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[2013] NSWADT 5
appellant. The Commissioner's decision to revoke the applicant's firearms licence is set aside.
A man with long-standing depression tried to end his life by taking a large overdose of tablets after losing his job and arguing with his wife. Police took away his guns because of that attempt. His psychiatrist and psychologist, who had treated him before and after, said the attempt was a one-off, he had gained new insight, was doing well on medication, and was very unlikely to try again or to use a gun if he did. The Tribunal decided that a suicide attempt does not automatically mean permanent loss of a firearms licence. Instead, the law requires an objective look at how likely another attempt is and whether a gun would be involved. On the evidence the risk was low, the doctors' views were accepted, and there was no reason to think the public would be unsafe. The revocation was overturned and the licence could be restored.
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AML was a 50-year-old man who had been diagnosed with depression since at least 1997 and had lawfully possessed rifles for sport and target shooting and recreational hunting for more than 35 years. He held a Category AB firearms licence and owned six firearms. In early March 2012 he was made redundant from his senior managerial position. On 27 March 2012, immediately after an argument with his wife of 27 years, he drove into the forest, ingested approximately 100 tablets around midnight, fell asleep, woke the next morning and drove home. He later described experiencing an “epiphany” upon realising the attempt had failed: he recognised that he loved his wife and wished to grow old with her. After feeling the physical side-effects he contacted his wife, a registered nurse, who took him to hospital.
While in hospital a nurse recorded a note that AML’s wife had said he had threatened suicide before Christmas and that she had threatened to remove the guns; AML denied any express threat, recalling only a comment that his wife would be better off without him. Neither the nurse nor the wife gave evidence. AML had been under the care of psychiatrist Dr Kealy Bateman since October 2011 and psychologist Mr Tyrer since September 2011. Both continued treating him after the attempt. Dr Bateman diagnosed a Major Depressive Disorder with the most recent episode in remission. He provided two reports in the four months preceding the hearing stating there was “no current risk” that AML’s condition would impair his ability to exercise continuous and responsible control over firearms. Mr Tyrer provided three reports, describing the overdose as a “one off” with no pattern of self-destructive behaviour, noting AML’s regular attendance at treatment, his management of normal stressors in a healthy manner, and his unblemished history with firearms. AML’s wife unreservedly supported restoration of the licence.
The Commissioner of Police revoked the licence on two grounds: first, that there was reasonable cause to believe AML may not personally exercise continuous and responsible control over firearms because of the suicide attempt (Firearms Act 1996, ss 24(2)(a) and 11(4)(b)); second, that it was not in the public interest for him to continue to hold the licence (s 24(2)(d) and cl 19 of the Firearms Regulation 2006). All six firearms were confiscated. AML applied for merits review in the Administrative Decisions Tribunal. The hearing took place on 18 December 2012. The only disputed factual matter was the alleged prior threat; the Tribunal was not satisfied that any express threat had been made. All other material facts were undisputed. On 10 January 2013 Deputy President Magistrate N Hennessy set aside the revocation.
The Tribunal began by identifying the two alternative statutory grounds relied on by the Commissioner and noting that both must be read against the objects of the Firearms Act 1996, which confirm firearm possession and use as a privilege conditional on the overriding need to ensure public safety ([5]-[6]). Because the proceeding was a merits review, the Tribunal’s task was to determine the correct and preferable decision on the material before it (Administrative Decisions Tribunal Act 1997, s 63).
The Commissioner contended that the Tribunal could only be satisfied that AML should retain his licence if it concluded there was “virtually no risk”. That phrase had appeared in the Tribunal’s earlier decision in Ward v Commissioner of Police [2000] NSWADT 28 at [28]. The Tribunal explained that the comment in Ward was made in the context of the “fit and proper person” test and must not be treated as a judicial gloss that replaces the statutory language of the reasonable cause test or the public interest test ([7]-[8]). A similar clarification was given in respect of the Commissioner’s reliance on Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218. The passage in Hill at [28] that appeared to endorse “erring on the side of caution” and guaranteeing no repetition was merely a recitation of counsel’s submission; it did not rewrite the public interest test to make revocation mandatory ([9]-[10]).
