Watkin v Commissioner of Police, NSW Police Force

[2022] NSWCATAD 393

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Watkin v Commissioner of Police, NSW Police Force [2022] NSWCATAD 393

Hearing dates:

27 September 2022

Date of orders:

9 December 2022

Decision date:

09 December 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

The decision to revoke the applicant’s Firearms Licence is affirmed.

Catchwords:

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

Legislation Cited:

Administrative Decisions Review Act 1997

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2017

Firearms Act

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

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

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

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

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Rhynne Watkin (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Geroge Sten & Co Solicitors (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2022/00180634

Publication restriction:

None

REASONS FOR DECISION

1. This is an application concerning the Commissioner of Police’s decision to revoke the applicant’s category AB Firearms licence made on 23 February 2022 and the decision on Internal Review made on 11 May 2022 to affirm that decision.

Introduction

2. The applicant in these proceedings is Ms Rhynne Watkin (“the applicant”), who at the time of the hearing was 36 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 continue to hold 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. The Commissioner decided to revoke the Licence. That decision was based on events involving the applicant where she experienced a mental health event on 24 March 2021, which led to her shooting her two dogs and disclosing that she would ‘turn the gun’ on herself. The applicant presented to Hospital and Dubbo Community Mental Health and was treated for a number of days.

Background

3. On 25 October 2012, the applicant was issued the Licence. The Licence had been renewed in 2012 and 2017 and was due to expire on 25 October 2022. The Licence was revoked on 2 February 2022.

4. The applicant is a stock carrier operating road trains throughout rural New South Wales and Queensland. The applicant also carries out feral animal harvesting and control in the Bourke and Cobar districts. In 2010, the applicant experienced a mental health episode. She was prescribed anti-depressant medication which she describes as “sometimes didn’t go well for me”.

5. The applicant was told on 6 March 2021 that she had a torn disc in her neck. She was prescribed pain medication, cephalexin. The applicant was going through a separation/divorce with her partner and was also experiencing other stressors related to her business. Some days later a friend noticed the applicant was not herself. The applicant’s neighbour also detected that something was not right and “kept a closer eye” on her. The applicant told her neighbour “I didn’t feel like I wanted to be around anymore, and I felt like I had nothing to live for.” The neighbour told the applicant to seek medical assistance and said she had a lot to live for, including her two pet dogs, her life and her job.

6. The applicant lives some 370km away from Dubbo. Dubbo is the town centre where the applicant was able to seek mental health assistance. Despite her attempts to arrange for a person to look after her two pet dogs, she said she was unable to do so. Her dogs were not used to being away from the applicant for long periods of time. They were never tied up, unless on the applicant’s utility. Her dogs spend most of their time inside with the applicant. They went everywhere with her.

7. On 23 March 2021, the applicant made the decision to destroy her dogs to enable her to get help from healthcare practitioners in Dubbo. The applicant’s neighbour picked her up the next day and she gave her guns to the local engineer, and her friend, to place in his gun safe.

8. The applicant attended on a counsellor in Dubbo. She and her neighbour stayed overnight at the request of the counsellor. The next morning the applicant (with her neighbour) attended the Dubbo Hospital with the counsellor. The applicant was admitted to the mental health unit. She said she was not allowed to leave. The applicant remained admitted for about five days and was discharged after consulting with specialists. She was discharged with a plan to attend follow up appointments and prescribed anti-psychotic medication. After consulting with her general practitioner, the applicant ceased taking the medication as she could not properly perform her work duties.

9. The Commissioner contends that the applicant informed a staff member with the Dubbo Community Mental Health team that she had shot her two dogs so they would not suffer separation anxiety when she used the gun to shoot herself. The Commissioner further alleged that the reasons the applicant did not follow through with attempted suicide was because her neighbour intervened. As a result of concerns held by mental health practitioners about the applicant, police were notified and her firearms were seized.

10. The main reason the Commissioner submits the decision under review should be affirmed is because the applicant ‘s conduct and mental health would cause the Tribunal to have significant concerns for public safety, and the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms, primarily that of the applicant’s safety and the revocation of her Licence is the correct and preferable decision. I agree. These are my reasons.

