Wilkinson v Commissioner of Police

[2023] NSWCATAD 192

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Wilkinson v Commissioner of Police [2023] NSWCATAD 192

Hearing dates:

26 May 2023

Date of orders:

24 July 2023

Decision date:

24 July 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M. Griffin, Senior Member

Decision:

(1) The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – Firearms – Licensing –- False or misleading information - Public Interest – Fit and Proper Person

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:

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

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

Director of Public Prosecutions v Smith [1991] 1 VR 63

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

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

Lee v Commissioner of Police [2020] NSWCATAD 144 at [94]

LY v Commissioner of Police, NSW Police [2004] NSWADT 115

Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137

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

Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Luke Edward Wilkinson (Applicant)
Commissioner of Police (Respondent)

Representation:

Richard Wise Solicitor (Applicant)
Makinson D’Apice Lawyers (Respondent)

File Number(s):

2022/00375699

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. The applicant seeks administrative review of the internal review decision of the respondent dated 15 November 2022 which refused his application for a Category AB Firearms Licence.

Background

2. On 22 February 2022 the applicant applied for a firearms licence. On 9 March 2022 the respondent refused that application. On 29 March 2022 the applicant sought internal review of that decision. On 15 November 2022 an internal review decision was made, affirming the refusal, pursuant to section 11(7) of the Firearms Act 1996, on the basis that issue of the licence would be contrary to the public interest, section 11(1) of the Act which prescribes that the Commissioner may refuse an application and section 70 of the Act which prescribes that a person must not, in connection with an application under the Act or regulations, make a statement or provide information that the person knows is false or misleading in a material particular.

Evidence

3. The applicant tendered the following documents: his statutory declaration dated 28 April 2023, two psychological reports by Mr Peter Watt psychologist dated 22 April 2023 and 27 February 2023, a chronology of events, a letter from the applicant's parents dated 11 March 2022, a statutory declaration made by the applicant on 25 March 2022, a criminal history dated 23 March 2022 and a statutory declaration by the applicant's parents dated 8 December 2022.

4. As well as the documents required to be filed by section 58 of the Administrative Decisions Review Act 1997, the respondent tendered documents produced on summons issued to Mudgee District Hospital, Mudgee Medical Centre and Outright Psychological Services (Peter Watt).

5. At the Tribunal hearing the applicant gave sworn evidence and was cross examined.

Respondent’s submissions

6. The respondent submits the applicant contravened section 70 of the Act by providing false declarations in the following material:

1. A P605 Declaration - Person shooting at an approved range or undertaking a Firearms safety training course, completed on 3 February 2022 and subsequently provided to the firearms registry, in which the applicant answered ‘no’ to the following questions:

Have you in NSW or elsewhere:

1. ever attempted suicide or self-harm?

2. In the past 12 months been treated or referred for treatment for alcoholism, drug dependence or a mental illness within the meaning of the Mental Health Act 2007 or as a mentally disordered person within the meaning of that Act?

2. The firearms licence application, completed on 22 February 2022, in which the applicant answered ‘no’ to the following questions:

1. Have you ever attempted suicide or self harm?

2. Have you in the past 12 months, been referred or treated for a mental or nervous disorder or illness?

3. The statutory declaration, sworn 25 March 2022, in which the applicant declared:

“Since [2006/2007] the only medical issue I have been treated for is a broken hand and migraines and started presenting with chronic fatigue two years ago... It took a lot of testing to try and figure out the cause of my fatigue and to try and manage my migraines I have been prescribed several different medications for migraines including Rizatriptan and Sertraline”.

7. In the support of those submissions, the respondent refers to NSW police reports that on 23rd of September 2006 the applicant ingested paracetamol in an attempt to commit self-harm and on 9 December 2006, he disclosed to police he had tried to cut his wrists earlier that day. The respondent also refers to the hospital record which states that on the 23rd of September 2006 the applicant presented to the hospital with suicidal intent and stated that he wanted to die. He was subsequently referred by the emergency department to the mental health programme. On 9 December 2006 the applicant presented to the hospital with “self-inflicted wounds to both inner arms”. The respondent also refers to the medical records from the applicant’s Mudgee general medical practice, which state that on 6 August 2021 and on 7 September 2021 the applicant was diagnosed with depression. This diagnosis is listed under “active past history” on a patient health summary printed on 21 March 2023 and Sertraline is listed under current medications. Sertraline is a type of antidepressant known as a selective serotonin reuptake inhibitor (SSRI), often used to treat depression. The respondent refers to the medical centre notes of 15 March 2022 in which a doctor wrote “encourage to see psychologist/psychiatrist but patient declined” and “he is on SSRI at present”. The respondent notes that ten days later, on 25 March 2022, the applicant made his statutory declaration to the firearms registry.