When applying the reasonable cause ground the Tribunal asked whether the previous suicide attempt gave rise to an objective belief that AML may not exercise continuous and responsible control over firearms. Citing State of New South Wales v Taylor [2001] HCA 15 at [10], the Tribunal confirmed the test is objective ([21]). It emphasised that not every suicide attempt will justify revocation. The decision-maker must evaluate two distinct likelihoods: the chance that the person will attempt suicide or self-harm again, and the chance that, if that occurs, a firearm will be the means used. There was no suggestion AML posed any risk to others, and the purpose for which he held the licence was irrelevant ([22]).
On the evidence the Tribunal accepted the opinions of both the psychiatrist and the psychologist that AML was highly unlikely to attempt suicide again. That view was founded on the immediate improvement in mental state after the attempt, the continuing improvement over the ensuing eight months, the absence of any prior self-harm history, AML’s compliance with treatment, his increased insight, and the fact that the overdose had followed a discrete trigger (redundancy and marital argument) rather than forming part of a pattern ([23]). The Tribunal expressly rejected the Commissioner’s submission that an applicant must complete a course of treatment and enjoy a lengthy period of stability before the tests can be satisfied; while both matters are relevant, they are not mandatory prerequisites ([23]).
The Tribunal further found that, even if another attempt occurred, it was highly unlikely a firearm would be used. AML had an unblemished 35-year history with firearms and had not contemplated using them to self-harm on the occasion in question ([24]). The alleged prior threat was not accepted because it rested on a second-hand note that was denied and not tested by direct evidence ([12]-[13]). Other matters raised by the Commissioner—previous attempts to reduce medication, a missed appointment, and a flippant hospital remark—were either explained or found insignificant on the evidence ([14]-[16]). No additional public interest considerations were identified ([25]). Accordingly, neither ground for revocation was established and the correct and preferable decision was to set the revocation aside.
Prior to this decision the Tribunal had, in Ward v Commissioner of Police [2000] NSWADT 28, used the expression “virtually no risk” when considering whether a person who had assaulted his partner remained a fit and proper person to hold a licence. In Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the Tribunal had appeared to approve a submission that, given serious lack of judgment, the public interest required decision-makers to “err on the side of caution” and guarantee by revocation that a similar incident would not recur. These formulations had been relied upon by the Commissioner in internal reviews and in contested matters as creating a high threshold that effectively required an applicant to prove absolute safety.
This judgment reframed the law by insisting that the statutory tests must be applied in their own terms. The “virtually no risk” observation was confined to its original context and could not be imported as a substitute test for the reasonable cause ground or the public interest ground ([7]-[8]). Likewise, the language of guarantee or mandatory revocation in Hill was identified as an overstatement of counsel’s submission rather than a statement of legal principle ([9]-[10]). The decision reinforced that the reasonable cause test is objective (citing Taylor at [10]) and that the public interest assessment involves a calibrated exercise of judgment on all the evidence rather than a precautionary rule that treats any suicide attempt as decisive.
After the decision the law requires a structured, evidence-based inquiry. Decision-makers must separately evaluate the probability of a further self-harm event and the probability that a firearm would be chosen as the method. Medical evidence of improvement, insight, treatment compliance and the absence of any prior firearm-related self-harm history can be decisive. The judgment makes clear that a suicide attempt is a serious matter that will often justify revocation, but it is not an automatic or permanent bar. The statutory privilege language remains the lodestar, yet it is applied through nuanced risk assessment rather than blanket policy. The decision therefore narrowed the gap between the strict wording of the Firearms Act and the more absolute glosses that had sometimes been placed upon it in earlier Tribunal reasoning.
At [21] the Tribunal states: “When applying the reasonable cause test, the decision maker must ask whether the applicant’s previous attempt gives rise to a reasonable cause to believe that he or she may not personally exercise continuous and responsible control over firearms. The test, in context, is an objective one: State of New South Wales v Taylor [2001] HCA 15 at [10], Gleeson CJ, McHugh and Hayne JJ.” In plain English this means the question is not whether the decision-maker subjectively fears a risk, but whether a reasonable person, looking at the facts, would believe there may be a problem with the applicant’s future responsible control of guns. The High Court citation anchors the test in orthodox administrative law.
