Stokes v Commissioner of Police, NSW Police Force

[2019] NSWCATAD 233

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Stokes v Commissioner of Police, NSW Police Force [2019] NSWCATAD 233
Hearing dates:	13 February 2019
Date of orders:	07 November 2019
Decision date:	07 November 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	(1)   The reviewable decision is set aside. (2)   In substitution, the Applicant’s licence should be reinstated in accordance with these reasons for decision.
Catchwords:	ADMINISTRATIVE LAW - FIREARMS – public interest – whether a risk to public safety
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Commissioner of Police v Toleafoa [1999] NSW ADTAP 9 Constantin v Commission of Police, NSW Police Force [2013] NSWADTAP 16 Cusumano v Commissioner of Police, New South Wales Police Service, [2001] NSW ADT 50 Davos v Commissioner of Police [2013] NSWADT 7 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43 Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 Ward v Commissioner of Police [2000] NSW ADT 28
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Matthew Glenn Stokes (Applicant) Commissioner for Police, NSW Police Force (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2018/00282203
Publication restriction:	Nil

REASONS FOR DECISION

Background

1. Matthew Glenn Stokes (the Applicant) was first issued with a Category AB firearms licence on 29 June 1998 for the genuine reason of ‘recreational hunting / vermin control (owner of rural land)’. In 2002 the genuine reason of ‘animal welfare’ was added to the licence. Subsequent applications for firearms licences were approved until the licence was revoked on 25 November 2017 after the Applicant failed to provide a medical assessment.

2. On 23 August 2017 the Applicant’s partner contacted police as she held concerns for his welfare. On 24 August 2017 the Respondent requested the Applicant provide a medical assessment from a mental health professional for the purpose of determining his fitness to hold a firearms licence and to responsibly possess and use firearms. On 19 December 2017 the Applicant sought internal review of the revocation, requesting an extension of time to furnish the medical assessment which was granted. On 18 March 2018 a further extension of time was requested but was not granted.

3. On 26 June 2018 the Respondent received a Risk Assessment Questionnaire from a consultant psychiatrist, Dr Suraiya Moisey, dated 31 May 2018. Further information was sought from Dr Moisey by the Respondent on 1 August 2018 and a response was received on 2 August 2018.

4. On 8 August 2018 the Respondent decided to affirm the decision of 25 November 2017 on the basis that it was not satisfied that sufficient information had been provided to ally concerns regarding the Applicant’s access to firearms, specifically in relation to allegations of his threatening self-harm (‘the Reviewable Decision’).

5. By application filed 14 September 2018 the Applicant sought review of the Respondent’s Reviewable Decision in the Tribunal, on the following grounds:

I have been compliant with all instructions and informations requested for assessment. Unfamiliar with this process, and the lack of more spicific [sic] details of expected requirements, I wish to submit these documents for further consideration: -

-   Reports from “ongoing” psychiatric assessment (booked)

-   Character references (requested by referees)

-   Personal statement

I would like the opportunity to correct some inaccuracies in the statements that could have strongly affected and influenced the final decision.

I have total respect of this process and strongly feel that with further review considering more information and knowledge of my character, I will regain the privilege of my gun licence and guns.

6. The Applicant and his wife, Paula Stokes, gave oral evidence and were cross examined at the hearing on 13 February 2019. Statutory declarations by the Applicant and his wife and character references were provided by the Applicant.

Legal principles

7. The Tribunal has jurisdiction to review the Respondent’s decision pursuant to section 75(1)(c) of the Act and section 30 of the Civil and Administrative Tribunal Act 2013. The Tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.

8. The underlying principles of this Act are:

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

2. to improve public safety:

1. by imposing strict controls on the possession and use of firearms, and

2. by promoting the safe and responsible storage and use of firearms, and

3. to facilitate a national approach to the control of firearms.

9. The objects of this Act include, relevantly:

1. to establish an integrated licensing and registration scheme for all firearms,

2. to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms.

10. Section 11(7) provides that:

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. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7, [117].

12. A discussion of relevant case law with respect to public interest was set out by the Tribunal in the case of Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at paragraph [69]- [74]. The concept of "public interest" was discussed by the Administrative Decisions Tribunal (NSW) (“the ADT”) in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 as follows:

The "public interest" is an inherently broad concept giving an appellant [the Respondent] the ability to have regard to a wide range 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 in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operated 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.

