aloschi v Commissioner of Police [2021] NSWCATAD 64

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

AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5

Ayers v Commissioner of Police [2021] NSWCATAD 78

Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234

Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

Hook v Commissioner of Police [2020] NSWCATAD 250

Jameson v Commissioner of Police [2022] NSWCATAD 274

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

Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315

Livadaru v Commissioner of Police [2008] NSWADT 160

Matus v Commissioner of Police [2022] NSWCATAD 111

Petricevic v Commissioner of Police, NSW Police Force [2022] NSWCATAD 24

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

Webb v Commissioner of Police [2004] NSWADT 110

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Christopher Quinlan (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Hartmann & Associates (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/00167412

Publication restriction:

Pursuant to s 59 of the Administrative Decisions Review Act 1997, the Respondent is not required to lodge copies of the documents, (“the Confidential Documents”), described in the confidential statement provided to the Tribunal by the Commissioner (“the Confidential Statement”).
Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act (NSW) 2013, the publication (a) the Confidential Documents and the Confidential Statement and (b) matters contained in the Confidential Documents and the Confidential Statement is prohibited.
Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act (NSW) 2013, the disclosure of (a) any evidence given during the Private Hearing, (b) the Confidential Documents and the Confidential Statement and (c) matters contained in the Confidential Documents and the Confidential Statement is restricted to the Commissioner, the legal representative for the Commissioner and the Tribunal.

REASONS FOR DECISION

1. This is an application concerning the Commissioner of Police’s decision to refuse the application by Mr Christopher Quinlan (“the applicant”) for a category A,B,H Firearms licence made on 11 March 2022. On 7 April 2022, the applicant sought internal review of the decision. The internal review had not been completed by the time the applicant lodged with this Tribunal an application for external review of the decision.

Introduction

2. The applicant, who at the time of the hearing was 29 years of age. The respondent is the Commissioner of Police NSW Police Force (the “Commissioner”). The Commissioner’s delegate formed the view that it was not in the public interest for the applicant to be issued a Firearms Licence (the “Licence”), and the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of his way of living. That decision was based on events regarding the applicant’s involvement with prohibited drugs and where he experienced a mental health event on 20 May 2014, threatening suicide and a failure to provide accurate information in the application for a firearms licence.

Background

3. On 22 April 2011, the applicant was issued a firearms licence. The licence expired on 13 August 2011 due to the expiration of the photograph advice without the applicant collecting the licence.

4. On 22 February 2022, the applicant made an application for the issue of an ABH firearms licence. The application was refused on 11 March 2022. Despite the respondent receiving an application for internal review on 7 April 2022, the internal review was yet to be determined before the applicant’s matter pending before the Tribunal.

5. The applicant seeks a firearms licence so he can compete in long arms competition and target shooting.

6. In 2014, the applicant placed himself on the ledge of a cliff at The Gap, a known place in the Eastern Suburbs of Sydney where people have and attempt suicide. The applicant consumed 4 Valium tablets and wrote suicide notes. In his evidence in chief the applicant said that this was a last ditch attempt to save a relationship. He said he was young and naïve and it was “a manipulative way to save my relationship. I am not that person now. I have a good network of support. Now I have a lot of people I can go to.”

7. On 13 August 2018, the applicant was charged with possess prohibited drug to which he entered a plea of guilty and was sentenced by way of a s 10 bond to be on good behaviour for a period of 18 months.

8. When the applicant made the application for his firearms licence that part of the application form relating to any previous attempt of suicide he answered the question ‘No’.

9. It is these three events in which the Commissioner seeks the Tribunal to affirm the decision as being the correct and preferable decision. I do not agree. These are my reasons.

Jurisdiction

10. The Notice of Refusal was issued under the provisions of the Firearms Act 1996 - s 11(7). Relevantly, s 11 provides:

…

(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--

(a) the applicant's way of living or domestic circumstances, or

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

(c) the applicant's intemperate habits or being of unsound mind.

…

(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. Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The first matter listed at s 75 concerns the revocation of a licence. Relevantly the section provides:

Part 8 Applications to Civil and Administrative Tribunal

75 Administrative reviews by Civil and Administrative Tribunal of certain decisions

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions—

(a) the refusal of or failure by the Commissioner to issue a licence or Licence (other than a Licence in respect of a prohibited firearm) to the person,

(b) …

12. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

13. The Tribunal has jurisdiction under the Firearms Act as noted at [11] above.

14. An application under s 75 of the Firearms Act is an administrative review. The Tribunal’s function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Administrative Review by the Tribunal

15. The applicant filed his application for administrative review on 8 June 2022. The Internal Review decision had not been made at the time of this hearing. I am satisfied that the application has been filed within the time which has passed after the request being made by the applicant for internal review of the decision.