8. The respondent submits the applicant deliberately did not include a reference to his depression diagnosis in his statutory declaration, nor identify that he was prescribed Sertraline as treatment for his depression, to mislead the firearms registry to grant him a firearms licence. The respondent submits the applicant has provided false and misleading information in failing to disclose two incidents of self-harm in 2006.

Applicant’s submissions

9. It is submitted the applicant did not intend to mislead or provide false information. He is currently employed in a responsible position as a council ranger which required him to pass a police check, psychological evaluation and drug testing. It is submitted the psychological evaluation in the two reports by Mr Watt show the applicant is not a risk to public safety or to himself. Page 3 of the submissions, at serial 1 states “The ingestion of the paracetamol tablets was a reaction to a difficult situation involving Luke’s then girlfriend. Mr Watt concludes it was not a serious attempt at suicide”. And serial 2, states “Luke says he scratched his wrists on a barbed wire fence scaling a fence at a property and that he was treated at Mudgee Hospital. He has no recollection of the Police keeping an eye on him. Mr Watt reaches the same conclusion that it was not a serious attempt at suicide”.

10. The 25 March 2022 statutory declaration states, “to the best of my knowledge, the only time I had scratches on my wrist was back in 2006 / 2007 and I am unable to recall if this was something I had done or was sustained in scaling a barb wire fence in order to elude my parents in a chase… in retrospect, the reason I did not select ‘yes’... Was that I did not believe the event to be a serious attempt at suicide or self-harm, as I was calling an ambulance as I was doing this, it was more to try and make my parents feel more sympathetic towards me at this troubled stage.” The submission at Page 3 states, “the failure to fill out the declaration correctly can be explained by the passage of time and the fact that in Luke’s perception they were not regarded as serious incidents of self-harm".

11. The statutory declaration of 28 April 2023 states, “antidepressants such as sertraline are also often prescribed for chronic fatigue… while it is true that there has been no official diagnosis of this, in those same medical records produced, there are a total of 6 appointments with complaints of lethargy, tiredness, persistent tiredness, low energy and tired all the time, with a general lack of motivation to do things because of constantly troubling struggling with tiredness all the time. There have been discussions about depression and that none have resulted in an answer of being ‘yes I feel depressed’. Out of those six visits, five were with the same doctor and the one new Doctor asked if I wanted to try sertraline, explaining it was a type of antidepressant which may help, to which I said if you think it might help. Upon accepting the word of advice from this GP, they have decided to classify me as having depression simply because I do not feel like going for bike rides with mates”.

12. The declaration continues, stating “I had no understanding that I was even reported as being depressed…until the day I had my appointment with Doctor Watt and he asked for a patient summary and I saw it printed on the front. At no point in any part of any conversation or consult was I told that I was under the assumption of having depression and at no stage had I ever mentioned that I felt depressed.”

13. The letter from the applicant’s parents dated 11 March 2022 states that the applicant from childhood spent time with his parents on farming properties and on many occasions when they were using firearms for the eradication of feral pests and he was taught from a young age the precautions required when using firearms. They state “we do not believe Luke knowingly provided false information on his application. We never considered that event as a serious attempt at self-harm and in the intervening years have not had the slightest cause for worry as to Luke's mental health”. The parents’ statutory declaration of 8 December 2022 also refers to many occasions he was with his parents using firearms for the eradication of feral pests and the training that he was given about safety requirements for the use of weapons. It states, “after leaving school, Luke's social network changed completely and unfortunately... He made some very silly and serious mistakes... These mistakes were made worse when he attempted to overdose on paracetamol... Luke has also never cut his wrists, however, again to cause a scene may have told police the scratches he received while he was running away from us were self-inflicted.”

Legislative framework

14. The general principles and objects of the Firearms Act 1996 are set out in s 3 which provides, relevantly:

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

15. Section 11 of the Act relevantly provides:

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

…

(3) A licence must not be issued unless -

(a)    the Commissioner is satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.

…

(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.

16. Section 70 of the Act states:

70   False or misleading applications

A person must not, in or in connection with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular.