Paragraph [22] contains the pivotal proposition: “Not every suicide attempt will justify the revocation of the person’s firearms licence. The Tribunal must assess the likelihood that AML will attempt suicide or self-harm again and, if that happens, the likelihood that a firearm will be used.” This translates to a two-step probability analysis. A suicide attempt is a red flag, but the law still requires the Tribunal to ask “how likely is another attempt?” and “if there is another attempt, how likely is it that a gun will be chosen?” Only if those combined probabilities create reasonable cause to doubt responsible control can the licence be taken away.
At [23] the Tribunal rejects a rigid checklist: “I do not accept the Commissioner’s submission that before the reasonable cause test or the public interest test can be satisfied, an applicant must complete a course of treatment and enjoy a lengthy period of stability following that treatment. While both effective treatment and a lengthy period of stability are relevant, they are not mandatory.” Plain English: there is no fixed waiting period or compulsory counselling box that must be ticked. Treatment and stability help the Tribunal decide the level of risk, but their absence does not automatically bar relief if other evidence shows the risk is low.
The clarification of earlier authority at [8] is also important: “The ‘virtually no risk’ comment was made in the context of the ‘fit and proper person’ test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests.” In everyday language the Tribunal is warning practitioners and police not to replace the words Parliament chose with a shorthand phrase from an earlier case. The Act says what it says; earlier judicial shorthand cannot override it.
This decision is triggered by a fact pattern in which an applicant has made a single suicide attempt by means other than a firearm, the attempt follows an identifiable acute stressor (such as sudden redundancy and marital discord), there is no history of previous self-harm or threats linked to firearms, the applicant has a long record of responsible firearm ownership, and treating mental health professionals provide clear, recent opinions that the risk of recurrence is low and that the applicant understands his condition and is compliant with ongoing treatment. The presence of an “epiphany” or immediate positive change in insight after the attempt strengthens the case. The Tribunal will be wary of second-hand, untested allegations of prior threats.
Conversely, the precedent is not engaged, or is readily distinguished, where there have been multiple attempts, where the applicant has previously contemplated or threatened using a firearm for self-harm, where medical evidence is absent or contradictory, where the applicant has been non-compliant with treatment, or where there are additional public safety concerns (for example, history of violence towards others or misuse of firearms). The decision makes plain that the enjoyment the applicant derives from shooting or the length of time he has held a licence are neutral; they neither help nor hinder once the risk assessment is complete. The pattern therefore centres on a credible, evidence-based demonstration that the combined probability of further self-harm and firearm use is so low that no reasonable cause for concern exists.
The judgment has been treated as a principal authority that confines the “virtually no risk” formulation to its original context and insists upon fidelity to the statutory language. Later decisions have cited the structured two-stage likelihood analysis set out at [22] when assessing suicide attempts. The clarification that treatment and stability are relevant but not mandatory has guided the weight given to medical evidence in subsequent merits reviews. The emphasis on objective assessment drawn from Taylor has been followed when the Commissioner has sought to rely on subjective or precautionary reasoning. The decision’s treatment of Hill has been used to prevent the public interest ground from being converted into an automatic revocation rule. Overall the reasoning has been followed rather than distinguished in cases involving isolated suicide attempts supported by strong, consistent expert evidence of low risk. It stands as an important corrective against overbroad application of earlier Tribunal dicta.
The judgment leaves open precisely how much weight should be given to the passage of time between the attempt and the hearing. While eight months of improvement was sufficient on these facts, the decision does not prescribe a minimum period. It also does not address the situation where an applicant has made more than one attempt or where the method chosen on a prior occasion involved a firearm; different probabilities may then arise. The interaction between the reasonable cause ground and the separate “fit and proper person” ground remains untested in this specific context. Questions persist about the standard of proof required to establish that a firearm “would not” be used, given that absolute certainty is acknowledged to be impossible. Finally, the weight to be afforded to an applicant’s own insight or “epiphany” when it is not corroborated by objective testing or long-term follow-up is not settled. These issues will require future cases to refine the calibrated judgment the Tribunal described.
Introduction 1The Commissioner of Police revoked AML's firearms licence after he attempted suicide by overdosing on pills. Despite medical reports supporting the reinstatement of his licence, the Commissioner says that it is too soon for the Tribunal to be satisfied that AML poses 'virtually no risk' to himself. The test is whether there is reasonable cause to believe that AML may not personally exercise continuous and responsible control over firearms because of the previous suicide attempt. In my view the suicide attempt does not give rise to such a belief, nor is it in the public interest to revoke AML's licence.