Issues for determination?

16. The issues are as set out by the Commissioners delegate:

• Is it in the public interest for the applicant to hold a licence?

• Is there reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms due to his lifestyle?

17. These issues will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law.

Applicant’s evidence

18. The applicant did not file any material. However, he relies on the s 58 material which includes his submissions made to the Commissioner on Internal Review.

19. Mr Kable, the solicitor for the applicant made oral submissions.

Respondent’s evidence

20. The respondent relied on documents marked as ‘R-1’ filed pursuant to s 58 of the ADR Act on 12 August 2022.

21. On 31 August 2022 the Tribunal made orders for confidential submissions and a confidential statement not to be disclosed pursuant to s 59 of the ADR Act. That material was marked ‘R-2’.

22. The Commissioner made oral submissions. The applicant was cross-examined.

The applicant’s oral evidence

23. The applicant adopted a letter he sent to the Firearms Registry on 16 April 2022. He sets out that he wishes to acquire a firearms permit after nearly 10 years out of the sport of shooting, in which he competed approximately 5 years previously through Combined Shooters Club in Auburn as a minor.

24. The applicant competed when he was younger mainly in pistol target shooting competitions in both rimfire and centrefire competitions. He now seeks to re-establish himself in competition shooting.

25. The applicant said he has been diagnosed with Multiple Sclerosis and he is unable to compete in motorsports as a result of this. The applicant was competing in motorsports after he finished competition shooting when he was younger. He injured himself in that sport and competed in the Australian titles in motorsport qualifying him for the Paralympics.

Completion of application form

26. The applicant says in relation to ticking the wrong box on his application for a firearms licence that it was a ‘mix-up’. He made several enquiries with his psychologist and the Firearms Registry through his shooting club about his mental health incident in 2014. Originally, the applicant ticked ‘Yes’ on his application, he says to be on the safe side, but upon confirmation from the Registry to his shooting club he ticked ‘No’ and proceeded with training.

27. In cross-examination the applicant agreed that he had relied on evidence from experts at his shooting club about filling in the application form and ticking ‘No’ to the question relating to any previous suicide attempts. He was also acting on advice from his psychologist that he did not attempt suicide. In this regard, his Psychologist, Emma Djukic, said to him ‘I agree that technically you did not make an attempt however your risk to self was considered high (hence being admitted under s 22). I think you can answer ‘No’ on the condition that you retain in the letter clarification of the incident on the 21/5/2014.’

Mental health incident

28. In relation to the 2014 mental health incident he says as follows:

… I have spent the rest of my life since my mental health incident being ashamed of what I did that night. I was young and naïve, and it was a last ditch attempt to save a relationship, I thought this would somehow save the relationship. It was not representative, and I am embarrassed for acting that way. This was an isolated incident, which I know came from me being young, immature, and attention-seeking. I have matured and changed significantly since the mentioned incident.

29. The applicant denied that the event at The Gap was an attempted suicide. He said that he sat there for an hour waiting for someone to get him and ‘I sent the texts and I jumped the fence knowing cameras were there. It was a cry for help. A silly way to try and save a failing relationship.’ I accept his evidence in this regard.

30. The applicant was also cross-examined on the discharge notes from the hospital he was discharged to following the 2014 incident. He agreed that debt was a stressor as recorded in the hospital notes but it was not, according to him, a major part of his decision making process.

Drug charges

31. Concerning the 2018 drug charge, the applicant said in his statement that he is not and has been a regular drug user. He admitted to being in possession of a drug on the night he was detained and recognises that it had the potential to ruin his life and put other people’s lives at risk as well as the community. He denies having been in possession of a drug since this incident. Further, due to his diagnosis of Multiple Sclerosis, consuming prohibited and illicit drugs could have a detrimental effect to his health and wellbeing.

32. I accept the applicant as an honest and reliable witness. It is evident that he made some regrettable mistakes both in 2014 and in 2018. I accept his explanation for each of these events. I also accept the applicant’s remorse and contrition in his words for the “two biggest mistakes of my life”.