Maximum penalty—imprisonment for 14 years if the application relates to a pistol or prohibited firearm, or imprisonment for 5 years in any other case.

Consideration and findings

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

18. The Tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct (McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357). As the use of the word "may" in s 11(1) of the Firearms Act makes clear, the Commissioner has a discretion to issue a licence. The Act provides no explicit guidance on how that discretion should be exercised.

19. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearm possession and use is a "privilege that is conditional on the overriding need to ensure public safety". Consistently with that approach, the Act confers on the respondent the ability to refuse a firearm licence in circumstances where it is considered that the holding of a licence is not in the public interest.

20. The Appeal Panel has described the "public interest" as "an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual": Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]. The concept is invoked in order 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": Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681. In this context the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Huckel v Commissioner of Police [2008] NSW ADT 347, [41].

False or misleading: section 70

21. The issue is whether the applicant knew the answers ‘no’ to the questions about self-harm and mental health were false or misleading in a material particular. He says they were not, because he didn’t believe they were serious attempts at self-harm and he did not have any mental health issues.

22. The applicant gave sworn evidence and was cross-examined. Page 10 of the P650 Declaration was shown to him where he had marked ‘no’ to the self-harm question. He said, “That is correct, I deny ever attempting self-harm”. He was shown the NSW police report (page 9 s.58 documents) which states “Tried to cut wrists early AM on 9.12.2006”. He said he had not read these documents in detail and “I accept that I told the police that”. The page 10 ‘no’ declaration was put to him again as being false. He said, “No, it’s correct”.

23. The applicant was asked if what he told the police about cutting his wrists was a lie. He said it was a lie. He was asked if he had been misleading the police. He said, “16 years ago, yes”. He was shown his solicitor’s letter to the firearms registry (p.25 s.58 documents) which states “Mr Wilkinson strongly refutes any statement that suggest (sic) he said words to the effect of “I tried to cut my wrists” and further denies the action in its entirety”. He adopted those words in the letter. He was then shown again his statutory declaration that “the only time I had scratches on my wrist was back in 2006/2007 and I am unable to recall if this was something I had done…”. He said that was correct. He was shown various hospital records (Supp pp. 5, 15, 17) of 9 December 2006 that show “attempted suicide”, “wants to die”, “self-inflicted wounds to wrists”. He said, “I may have attempted to create that impression”.

24. The psychologist, Mr Watt, stated in his first report that he had considered, among other things, the applicant’s patient summary from the Mudgee Medical Centre. He wrote “The summary indicated a diagnosis of depression on 6 August 2021 and 7 September 2021...Mr Wilkinson reported at this assessment that he took the medication for one month back in 2021, under the directions of his GP...He stated that he has fully recovered from the depressive episode. He said that he was experiencing some sort of chronic fatigue at the time…There was a brief depressive episode in 2021 documented that is of some concern. It appears that he has fully recovered from this and no longer takes medication. If the tribunal were to want to exercise some caution, given the seriousness of the events back in 2006 and non-disclosure with his application, then a conditional licence could be granted for two years with the use of a category A rimfire firearm.”

25. In his second report, Mr Watt wrote, “It does not appear, from reading the medical records, that Mr Wilkinson was attempting to deceive the firearms registry regarding mental health issues. He did however not disclose the incidence of self-harm in 2006 when applying for his firearms licence in 2022 and I understand the hesitation regarding granting Mr Wilkinson with the firearms licence on the grounds of not being a fit and proper person due to the non-disclosure...It is therefore recommended that Mister Wilkinson would benefit from brief therapy regarding the lack of disclosure with his application in 2022 and obtain psychoeducation to discuss the past incidents more fully and to discuss relapse prevention strategies relating to early signs of depression and strategies to manage such a condition if it were to occur in the future. I submit that the therapy through psychoeducation be applied and completed with a brief progress report prior to the tribunal making a final decision on the appeal regarding the refusal of issuing a firearms licence. Should Mr Wilkinson agree to a brief period of therapy and psychoeducation, and finding no issues of concern, then I would maintain the view that he is a fit and proper person for holding a firearms licence.”

26. I had the benefit of observing the applicant give evidence in chief and under cross-examination. His evidence contained inconsistencies and contradictions and left me with the clear impression that he was not being wholly truthful. He confirmed his statutory declaration, which states he could not recall if the scratches on his wrists were something he had done. He also confirmed the written submission that he strongly refutes saying, “I tried to cut my wrists”. However, when shown the police record, he admitted saying those words and, that he had deliberately lied to the police and hospital staff.