Background 2AML is a 50 year old man who has been diagnosed with depression since at least 1997. He held a Category AB firearms licence which entitled him to engage in sport/target shooting and recreational hunting. He has owned rifles for over 35 years and currently has 6 firearms, all of which have been confiscated pending the Tribunal's decision. 3AML has been married for 27 years and has held senior managerial positions in the private sector. He has been made redundant three times, the most recent of which was in early March 2012. On 27 March 2012, immediately following an argument with his wife, AML drove into the forest and took 100 tablets around midnight. He went to sleep, woke in the morning and drove home. He said that after realising that his suicide attempt had been unsuccessful he had an 'epiphany.' He realised that he loved his wife and that he wanted to grow old with her. He did not want to die. After feeling the side effects of the overdose, AML contacted his wife, who is a registered nurse, and she drove him to hospital. 4A psychiatrist, Dr Kealy Bateman, and a psychologist, Mr Tyrer, were treating AML prior to the suicide attempt and have continued to treat him since then. Both provided reports expressing their opinion that AML's licence should not be revoked.
5The Commissioner relies on two alternative bases for revoking the licence. The first is that there is "reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of any previous attempt by the applicant to commit suicide or cause a self-inflicted injury": Firearms Act 1996, s 24(2)(a) and s 11(4)(b). I will refer to this ground as the "reasonable cause" ground. The second basis is more general - that it is not in the public interest for the licensee to continue to hold the licence: Firearms Act 1996, s 24(2)(d) and Firearms Regulation 2006, Cl 19. I will refer to this ground as the "public interest" ground. 6Both these grounds accord with one of the principles of the Firearms Act which is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." When reviewing the Commissioner's decision to revoke the licence, the Tribunal is to decide what the correct or preferable decision is having regard to the facts and the law: Administrative Decisions Tribunal Act 1997, s 63. 7The Commissioner submitted that there must be "virtually no risk" before the Tribunal could be satisfied that AML should retain his firearms licence. That phrase comes from a decision I made in 2000 - Ward v Commissioner of Police [2000] NSWADT 28. I set aside the Commissioner's decision to revoke Mr Ward's firearms licence because I was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence: 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk. 8The "virtually no risk" comment was made in the context of the "fit and proper person" test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests. 9In the internal review decision, the Commissioner referred to a comment the Tribunal made in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218. In that case the Tribunal affirmed the Commissioner's decision to revoke Mr Hill's firearms licence in circumstances where his 15 year old son had accidentally shot his friend in the leg while they were hunting for wild pigs. The Commissioner justified the revocation on the ground of public interest. The Tribunal said at [28]: It is of course impossible to say with absolute certainty how any individual will behave in the future. The Commissioner is properly concerned that Mr Hill's serious lack of judgment and failure to properly supervise his firearms may be repeated. As I understand Mr Tunks to argue, notwithstanding the applicant's good character given the seriousness of the incident the public interest dictates that a decision maker err on the side of caution and, in effect, guarantee, by the revocation of the licence, that a similar incident will not be repeated. 10In the final sentence, the Tribunal was reciting Mr Tunks' submission, with approval. The Tribunal was not re-writing the public interest test. Words such as "dictates" and "guarantee" suggest that revocation is mandatory in such cases. That is not correct. When applying the fit and proper person test, the public interest test and the reasonable cause test, the decision maker is exercising a judgement based on all the evidence.