13. The circumstances in Toleafoa related to the revocation of a security licence. In Ward v Commissioner of Police [2000] NSWADT 28 (Ward), the ADT confirmed that these comments apply equally to the Act. In Cusumano v Commissioner of Police [2001] NSWADT 50, the ADT stated:

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

14. In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act, namely, to confirm firearm possession and use as a privilege conditional upon the overriding need to ensure public safety.

15. In Ward the Tribunal considered the fitness and propriety of Mr Ward to hold a firearms licence. The Tribunal stated at paragraphs [27 – 28]:

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

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

16. The Appeal Panel in Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at [33] (Constantin) found that the term ‘public interest’ included matters beyond the character of the Applicant and included public protection, public safety, and public confidence in the administration of the licensing system.

Consideration

17. At issue in these proceedings is whether and to what extent the Applicant threatened self-harm in the course of an incident in August 2017, and whether he is currently at risk of self-harm and therefore it is not in the public interest for him to hold a firearms licence.

18. On 23 August 2017 the Applicant’s wife, Paula Stokes, contacted the local police with concerns about the Applicant. Mrs Stokes advised police that she and the Applicant had argued, the Applicant had spent the night in a caravan on their property, and then had left the property. A series of text messages followed between the Applicant and Mrs Stokes, which caused her to believe that the Applicant was considering self-harm. Some of these text messages stated:

"Life's not worth living without you"

"It's not my home any more. I love you both with all my heart, all my soul but it wasn't enough. Love you both"

I don't have anything to live for- I lost that today. I can't fix this I fucked up. l am not worth it"

“I will make sure I never do this to you again. Don't feel sad, feel glad and relieved you won't have to put up with it any more"

“I’m having trouble seeing through my tears. Know that I loved you & Sammy up until the end"

19. The police also recorded that during a telephone conversation, the Applicant told Mrs Stokes that he was going to hang himself from a tree, and that the Applicant had made similar statements in the past threatening self-harm.

20. The Applicant’s evidence and submissions were to the effect that he had an argument with his wife which had escalated into her calling the police, but he had never intended to threaten self-harm and had never threatened to use any firearms. He had been working excessive hours at the time – 12 to 16 hours per day, 7 days a week, as a self-employed builder. He argued with his wife on 22 August 2017 after which he camped out in the bush for a night, having no money for a motel. He went to work the following day but didn’t go home. He argued again with his wife via phone and text on 23 August 2017 and she told him that she wanted to split up, which made him feel sad and hopeless. Over the course of the evening he sent various text messages and spoke to her by phone and although he didn’t remember telling her he was going to hang himself, he agreed that it was possible he had said that during the course of a phone conversation. He said that “I told her I wouldn’t do anything because I am too gutless”. Mrs Stokes contacted the police but before they arrived, “we sorted everything out”.

21. The Applicant said that he could have used any of the tools he had with him to self-harm and could have hung himself if he had meant what the police reported his wife said, but he didn’t. He emphasised in evidence that his firearms never left their storage during this time and there was never any mention of firearms during the course of the argument or to police. He said that despite the police report, he had in fact not made similar threats of self-harm or suicide in the past.

22. The Applicant explained that he had tried to get the risk assessment completed but it was very difficult to find an appropriate medical professional willing to complete it. He had tasked his wife with doing so, “Paula did all the legwork”. The psychiatrist he did manage to obtain an appointment with, Dr Moisey, informed Mrs Stokes that she didn’t do assessments for firearms. The Applicant didn’t realise that it would be so hard to obtain a psychiatric appointment and once he did, he had only a ½ hour appointment after which he went straight back to work. A subsequent appointment was cancelled by Dr Moisey. Following the report of 31 May 2018, he did not return to see Dr Moisey because he “did not get an offer of further psychiatric treatment”, and “she didn’t say I needed more appointments”. He claims that Dr Moisey said there “was nothing more she could really do for him”.