Statement of Mark Chapman

33. Included in R-1 is a letter from Mark Chapman, Secretary of the Combined Shooters Club Inc, dated 21 April 2022. The following is relevant in relation to the explanation given by the applicant concerning his application form:

I refer to a phone conversation between myself and Deakin Yates – Senior Adjudicator of the Clubs, Industry Regulation and Engagement Unit of the NSW Police Force Firearms Registry on 26/07/2021.

…

I also enquired about the likelihood in which we could expect a Commissioner’s review of P650 declarations, as a member of Combined Shooters Club Inc Mr Christopher Norman Bruce Quinlan of [address] answered ‘Yes’ to a question on a P650 form of which we were then required to mark as ‘Not authorised to shoot’. This P650 was submitted to the NSW Police Force Firearms Registry on 17/07/2020 accompanied by 6 other documents – some of which were medical reports to support Chris’ review.

…

To confirm this my call was then transferred to Deakin Yates. Deakin kindly explained as Dion had – the situation regarding the postponement of reviews for 650 declarations. Upon explaining that accompanying the P650 declaration, on Chris’ behalf and request I had also emailed his relevant medical information to accompany his P650 review to the Club’s Unit of NSW Police Force Firearms Registry on 17/07/2020 to accompany his review. Deakin acknowledged the documents were present on the system following this submission in 2020.

As it was unlikely that a Commissioner’s review for P650s was expected to resume for a considerable time Deakin suggested that with the professional medical reports document provided stating that Chris did not pose a risk to himself or the public – providing Chris completes a P650 and can answer truthfully ‘no’ to the questions we could then mark his P650 declaration ‘authorised to shoot’. Once authorised to shoot Chris could complete his pistol safe handling course and long arms safety course and submit his licence application.

…

Chris’ professional clinical psychology report conduct on 15 June 2020 stated that he posed no risk to himself or to the public and he informed us that he was confident that he could honestly answer ‘no’ to the questions on the P650 declaration form. …

We were then able to conduct Chris’ firearms training following his signing of a P650 declaration which he answered, ‘no to all questions’ as we could mark his P650 ‘authorised to shoot’.

34. The statement of Mr Chapman confirms and corroborates the applicant’s evidence that he relied upon the advice given to him by an officer of the Firearms Registry and Mr Chapman, Secretary of the shooting club, in answering the questions on the application form for a firearms licence. I accept this evidence.

Character References

35. The applicant has provided a number of character references in support of his application for an internal review of the decision. Mr Steven Brown, Chairman of Etienne Lawyers, in a reference dated 2 June 2020 refers to the 2014 mental health incident. He states “… it struck me as a completely uncharacteristic aberration of the person I know. When he informed me of the incident he expressed his sincere and complete regrets to me. Having known him and worked with him I could tell he was expressing his regret for having let others down by not having acted more responsibility than he was proven to have acted.”

36. Mr Brown goes on to attest to the applicant’s integrity and honesty and community minded based views where he regularly puts the needs of others before himself. I place moderate weight on the reference from Mr Brown.

37. The character reference of Roy Halabi dated 2 June 2020 attests to the applicant’s candour and good character. Mr Halabi has known the applicant for two years but does not reference to the 2014 or 2018 events. I place little weight on his reference for this reason.

38. A reference has been provided from the applicant’s father. I place moderate weight on the explanation of Mr Glenn Quinlan’s statement where he says “the issues stemmed from his immaturity at the time, and the breakdown of his first significant relationship. To this day, I am confident Chris was not at risk of harming himself in the discussed incident.’ referring to the 2014 matter. Mr Glenn Quinlan notes that his son has matured significantly from age 21 to 27.”

39. Mr Chapman on 17 July 2020 provided a reference which attests to the applicant’s responsibility as a member of the shooting club and one with whom he commends to be responsible in holding a firearm. I accept his reference and give it moderate to significant weight.

40. Mr Justin Graves provided a reference dated 23 April 2022. He similarly speaks highly of the applicant’s good character. In reference to the 2014 incident, Mr Graves said that he has ‘intimate knowledge’ of the situation as he was his best friend at this time. Mr Graves corroborates the evidence given by Mr Quinlan about him being in his first serious relationship and he took desperate, attention-seeking efforts, to try and generate saving that relationship. Mr Graves, whilst he is not a health care practitioner, believed that there was ‘no cause for concern’ and expresses the applicant’s embarrassment and remorse for his conduct. Mr Graves describes the applicant now as being a healthy, calm and happy person who enjoys spending time with his chihuahua Coco and his fiancée Jasmina. In relation to the 2018 drug incident, Mr Graves expresses some surprise. He was not aware of the applicant taking or being known to use drugs. He describes this event as being out of character. Mr Graves also sets out the generosity and support the applicant provided him during an unsettled period when Mr Graves broke up with his then girlfriend and allowed him to stay in his home for 5 months. I accept this reference and give it significant weight.