Evidence 11Apart from the question of whether AML had previously threatened suicide, the material facts are not in dispute. I will deal firstly with the evidence of a previous threatened suicide and then with three of the Commissioner's submissions as to how particular evidence should be interpreted. 12The Commissioner highlighted a note made by a nurse recording something that AML's wife had told her when AML was in hospital. The note says that, "he has threatened suicide before Christmas and she told him she would get rid of the guns. He said he wouldn't use guns but wouldn't tell her how." AML denies ever previously threatening suicide. The only comment he can recall making to his wife was that she would be better off without him. AML queried whether the nurse had accurately recorded what his wife had said. Neither the nurse nor AML's wife gave evidence. 13In view of the second hand nature of the nurse's record and the denial of any such threat, I am not satisfied that AML expressly threatened suicide before Christmas in 2011. It follows that I do not accept the Commissioner's submission that the opinion of the psychologist and the psychiatrist that AML was making good progress during that period, should be qualified. 14The first of the three submissions the Commissioner made as to the significance of particular evidence was that AML had been "on and off medication" previously and that that was a risk factor. AML clarified that he had been on an anti-depressant, Zoloft, for 10 years and at various times he decreased his dosage in an attempt to determine whether he could function without it. He found that he could not. He is now on Efexor and, under Dr Kealy Bateman's supervision, he has increased the dose. He has only ever taken two kinds of anti-depressant medication. AML is compliant with Dr Kealy Bateman's prescriptions and accepts that he will be on medication for the foreseeable future. In those circumstances I place no significance on the fact that he has tried to come off medication more than once before. 15Secondly, the Commissioner said that AML had missed an appointment with his psychiatrist. AML explained that he had not received the message about that appointment and that, in general, he has regularly and reliably attended medical appointments. I accept that evidence. 16Thirdly, I reject the Commissioner's submission that any adverse inference can be drawn from AML saying to a nurse at the hospital that, "I failed in that too." (i.e. suicide) I accept that this was just a flippant remark to hide his embarrassment. 17AML has been a patient of Dr Kealy Bateman since October 2011 and has seen him six times altogether. He has diagnosed AML as having a Major Depressive Disorder with a Major Depressive Episode in remission. Dr Kealy Bateman prescribed anti-depressant medication and has since increased the dose. In two reports written in the last four months, Dr Kealy Bateman expressed the opinion that "there is no current risk" that AML's condition or impairment may impact on his ability to exercise continuous or responsible control over firearms. He bases that opinion on several factors including that AML: (1)has never used firearms irresponsibly; (2)is an attentive patient who has followed his advice; and (3)has significantly improved since leaving hospital and now has a better understanding of his role change since being made redundant. 18Mr Tyrer, a psychologist, has been seeing AML regularly since September 2011. He provided three reports dated 8 May 2012, 26 July 2012 and 3 December 2012. In the May report, Mr Tyrer said that the attempted suicide was a "one off" and there was no pattern of self destructive behaviour. In his opinion, AML would continue to use firearms responsibly. That opinion was based on several factors including that AML: (1)has no previous history of attempting self harm; (2)has not had any issues in relation to the use of firearms in the past; (3)is managing normal stressors in an appropriate, healthy manner; and (4)is making rational decisions regarding relationships, work responsibilities and general health. 19In the July report Mr Tyrer expressed the view that AML's firearms licence should be restored because he has been a regular and dedicated participant in his recovery treatment and there has never been any suggestion that he would use firearms to self-harm. 20AML's wife, a registered nurse, also unreservedly supports the reinstatement of her husband's licence.
Consideration 21When applying the reasonable cause test, the decision maker must ask whether the applicant's previous attempt gives rise to a reasonable cause to believe that he or she may not personally exercise continuous and responsible control over firearms. The test, in context, is an objective one: State of New South Wales v Taylor [2001] HCA 15 at [10], Gleeson CJ, McHugh and Hayne JJ. 22Not every suicide attempt will justify the revocation of the person's firearms licence. The Tribunal must assess the likelihood that AML will attempt suicide or self-harm again and, if that happens, the likelihood that a firearm will be used. There is no suggestion that AML would attempt to harm others. The reason AML has a firearm's licence or the enjoyment he gets from possessing or using firearms is irrelevant. 23I accept the opinion of both the psychologist and the psychiatrist that AML is highly unlikely to attempt suicide again. That opinion is based on several matters including the significant improvement in AML's mental health immediately following the suicide attempt and the continuing improvement in the 8 months since that time. I do not accept the Commissioner's submission that before the reasonable cause test or the public interest test can be satisfied, an applicant must complete a course of treatment and enjoy a lengthy period of stability following that treatment. While both effective treatment and a lengthy period of stability are relevant, they are not mandatory. 24I 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 to suicide previously. 25The Commissioner has not pointed to any additional matters that would justify the licence being revoked in the public interest and I am not independently aware of any such matters.
The Commissioner's decision to revoke the applicant's firearms licence is set aside.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 January 2013
AML
Commissioner of Police, NSW Police Force
The Commissioner's decision to revoke the applicant's firearms licence is set aside.