23. Since the incident of 22 and 23 August 2017, the Applicant claimed that his employment situation had improved and he wasn’t working excessive hours, which had a positive impact on his well-being. Although he was working 8-10 hour days, and occasional weekends, this was significantly less than he had been working. Additionally, he was employed rather than being self-employed, which he found to result in far less stress and pressure because he didn’t have to chase accounts. His relationship with his wife had improved significantly and she supported his request to regain his firearms licence. He had cut down on his alcohol usage from 6 beers per night to “barely anything”. He submitted that these changes meant that he was not at risk of repeating his behaviour of 22 and 23 August 2017, and demonstrated that he was not at risk of self-harm or misuse of a firearms licence.

24. Paula Stokes had prepared the written character references on her husband’s behalf, but clarified in evidence that they were the referee’s words. She described a 23-year relationship with the Applicant with “ups and downs”. She said the argument on 23 August 2017 was about the Applicant working too much and not taking time to spend together with her and their family. When questioned about the threats the Applicant made about himself to her that night, she said that he had “not said anything to me about hanging himself”, despite the police report, that his statement to her was “not in those words. He said that life wasn’t worth living without us”. Regarding the text messages, she agreed in cross examination that they made her concerned but stated that this was concern that “he was ok, safe”, not that he would harm himself. The reference in the text messages to “until the end” she took to mean “the end of their relationship, not the end of life”. The reference to “leave” she considered meant “leave us alone”, not leaving life.

25. Under cross examination she admitted that “I may have used the words to tell Police he would say he would hang himself. I was very upset. I can’t actually remember him saying that though... I rang police because I was concerned that Matthew would harm himself. I believe he told me that was a possibility.” She said that by the time the police had arrived, she had spoken to the Applicant and told police “not to worry”. She claims that she “never told police of previous threats of self-harm, because he hasn’t previously threatened self-harm”. When asked if she was downplaying the situation she said “I do not want to play things up but I do not want to play it down. I was genuinely concerned.” She explained that the arguments in August 2017 were “heightened because alcohol was a factor in the weeks leading up to it”.

26. Both the Applicant and Mrs Stokes gave evidence that they had attempted to clarify these matters in correspondence to the Police following the incident. Mrs Stokes’ evidence regarding the changes made by the Applicant concurred with his – he was working far less hours, drinking significantly less and they weren’t having the same problems in the relationship anymore. She described having “fifteen days of holidays over Christmas and no cross words”. She was comfortable with and supported his application to regain his firearms licence, stating that it was “necessary”, for example for when wild dogs got trapped on their property.

27. Regarding the Applicant’s attempts at seeking appointments with a psychiatrist, Mrs Stokes stated that she had made two follow up appointments with Dr Moisey which were cancelled by Dr Moisey. “The doctor stated there should be follow up appointments so we tried to provide that… I phoned several other doctors.” She stated that she did not have any concerns for the Applicant’s mental health.

28. The Respondent relied on evidence of the police reports, Dr Moisey and the Applicant’s general practitioner that the Applicant had, in fact, threatened self-harm by hanging on 23 August 2017, and had threatened self harm in the past. This created a “real concern for public safety” in the context of the Applicant failing to attend any follow up appointments with the psychiatrist.

29. Dr Moisey’s report of 31 May 2018 noted that she was not comfortable providing a report for the purposes of a firearms licence review. She recorded a history which was consistent with the Applicant and his wife’s evidence. Regarding the allegations of threats of self harm, she reported:

On the night of 22 October there was an argument that ensued between the couple and unfortunately alcohol was the basis. Matt had left the house to camp out bush to get some space and think. Matt did not mention any suicide plan which was contrary to the Police report…

Unfortunately the argument had escalated and Paula had threatened to leave him and take their son with her. At this point he became despondent and reacted by saying that what is the point of him living, never inferring that he was going to shoot himself. He had been thinking of hanging himself suggesting that his only purpose in life was his family…

…in the meantime the couple had resolved their differences and decided to move on.