35. I also note other references of Ben Keyte, 21 April 2022, Julian Mikhael, 23 April 2022 and Bruno Postaj, 19 April 2022, and George Shalala, 12 April 2022, attesting in similar terms to the references already set out, which I accept.

Report of Clinical Psychologist Emma Djukic

42. In a report dated 15 June 2020, Clinical Psychologist Emma Djukic makes the following statement:

I met with Mr Quinlan for assessment on 3.6.2020 – he was self-referred and requested supporting documentation (risk assessment) from a psychologist to include with his application for a firearms licence.

… Mr Quinlan admitted to a history of mood disturbance in 2014 – he stated that in May 2014 he experienced a period of depressive symptoms in the context of difficulties in his relationship at the time. This worsened over time culminating in acute suicidal ideation for which Mr Quinlan was treated under s22 as an involuntary patient at Prince of Wales Hospital (…). Mr Quinlan reported that he was discharged after a brief admission with acute care team follow up and hand over to his treating Psychologist at the time, Mr Robert Gachon. Mr Quinlan stated he has not received psychological treatment since this treatment episode in 2014.

43. Ms Djukic concludes that the applicant does not report any psychological impairment that would impact his ability to exercise continuous or responsible control over a firearm. His previous 2014 suicidal ideation event appears to be a reaction to a contemporary psychological stressor (in particular the relationship breakdown). The expert concludes that the applicant has the ability to form a ‘rational judgement and to exercise will and power to control psychological acts in accordance with rational judgement. Assessment did not suggest that Mr Quinlan currently poses a risk to himself or to the public.’

44. I accept the evidence of Ms Djukic.

Section 59 documents

45. [Confidential]

46. [Confidential]

47. [Confidential]

48. [Confidential]

49. [Confidential]

50. [Confidential]

51. [Confidential]

52. [Confidential]

Applicant’s submissions

53. The applicant relies on the letter of apology provided in relation to the 2018 drug charge which demonstrates his remorse and contrition, the lessons he has learnt, including his ability to cope with certain stressors in his life that led to him taking drugs. Expressions of ‘remorse’ are considered highly by the Tribunal as evidenced in a number of decisions (including Hook v Commissioner of Police [2020] NSWCATAD 250; Jameson v Commissioner of Police [2022] NSWCATAD 274; Webb v Commissioner of Police [2004] NSWADT 110; Petricevic v Commissioner of Police, NSW Police Force [2022] NSWCATAD 24).

54. In Petricevic, there was a single episode of an alleged reference to suicide, along with a previous drug charge and a few belligerent interactions with police. The Tribunal found in Mr Petricevic’s favour and set aside the decision to refuse him a firearm licence particularly at [61]-[68] and [71]-[72]:

61   It is not possible to predict with absolute certainty where the risk lies in any particular situation. As has been frequently noted, 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. The Tribunal must make decisions that are consistent with a need to reduce any risk to a minimum.

62   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 risk to the applicant himself; Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117.

63   Where there has been, or is, a possibility of a threat to public safety, the public’s right to safety must outweigh an individual’s privilege to possess and use a firearm.

64   Any past and present conduct that may be relevant in deciding whether the applicant 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.

65   The respondent relies on a number of COPS entries that indicate a history of difficult interactions between the applicant and police. The most recent of those incidents is 2014. Most significantly, in my view, is the incident from January 2007 in which the applicant threatened self-harm. The applicant also has a long history of traffic infringements. I agree with the respondent that this demonstrates a disregard for public safety and his own safety, as well as a disregard for a regulatory scheme aimed at ensuring public safety. However, I note that there have been a limited number of infringements in recent years.

66   In my view, the circumstances of this matter may be distinguished from those that are considered in Lee v Commissioner of Police, NSW Police Force [2020] NSWCATOD 144. In that matter I considered that Mr Lee’s extensive history of traffic infringements was such that I could not be satisfied that similar conduct will not be repeated or that he may similarly disregard aspects of the firearms regulatory scheme. In the present matter I do not have those same concerns.