Jurisdiction

11. The Notice of Revocation was issued under the provisions of the Firearms Act 1996 - s 24. Relevantly, s 24 provides:

24 Revocation of licence (cf APMC 6, 1989 Act s 36, 1990 Reg cl 27)

(1)   A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.

(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if—

(a)   the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or

(b) in the case of a licensee who holds a class 1F licence or a visitor Licence authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997—the 1F licence or visitor Licence is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act.

(2)   A licence may be revoked—

(a)   for any reason for which the licensee would be required to be refused a licence of the same kind, or

(b)   if the licensee—

(i)   supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii)   contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii)   contravenes any condition of the licence, or

(c)   if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(c1)   if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d)   for any other reason prescribed by the regulations.

….

12. Clause 20 of the Firearms Regulation 2017 provides:

20 Revocation of licence—licence not in the public interest

The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

13. 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 third 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)   a condition imposed by the Commissioner on a licence or Licence issued to the person,

(c)   the revocation of a licence or Licence issued to the person (other than a revocation on the basis that the holder of the licence or Licence is subject to a firearms prohibition order or an apprehended violence order),

(d)   ..

(e)   …

(f)   …

(g)   …

(Emphasis added)

14. 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.

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

16. 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

17. The applicant filed her application for administrative review on 21 June 2022. The Internal Review decision was made on 11 May 2022. The application has been filed out of the 28 day prescribed period. On 26 July 2022, the time for filing the application was extended by the Tribunal to 21 June 2022.

Issues for determination?

18. 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?

19. 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

20. Exhibit ‘A-1’ - statement applicant 25 July 2022.

21. Exhibit ‘A-2’ - statement Terry MacInerny 30 June 2022.

22. Exhibit ‘A-3’ - statement Elke Hyermann 24 July 2022.

23. Exhibit ‘A-4’ - statement Kevin Hatch 25 July 2022.

24. Exhibit ‘A-5’ – report Dr Volceva 31 March 2021.

25. Exhibit ‘A-6’ - discharge notes (page 66-70 s 58).

26. Exhibit ‘A-7’ - medication chart 29 March 2021.

27. Exhibit ‘A-8’ – report Dr Pusey report 30 August 2022.

28. Exhibit ‘A-9’ - application with annexure filed 21 June 2022.

Respondent’s evidence

29. Exhibit ‘R-1’ documents filed under s 58 ADR Act on 8 August 2022.

30. Both parties were legally represented. They provided written submissions and made oral submissions at hearing. The applicant was cross-examined.

The applicant’s oral evidence

31. The applicant adopted her statement. She said she was prescribed pain relief medication soon after being diagnosed with neck pain in early 2021. She took the medication for four days and the subject incident occurred during that period when she was taking the pain relief medication.

32. In cross-examination the applicant denied that she stopped taking pain medication a week before her admission to the Dubbo mental health unit. She said she stopped taking the medication the on the day before the incident on 24 March 2021. This is consistent with the discharge notes recording that the applicant’s general practitioner said the medication was first prescribed on 19 March 2021.

33. The applicant denied an allegation which is recorded in the COPS event notes she told Community Mental Health that she shot her dogs to prevent separation anxiety when she turned the gun on herself. I do not accept her evidence in this regard. The hospital discharge notes record the applicant’s thought content at the time of her admission as being “I don’t want to be here (alive) … why should I be alive. I’ve got nothing to live for. …” she has plans to shoot herself and people should just let this happen. The applicant agreed in cross-examination that she did not remember telling the mental health team that she would use her gun to kill herself but recalled questions being asked about how she would take her own life. The discharge notes record the applicant telling staff that she planned to “shoot self”. I accept the contemporaneous record that the applicant had suicidal ideation to end her life by shooting herself. I am also satisfied that the entry in the COPS record is a more accurate record of what was said to the police by Community Mental Health by the applicant about her dogs.

34. The applicant agreed that she was experiencing stress and anxiety, including depression, before March 2021 and at the time of the subject incident. That stress included a divorce, business related matters and her being sued in relation to a motor vehicle accident. I am not persuaded with the applicant’s case theory that the 2021 episode was solely related to pharmacological induced depression.