30. There was no evidence from Dr Moisey that the Applicant had, in fact, threatened self harm to Paula or anyone else. Dr Moisey reported that “in general, he demonstrates a degree of responsibility” and “in my clinical impression, there is no acute mental health issues or acute risk issues, although there is likely underlying ADHD, but at this point he feels it can be managed through his own effectively directed channels and does not require biological measures.” She concluded “as there’s no formal mental health diagnosis or any requirement by him for continuity of care, there is no follow up at this stage”. In response to the risk assessment questionnaire, Dr Moisey stated “there’s no diagnosed mental illness and therefore there’s no mental health impairment that will affect their ability to possess and use firearms that I am aware of”, and “in my clinical opinion, the Applicant’s condition or impairment does not have the potential to put public safety at risk should they have possession and use of a firearm”. She specified that she could not provide a response to questions about relapses and future risk because she had only assessed the Applicant on one occasion. In additional correspondence with the Respondent dated 1 August 2018, Dr Moisey confirmed her opinion, agreed that “if the information recorded by the police was accurate” regarding the allegations of previous incidents of self harm that her opinion regarding the Applicant’s mental health would change, and expressed her strong belief that “a clinician who has more regular input with him would be in a better position to support his request for his guns to be reinstated”. This accords with her previous comment that she was not willing to provide a report for the purposes of a firearms licence. She did not opine that he should be receiving ongoing clinical assistance.

31. In addition to the statutory declarations provided by the Applicant and his wife, character references were provided by friends, two of whom the Applicant had professional dealings over a number of years. Each of these addressed the Applicant’s character but only one, from Tabatha Kattau, referred to the allegations that the Applicant had threatened self-harm and made any assessment of risk in relation to the Applicant’s use and possession of firearms. I give reasonable weight to Ms Kattau’s reference, which was positive, and no weight to the other references of Tanya Coombs and Margaret Durie.

30. I accept the evidence of the Applicant, Paula Stokes and Dr Moisey’s reports and give them substantial weight. The Applicant and Mrs Stokes each presented as truthful witnesses, making appropriate concessions and their evidence was largely consistent. I accept that the arguments between the Applicant and his wife on 22 and 23 August 2017 were serious enough to warrant Mrs Stokes’ informing the police of her concerns, but that although these may have made reference to her fears of the Applicant self-harming, there was no mention by the Applicant of self-harming, no history of self-harm, and no actual intention of self-harm. Whilst Dr Moisey’s report was limited as a result of having assessed the Applicant on only one occasion and her reluctance to provide a report for a firearms risk assessment, I accept her opinion that the Applicant did not present with any mental illness warranting a diagnosis or additional consultations, and she did not consider that he posed a potential risk to public safety were he to possess and use firearms. I accept the Applicant’s and his wife’s explanation for his failure to attend additional psychiatric appointments, that the two follow up appointments with Dr Moisey were cancelled by the doctor, and there was a generalised difficulty in obtaining regular psychiatric appointments in the context of the Applicant’s employment and geographic location. I also accept the evidence that the changes made by the Applicant to his employment and lifestyle have had a positive impact so as to diminish any necessity for ongoing psychiatric treatment or clinical assessment.

31. The Applicant’s fitness and propriety to hold a firearms licence was not in issue in these proceedings, there being ample evidence of his safe and responsible firearms storage and possession and compliance with licensing requirements over a number of years. I give these matters considerable weight, but they are to be balanced against any concerns regarding the public interest, including risk to public safety.

32. On the evidence and submissions before me, the Applicant did not threaten or intend to misuse his firearms on 22 and 23 August 2017 at any time. He did not pose a risk to public safety then, and there was not any real risk of self-harm. The removal of his firearms as a safety precaution by the Police was appropriate in the circumstances but ultimately, on the evidence, not a necessity in hindsight. In my view, on the evidence before me there is virtually no risk to public safety were the Applicant to have possession and use of a firearm. The licensing system provides the Respondent with open opportunity to reassess the Applicant’s licence in the future, in the event that any concerns arise.

33. Access to firearms is a privilege. In circumstances where the Applicant has genuine and valid reasons for a firearms licence, a long history of appropriate possession, usage, storage and compliance with the licensing requirements over a number of years, no issues of fitness, propriety, or criminality, and no present or ongoing concerns regarding his mental health impacting on personal or public safety and protection, it is appropriate that his application for that privilege to be reinstated is successful. This affirms public confidence in the administration of the licensing system.

34. Accordingly, the Applicant’s licence should be reinstated.

Orders

1. The reviewable decision is set aside.

2. In substitution, the Applicant’s licence should be reinstated in accordance with these reasons for decision.

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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: 07 November 2019