67   In my view, the fact that the applicant has not repeated the conduct for which he came to the attention of the respondent over several years indicates his preparedness to learn from his experience and adapt his behaviour in an effort to comply with his legal obligations.

68   The references that have been provided in support of his application all suggest that the applicant has in fact moved on from his prior behaviour and is now a responsible citizen. In my view, the risk that the offending conduct would be repeated in the future has significantly reduced.

…

71   It is necessary that I form a view in regard to the risk to the public safety if the applicant is granted a firearms licence. I have decided whether there is a real and appreciable risk to the safety of the public, bearing in mind all the relevant circumstances. The risk must be assessed by reference to the applicant’s prior conduct and must take into account of the circumstances in which that conduct occurred and any relevant changes that have occurred since.

72   As I have also indicated, a significant period has passed since the applicant’s conduct which brought him to the attention of police. Since that time, it appears that he has changed his lifestyle. It indicates a level of maturity that can be contrasted with that suggested by his previous conduct.

55. The applicant submits that there are strong similarities in the decision of Petricevic with the application which is before me. The applicant was of a similar age to that of Mr Petricevic and he has also changed his lifestyle and matured since the incidents referred to and relied upon by the Commissioner.

56. In relation to the applicant’s mental health, the report of Ms Emma Djukic is relied upon, which indicates that the applicant does not pose a threat to himself or the public. In decisions of AMJ v Commissioner of Police, NSW Police Force [2012] NSWADT 228, AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5 and Aloschi v Commissioner of Police [2021] NSWCATAD 64 and Ayers v Commissioner of Police [2021] NSWCATAD 78 all involved matters of limited attempted suicides, a time period which has elapsed since those attempts and a distinguished statement as between self-harm that may be an issue while examining actions more aptly described as ‘a cry for help’ rather than anything more serious. In each of those decisions the central theme that was examined was ‘actual risk opposed to theoretical risk’.

57. In Matus v Commissioner of Police [2022] NSWCATAD 111, the applicant relies upon the following parts of that decision at paragraphs [64]-[67]:

64   The applicant accepted that he did not disclose his mental illness in his numerous applications for firearms licences. However, he maintains that he was mentally well, and he did not believe that he was treated for any of those conditions referred to in the application ‘in the preceding 12 months’ leading up to the re-application.

65   He does not accept that he has been continuously mentally ill since 1997, especially in a way that would prevent him from being able to personally exercise continuous and responsible control over firearms.

66   He accepted that he had seen Dr Dunn and Dr Reed but at the time he did not believe it was for ‘treatment’. He characterised the visits as maintenance. He now accepts that the visits were a form of treatment.

67   He agreed that he honestly disclosed his history of past treatment for depression in a police interview. He stated that 2019 turned to be an ‘annus horribilis’ for him. ‘A’ had suffered severe mental health issues and he took time off work to look after her at home and support her through her hospital stays and home recovery stage. He consulted Mr Reed for some supportive counselling. He did not associate what he was going through at the time with ‘treatment for mental illness’ in the context of the licence renewal. Rather, he saw it as supportive counselling.

…

74   As I have noted, the background is not in dispute. It is not in dispute that the applicant A and B have been the subject of numerous police reports or that the applicant has a history of mental illness. It is not in dispute that the applicant was charged and found guilty of possessing an unregistered firearm.

75   The applicant now accepts that he should have disclosed that he had received treatment for mental illness on the licence re-application form by responding ‘yes’ to the question ‘Have you in NSW or elsewhere ever attempted suicide or self-harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?’. However, he maintains that he did not intend to mislead the respondent.

76   I accept that when providing the incorrect answer on the re-application forms he believed that he was answering honestly. I accept that he viewed the treatment that he was receiving from Dr Dunn and Mr Reed as supportive counselling rather than treatment for mental illness. I accept that he did not intend to mislead the respondent. In my view this is not an issue that should be given any significant weight in regard to the issue of whether it is not in the public interest for the licence application to be granted.

77   It is common ground that while the applicant was found guilty of possessing an unregistered firearm and that the matter was dismissed pursuant to s10 of the Crimes (Sentencing Procedures) Act 1999. The applicant’s failure to act appropriately in regard to the unregistered firearm is understandable given his circumstances but it is not justified. I accept that it reflects badly on his attitude towards the strict requirements under the Act. Nevertheless, the Court’s order reflects the actual risk to the public from the conduct. In my view, this is not an issue that should be given any significant weight in regard to the issue of whether it is not in the public interest for the licence application to be granted.