35. The applicant had a previous admission to a mental health facility in South Australia in 2015. The circumstances involved the applicant being prescribed with medication for depression which caused her to have an adverse reaction. She described the reason for her admission as “things were not right in my head with the meds I was taking”. The applicant could not recall what the medication was she was prescribed and administered. In the discharge referral the following is recorded: “Mental health background and [a]dmission in SA 5-10 years ago, 2 days, AH telling her to jump on a train track; no drugs, physical illness, sleep deprivation; precipitated by medication (started for ? schizophrenia but no psychotic symptoms)”.

36. The applicant had a poor memory of the South Australian admission. I accept the notations as described above and give the circumstances moderate weight. I find that the applicant has had at least one other recorded mental health event in which she expressed suicidal ideation. The applicant said she did not seek any treatment after being discharged from the hospital in South Australia.

Evidence of Dr Pusey

37. The applicant relies on the evidence of Dr Paul Pusey clinical and forensic psychologist. Dr Pusey prepared a report dated 13 August 2022. Dr Pusey found the applicant “… is not acknowledging experience of elevated levels of distress, functional impairment or acuity with respect to endorsed psychopathology or personality patterns. … she may have made overt attempts to present herself in an overly positive light and/or minimise the extent or impact of endorsed psychopathology or personality patterns. …”

38. Dr Pusey finds that the applicant does not have symptoms of a psychological or psychiatric disorder. However, he found her profile after testing “she is likely to engage in impulsive behaviour as a function of not considering the consequence of a decision before engaging in it.” Although, her scores indicate it is, unlikely, that she will engage in impulsive behaviour.

39. I have given the report of Dr Pusey medium weight for the following reasons. The assessment was based upon a one off video interview. The documents briefed are listed on page one and do not include records of the applicant’s general practitioner. There are no medical records or reference to any follow up psychological sessions taking place after the subject incident. A large amount of Dr Pusey’s assessment is based upon the applicant’s self-reporting and there is little external corroborating documentation.

40. Dr Pusey found that the applicant may have tried to present herself in a favourable way, which is significant. I have taken this into consideration when deciding how much weigh to attach to Dr Pusey’s evidence. I find the applicant does has not engaged with the gravity of this finding in her evidence nor in submissions.

The Commissioners evidence

41. I have considered the s 58 bundle.

Character references

42. I have considered the three character references which all attest to the applicant’s good character. There is no doubt the applicant is a person of good character. She has no criminal or adverse convictions or involvement with police. The applicant is well regarded within her community according to her referees. Apart from the reference from Mr Hatch, there is no mention of the plaintiff’s mental health and a view about her fitness to hold a firearm.

43. The references support a finding that the applicant is a person of good character and standing in her community.

Applicant’s submissions

44. The applicant contends she has had only one major mental health incident, that being the March 2021 event. The applicant submits that the March 2021 event occurred on a background of her having a bad reaction to pain relief medication. Dr Pusey makes no finding of any mental health diagnosis and her suicidal thoughts can be seen as an isolated incident associated with her reaction to “drug induced depression”. He also finds the applicant is unlikely to engage in any impulsive behaviour which could lead to the applicant making decisions or choices without thinking through the consequences.

45. The applicant submitted that no finding should be made that she tried to end her life with her guns. It is submitted that the applicant gave her guns to her friend who kept them for safe keeping. If she wanted to kill herself, the applicant would not have done so.

44. The applicant contends that not every suicide attempt requires revocation of a firearms licence. The test is the likelihood of it happening again. There is no reasonable likelihood of a further attempted suicide, and use of guns affecting the safety of the public.

45. The applicant contends there is no danger to public safety in her holding a category AB firearm’s licence.

Commissioner’s Submissions

48. The Commissioner relies on written submissions and made oral submissions at the conclusion of the hearing. The Commissioner submitted that there were a number of matters which weighed against the applicant having access to firearms. The information in the COPS report raises significant concern about the risks posed by the applicant in experiencing suicidal ideation and acting upon those thoughts. The Commissioner contends the applicant showed an intent to use a firearm for suicide. She used her firearm in destroying her dogs and in doing so firearms were a central part of her plan. I agree.