27. The later statutory declaration states, “I had no understanding that I was even reported as being depressed…until the day I had my appointment with Doctor Watt, and he asked for a patient summary and I saw it printed on the front. At no point in any part of any conversation or consult was I told that I was under the assumption of having depression and at no stage had I ever mentioned that I felt depressed.” However, neither of the two declarations says anything about the recorded recommendation made by Dr Tan on 15 March 2022, just 10 days before the first statutory declaration, that he “see a psychologist/psychiatrist, but pt [patient] declined”. I accept that written record and do not accept the applicant’s evidence that he “had no understanding that I was even reported as being depressed”. I accept the substantial police and hospital records that confirm the applicant had expressed and acted on suicidal ideation on 2 separate occasions in 2006. I do not accept that he believed these incidents were not serious matters that he should have disclosed by answering yes on the relevant documents. I can only conclude he knew this was a material particular and he chose to mislead the police. I find the applicant knowingly and deliberately provided misleading information in breach of section 70 of the Act.

The public interest: section 11(7)

28. The expression “public interest” is not defined in s 11(7) or elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the ‘public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

29. The Applicant requires a firearm to spend time with his parents, as he did in childhood, helping to eradicate feral pests on family and friends’ rural properties. Private interests, however, are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an 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 at [33]. The concept includes 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] 1 VR 63. Accordingly, the Applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest.

30. Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the “fit and proper person” test, the principle in Ward has been held to apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [77]. The question of risk is not to be viewed as requiring an Applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66].

31. The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].

32. In Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 at [32], Montgomery JM, when considering the question of public safety, stated that, only real and appreciable risk needs to be taken into account and that minimal, fanciful or theoretical risk can be excluded from consideration. The applicant’s medical records contain a diagnosis of depression and treatment for depression which he denies. He says it was a mix-up about chronic fatigue and sinusitis. He says there was no mental health issue. I do not accept that claim. On 6 August 2021 he saw Dr Egan who recorded, “Reason for visit: Depression” and “Diagnosis: Depression”. On 7 September 2021 he again saw Dr Egan who recorded “Reason for visit; Depression”. He saw Dr Tan on 13 January 2022 and again on 15 March 2022, when he recorded “Depression” as the reason for the visit and recommended the applicant consult a psychiatrist or psychologist.

33. I note that Mr Watt read that patient medical summary and accepted the record of “a brief depressive episode in 2021” and that in 2022 “It was noted that the reason for the visit was for depression and that Mr Wilkinson was encouraged to see a psychologist or psychiatrist but declined”. Moreover, Mr Watt wrote “Mr Wilkinson would benefit from brief therapy regarding the lack of disclosure…to discuss the past incidents more fully and to discuss relapse prevention strategies relating to early signs of depression…”. The issue is not the applicant’s mental health at the relevant time but his repeated claims that he had not had a diagnosis of depression. His mental state is uncertain but two of his doctors diagnosed depression, one recommended he see a psychiatrist and his psychologist, who does not challenge the depression diagnoses, recommends further “psychoeducation”. In all the circumstances, I am satisfied the risk of granting a firearms licence to the applicant is real and appreciable. I find it would not be in the public interest to grant a firearms licence to the applicant.

Fit and proper person – section 11(3)

34. Section 11(3) of the Act requires that the Tribunal be 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.

35. The question whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities: per Toohey and Gaudron JJ at 380. See also Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28 (1955), Re Percival and Australian Securities Commission [1993] AATA 196, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALP 794 at [41].

36. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she “is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.” In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a firearms licence the decision-maker is to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms

37. The applicant has admitted to lying to police and hospital staff. Those events happened some 16 years ago but the applicant has continued to demonstrate the same lack of candour in dealing with the police in recent times. I am satisfied he has deliberately set out to mislead the police by obfuscation and omission of relevant information. I accept that he holds a responsible position in a government role but in this matter, he has not shown he “is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited”. I am not satisfied 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.

38. For these reasons, I find that sections 70, 11(3)(a) and 11(7) of the Firearms Act operate to exclude the Applicant from being granted or holding a firearms licence.

Decision

1. The decision under review is affirmed.

**********

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

Amendments

24 July 2023 - Removed full name of Applicant on the heading of the decision.

Paragraph 10, last line did not have the close quotation mark.

Decision last updated: 24 July 2023