58. The applicant submits that in both matters of Petricevic and Matus the applicants had a greater objective seriousness than the applicant, and whom, given the results from those other two matters should be afforded the same benefit of having the original decision set aside.

59. In relation to the explanation provided by the applicant, he submits that the statement of Mr Chapman explains the process that was undertaken about the question of issuing a certificate awareness test. If you answer ‘yes’ and a mandatory exclusion applies for a P650 then you can seek an exemption from the Registry. The applicant contends it was clear from the letter of Mr Chapman, he explained this to Mr Quinlan. The letter is detailed in this regard and refers to the conversations with the Firearms Registry. The letter of Mr Chapman should be taken at its highest and the explanation provided believed by the Tribunal. The applicant contends there was no deceptive behaviour on his part which would cause the Tribunal to place significant weight on the misunderstanding that has occurred in these circumstances.

60. In respect of the 2014 suicide attempt, the applicant contends that the discharge summary sets out that there is no concern following that event. Ms Djukic questions whether it was actually a suicide attempt or rather a cry for help, which is similar to the case of Petricevic. The precursors to the 2014 event related to him not having coping strategies in terms of his relationship. Since then the evidence is that the applicant should be believed in terms of him developing the same.

The submissions of the respondent

61. As it relates to the possession and use of a prohibited drug, Ms Chenhall who appeared on behalf of the Commissioner said that the Tribunal should hold significant concerns about the risk posed by the applicant’s use of illegal drugs, cocaine. The Commissioner submits that the applicant was observed attending a place known for the supply of drugs and when stopped by police he had such drugs in his possession.

62. In cross-examination the applicant could not recall if this was his third or fifth time of using drugs which should place particular concerns in the mind of the Tribunal.

63. The attempted suicide event in 2014 in the Commissioner’s submission raises further matters for concern. The Commissioner contends that the applicant decided to commit suicide, he had written notes and sent text messages to friends about taking his life. He consumed 4 Valium tablets and went over the safety fence and positioned himself on the edge of a cliff at The Gap, a well known location for people seeking to commit suicide. In oral submissions a reference in the COPS report related to an additional stressor apart from the applicant’s breakup of a relationship, being a diagnosis of Multiple Sclerosis. This matter was not put to the applicant in cross-examination and I give that little weight.

64. The Commissioner notes that the discharge summary recommended that the applicant have psychological treatment following his discharge from hospital. The applicant conceded he has not had such treatment and in the Commissioner’s view this should place significant concern in the Tribunal’s mind.

65. In the application for a firearms licence the applicant did not disclose that he had attempted suicide in 2014. Similarly, the applicant would have made a similar failure to provide true and correct details in his application to undertake a firearms training course in the P650 form. The Commissioner says that the evidence of Mr Chapman should not be given significant weight. This is because the letter is in relation to the P650 form and not the application for a firearms licence. The Commissioner also submits that the letter does not disclose substantial enquiries, but rather one telephone call.

66. In relation to the references provided by the applicant, the Commissioner submits that little weight should be given to those references where there is no mention of the 2014 suicide attempt and the 2018 drug matter.

67. In conclusion the aforesaid matters in the Commissioner’s submission confirm that there is reasonable cause to believe the applicant may not personally exercise continuous and responsible control over firearms as a result of his way of living. Also, the Tribunal cannot be satisfied the Applicant can be trusted to have possession of a firearm without danger to public safety, including his own safety and it would be against the public interest for the Applicant to possess and use a firearm.

My consideration

68. The decision under review is based upon the Commissioner’s contention that the applicant having access to firearms would be contrary to the public interest and there is 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. Further, the applicant cannot be trusted to have in his possession a firearm without danger to public safety, including his own safety and it would be against the public interest for him to possess and use a firearm.

Public interest

69. In respect of the public interest, I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Act identifies a purpose to deal with public safety at s 3(1)(a) of the Act.

Section 3 of the Firearms Act 1996 provides:

3 Principles and objects of Act

(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…

70. The Appeal Panel case of Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 (Lee), concerning giving proper consideration of all relevant matters when determining matters as to the public interest. At [24] - [25] of Lee the Appeal Panel observed:

24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the “overriding need to ensure public safety”: Firearms Act s 3(1)(a). Public safety is improved by “imposing strict controls on the possession and use of firearms” and by “promoting the safe and responsible storage and use of firearms”: Firearms Act s 3(1)(b). The objects of the Act include “to establish an integrated licensing and registration scheme for all firearms;” “to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;” and “to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms”: Firearms Act, s 3(2)(b), (c) and (d).