49. The applicant has had two admissions to mental health facilities within 7 years, which is significant. Both admissions included thoughts of suicide and in the more recent event the applicant acted upon her thoughts.

50. The respondent said it should be concerning to the Tribunal that the applicant had a bad reaction to medication in 2015 and did not disclose that to her GP when getting pain medication in 2021. She could not recall the name of her pain med. If the applicant is aware, as she says she is, about having two major breakdowns, the Tribunal cannot be satisfied the applicant has insight in preventing this occurring again.

51. The notion of public safety in s 3 of the Act, incorporates the public safety to the person themselves. In terms of the broader community, if the applicant had completed her plans, a number of people in community would suffer trauma, with receipt of that news.

52. The applicant has not provided any documentary evidence of any follow up treatment upon her discharge from her 2021 admission. In the context of Dr Pusey finding that she may have a tendance to minimise certain events, and portraying herself in the best light, it could be found that the applicant may have not engaged with the seriousness of her mental health.

53. The Tribunal cannot be satisfied that there is virtually no risk to public safety.

My consideration

54. 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 previous attempt to commit suicide.

Public interest

55. 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…

56. 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.

57. 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. ….

58. 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.

59. 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. ….

60. 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].

61. 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

62. 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) or because of the applicant’s “being of unsound mind” (s 11(4)(c)).

63. 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".

64. The applicant has had two major mental health episodes in the last seven years. Each incident involved the applicant expressing suicidal thoughts.

65. 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.

66. The Commissioner relies on the two incidents, the first being the South Australian admission. The applicant had little memory about the incident. She was administered anti-depressant medication to which she had a bad reaction. I accept the applicant did not attempt suicide on this occasion, but rather, expressed suicidal thoughts. There is no evidence of any real suicidal intent. 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, and I so find.

67. The second and more relevant incident is the event occurring in March 2021. As indicated above, I have found that the applicant more likely than not destroyed her dogs to avoid separation anxiety after she suicided by shooting herself. I do not accept the applicant’s explanation that the best way to humanly care for her dogs when she sought mental health treatment was to destroy them with her gun. She had other alternatives, which could have included, taking the dogs to a vet, possibly a pound or the local council, or a friend. I have considered that the applicant said she made a few phone calls for someone to help her to no avail. I place less weight on that evidence as the applicant makes a broad statement in this regard and did not provide any detail of those persons she contacted nor a statement from them. The applicant says that she did everything with her dogs, taking them shopping, to funerals holidays, everywhere. It is not plausible in these circumstances that she would destroy her dogs so she could get access to mental health services. I prefer, and accept, the notation in the COPS report as being more correct that the applicant said she destroyed her dogs to prevent separation anxiety after she intended turning the gun on herself if a friend did not take the gun off her. I find the that the episode was an actual suicide attempt. The applicant planned her suicide and partly executed it by destroying her dogs. The notations in the discharge summary referred to above set out the applicant’s state of mind on presentation to hospital, which supports her attempted suicide.

68. 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].

69. 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].

70. I accept that Dr Pusey has found that the applicant does not have a psychiatric or psychological condition showing a substantial impairment in her mental health. I also accept that the applicant has shown improvement in her mental health since the March 2021 incident. However, it is significant in my view that the applicant’s suicide attempt in March 2021 involved the use of a firearm. This is compounded by Dr Pusey’s finding that the applicant demonstrates a propensity to act impulsively, albeit unlikely, and does not consider the consequences of a decision before engaging in it. This in my view is what happened when she decided to destroy her two dogs.

71. I am not 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 reasonable cause for the belief in s 11(4)(b).

72. 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 unsound mind.

Public Interest

73. 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.

74. I have found that by reason of the recent 2021 suicide attempt and the applicant’ propensity to act impulsively, albeit unlikely, and does not consider the consequences of a decision before engaging in it, the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms.

75. In the circumstances I conclude there is a real and appreciable risk that the applicant may again use a firearm to execute, in part, or in full a plan to suicide. This places both the applicant and the public at risk. It is not in the public interest for the applicant to continue to hold his firearms licence.

Order

1. The decision under review is affirmed.

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

Registrar

Decision last updated: 09 December 2022