25. In that statutory context it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or Licence as irrelevant considerations.

71. When reviewing these decisions the Tribunal has determined that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered - see Livadaru v Commissioner of Police [2008] NSWADT 160 where Deputy President Hennessy referred to the public interest at [54]:

In considering the public interest, regard must be had to the underlying principle of the Act. ….

72. The Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force discussed how the Tribunal should approach matters of public interest in licensing regime reviews.

73. Cases often cited include: Commissioner of Police v Toleafoa [1999] NSWADTAP 9, Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 and Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. In Ward v Commissioner of Police, NSW Police Service Deputy President Hennessy referred to the public interest at [27]-[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. ….

74. In Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315, the Tribunal said, which I adopt:

[31] In O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

[32] The concept does include standards acknowledged to be for “the good order of society and for the well-being of its members”: Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, 681, the High Court said:

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

[33] The issue of public interest allows for matters going beyond the applicant’s character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33].

75. As noted in Commissioner of Police v Toleafoa [at 33] the 'public interest' is:

…

33. The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.

The “reasonable cause to believe” grounds

76. The other two grounds relied on by the respondent apply if the Commissioner “has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms” because of any previous suicide attempt (s 11(4)(b)).

77. In Laing v Commissioner of Police, New South Wales Police Force the Tribunal said: at [35] – [37]:

[35] Emmett J considered the meaning of “reasonable cause to believe” in Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013. His Honour said that the words “are not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant [in that case, an applicant for preliminary discovery] to show objectively that there is reasonable cause for the relevant belief. It is not necessary to demonstrate whether or not the applicant has the belief” (at [10]).

[36] As Hennessy DP pointed out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [22], “Not every suicide attempt will justify the revocation of the person’s firearms licence. The Tribunal must assess the likelihood that [the applicant] will attempt suicide or self-harm again and, if that happens, the likelihood that a firearm will be used. There is no suggestion that [the applicant] would attempt to harm others”.

[37] Her Honour concluded that the applicant’s previous attempt did not give rise to reasonable cause to believe that the applicant would not personally exercise continuous and responsible control over firearms. The test, in context, was an objective one (State of New South Wales v Taylor [2001] HCA 15, [10]), her Honour said, setting aside the revocation of the applicant’s license.

[38] While the term “unsound mind” is not defined in the Act, the tribunal explained the meaning of the phrase in the context of applying s 11(4)(c) of the Act in Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 185:

22 In interpreting the phrase “unsound mind” the ordinary grammatical meaning of the phrase must be applied. “Unsound” is defined in the Macquarie Dictionary, 3rd edition, The Macquarie Library, as “not sound; diseased, as the body or mind.”

23 In Herbohn v NZI Life Ltd [1998] QSC 122 (12 June 1998) WC Lee J gives a useful exposition of the meaning of “unsound mind.” His Honour said that:

Mayo J. in Pointon v. Walkley [1951] S.A.S.R. 121 at 125, when concerned with the meaning of "unsound mind" for the purposes of a limitation statute . . . said:-

"`Unsound' is the antithesis of `Sound'. `Sound', when used in connection with body or mind, denotes the presence of perfect health or, putting it another way, the absence of all defects other than those that are trivial. A sound person is one without the sign of disease, malady or unhealthy abnormality. When seeking to ascertain the meaning of the words "unsound mind" in a statute, they must be construed in relation to the subject matter with which the statute is dealing and their place within it: Kirby v. Leather [1965] 2 Q.B. 367 per Lord Denning M.R. at 383 where the Master of the Rolls said that for the purposes of that statute, a person is of unsound mind if he is incapable of managing his affairs as a reasonable man would do; King v. Coupland. So also with the expression "mental condition" which, according to Slattery J. in Kotulski v. Attard (1981) 1 N.S.W.L.R. 115 at 118 was "meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise will power to control physical acts in accordance with rational judgment".

78. The applicant has one mental health episodes in the last 8 years. The incident involved the applicant expressing suicidal thoughts.

79. The Federal Court explained in Austrac that “reasonable cause to believe” requires, not mere assertion or conjecture, but objective grounds for the belief. In relation to the attempted suicide ground in s 11(4)(b) of the Act, AMLv Commissioner of Police, New South Wales Police Force establishes that not every suicide attempt will justify licence revocation. It is necessary to assess the likelihood of future self-harm, and if that happens, the likelihood that a firearm will be used.

80. The Commissioner relies on the 2014 incident. The applicant has a clear memory about the incident. He says, and I accept, that the incident occurred out of an “attention seeking” “cry for help” due mainly from a failed relationship when he was emotionally immature. This is confirmed by Mr Glenn Quinlan and his best friend Mr Graves. I accept the applicant did not attempt suicide on this occasion, but rather, expressed suicidal thoughts. Notwithstanding the suicide notes written by the applicant, there is little to no objective evidence of any real suicidal intent. This is confirmed by the hospital discharge notes describing “suicidal ideation”. I also note the Applicant was discharged from hospital and identified as not having any significant psychological risk. There is no evidence that the applicant was contemplating the use of a firearm. The evidence favours the conclusion that this was not a real suicide attempt, but a cry for help, and I so find.

81. When reviewing s 11(4)(b) of the Act, the Tribunal is required to predict the applicant’s future conduct as regards personally exercising continuous and responsible control over firearms, in light of any previous attempt at self-harm. The provisions are to be applied by reference to the applicant’s prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182, [41].

82. The provision implicitly recognises that a prior attempt can be an indication of possible future action of the same kind that might compromise the applicant’s exercise of continuous and responsible control over firearms. In AML v Commissioner of Police, New South Wales Police Force the Tribunal pointed out that not every attempt at suicide is enough to warrant licence revocation. In that case there had been an attempt, but psychiatric and psychological evidence showed a substantial improvement in the applicant’s mental condition that made it unlikely there would be any repetition. Hennessy DP also said, “I also accept that it is highly unlikely that, if AML did attempt suicide or self-harm, he would use a firearm. AML has an unblemished history in relation to the possession and use of firearms and he did not contemplate using a firearm previously”: at [24].

83. I accept Ms Djukic has found that the applicant does not have a psychiatric or psychological condition showing a substantial impairment in his mental health. I also accept that the applicant has shown improvement in his mental health since the isolated 2014 incident. There is no evidence of any further mental health episode or decline in the Applicant’s mental health. I have placed significant weight on Ms Djukic’s report and findings.

84. I am satisfied that the 2018 drug incident was a one off, and the Applicant is highly unlikely to repeat his offending. He has shown remorse and contrition for his conduct. This weighs in his favour. I am satisfied that significant time has passed since 2018, the Applicant is engaged to be married, he has created a life for himself and matured. I find that his previous way of living, albeit an isolated period in his life, when taking drugs at the highest of 5 times, is not evidence that would lead to a finding that there is reasonable cause to believe the applicant may not personally exercise continuous and responsible cause over firearms.

85. I have given due weight to the character references and note where the referee’s have not referred to his offending, little weight has been given. The referees who have acknowledged and referred to the 2014 and 2018 incidences, each attest the isolated nature of those events and the good character of the Applicant.

86. I am satisfied on the objective evidence that there is no reasonable cause to believe the applicant may not personally exercise continuous and responsible cause over firearms. I therefore find that, on an objective view of the evidence, there is no reasonable cause for the belief in s 11(4)(b).

87. I am satisfied the evidence as it stands does not provide reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of being of any mental illness or as a result of his way of living.

Public Interest

88. 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]. The notion of “virtually no risk” should be taken into consideration with some caution.

89. I have found that by reason of the 2014 and 2018 incidents there is no reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms. I find there is no real and appreciable risk that would cause risk to the public or the applicant. I find the event in 2014 and 2018 as being of minimal risk and little weight should be attached to them.

90. In relation to the failure to properly complete the firearms licence form, I accept the applicant’s explanation. For the reasons set out above, I have also accepted Mr Chapman’s corroborating evidence in this regard. While the way in which the applicant completed the form could be described as ‘sloppy’, I find that he did not seek to willingly mislead the Commissioner in respect of the 2014 incident. The applicant relied upon the representations made by Mr Chapman and the comments of Ms Djukic in forming what he believed to be a reasonable and accurate view. In hindsight, it may have been in the applicant’s interests to have ticked ‘Yes’. Be that as it may, I accept that the applicant reasonably accepted the view of his treating psychologist and the representations made by Mr Chapman and believed he was appropriately completing the application form. Little weight is attributed to this incident.

91. The decision under review is set aside.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 09 January 2023