Ashton v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2022-06-01

REASONS FOR DECISION

This case is about a decision made by the Commissioner of Police on 17 September 2020 to revoke Mr Ashton's firearms licence.
The Commissioner of Police revoked Mr Ashton's firearms licence because the Commissioner decided that Mr Ashton was not a fit and proper person to hold such a licence and that Mr Ashton did not have a genuine reason to possess for possessing or using the firearms.
This Tribunal reviewed the decision and decided, on the basis of the evidence, that the correct and preferable decision was to set aside the revocation decision.

The Commissioner's decision to revoke the licence

The revocation letter from the Commissioner of Police ('Commissioner'), dated 17 September 2020, stated: "Due to your current physical condition and disregard for firearms legislation, it is my opinion you are not a fit and proper person to possess a firearms licence. It is also my opinion that you have no genuine reason to possess a firearms licence."
The Commissioner sent a Statement of Reasons, dated 16 July 2021, to Mr Ashton providing further reasons for the revocation decision. This included references to the NSW Police Force Computerised Operational Policing System ('COPS') Event record of when Police attended to conduct a safe storage inspection on 15 November 2019. Police noted that Mr Ashton used a wheelchair and had muscular dystrophy. Police described Mr Ashton as "argumentative and belligerent" and described some difficulties Mr Ashton had in opening his firearm safe and reaching the receptable holding the ammunition.

Applications to NCAT for a stay and an administrative review of the decision

On 9 February 2022 Mr Ashton filed a stay application seeking orders that the seized firearms not be disposed of by the Respondent until six weeks after the conclusion of these proceedings. On 22 February 2022 the Tribunal, differently constituted, made an order by consent to that effect.
On 9 February 2022 Mr Ashton also lodged an application for review of the decision to revoke is firearms licence.

Relevant legislation

The relevant legislation is the Firearms Act 1996. The underlying principles are stated in section 3(1) to include: "(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, and (c) to facilitate a national approach to the control of firearms."
Subsection 11(3)(a) of the Firearms Act 1996 states that a licence must not be issued unless 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."
A licence must also not be issued unless the Commissioner is satisfied that the applicant is capable of meeting the storage and safety requirements set out in Part 4 of the Firearms Act 1996.
Subsection 11(4) also specifies that a licence must not be issued if: "…the Commissioner has reasonable cause to believe that the applicant "may not personally exercise continuous and responsible control over firearms because of - (a) the applicant's way of living or domestic circumstances, or (b) any previous attempt by the applicant to commit suicide or cause self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind."
A licence must also not be issued if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information, that the person is "a risk to public safety" and issuing a firearms license would be "contrary to the public interest".
A person must have a genuine reason for possessing or using firearms. The Commissioner must not issue the license where there is no genuine reason: subsection 12(1) of the Firearms Act 1996. The genuine reasons for possessing or using firearms are set out in the Table to section 12. These reasons include for recreational hunting and vermin control and also for firearms collection. A number of requirements must be met in order to demonstrate each reason.

Administrative review jurisdiction

The Tribunal's jurisdiction to review a decision of the Commissioner of Police to revoke a firearms license is derived from subsection 75(1)(c) of the Firearms Act 1996. That jurisdiction is exercised under the Administrative Decisions Review Act 1997.
When conducting an administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, meaning legislation and common law: refer to section 63 of the Administrative Decisions Review Act 1997. The Tribunal is not confined to only considering the material that was before the Commissioner at the time the decision under review was made. The Tribunal can also have regard to any relevant material before it at the time of the review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

Was the application for review lodged within time?

The internal review decision was made on 30 December 2021. Mr Ashton gives 11 January 2022 as the date on which he was notified of the decision, after receiving notice in the post. Mr Ashton completed an application for review form on 2 February 2022 and it was received in the Tribunal Registry on 9 February 2022.
Ms Lloyd, for the Respondent did not take issue with the date Mr Ashton said he was notified of the decision, stating the Respondent content to proceed on the basis that 11 January 2022 was the correct date. She advised she had no objection to make about the application being made out of time.
Applications for review must be lodged within 28 days after the internal review is finalised (subsection 24(4) of the Civil and Administrative Tribunal Rules 2014). In this case, that means 28 days after Mr Ashton was notified of the outcome of the internal review, that is, by 8 February 2022 (refer to subsection 53(9)(a) of the Administrative Decisions Review Act 1997). The application was therefore lodged on day 29, one day late. Neither party nor the Tribunal picked up at hearing that the application was in fact made one day out of time and the Respondent had no objection to the review proceeding, knowing the relevant dates. It appears from a document entitled 'Timeline of Some Events' filed by Mr Ashton with his application that his records suggest he sent the application for review form into the Tribunal by registered mail on 4 February 2022.
Given the small delay in receiving the application and in circumstances where the Respondent was content for the hearing to proceed, knowing the dates on which Mr Ashton received the internal review decision and on which the application for review was lodged, I have decided to exercise my discretion under section 41 of the Civil and Administrative Tribunal Act 2013 to extend the time for lodgement of the application.

The oral evidence and submissions of Mr Ashton

Mr Ashton gave evidence about the firearms inspection conducted by Police at his residence on 15 November 2019. He said it was "a shock" when Police arrived and said he found Police a "bit overbearing in my view". He said he became "fed up a bit" when police began to tell him about what the legal requirements were, describing it as "some bullshit". Later in his evidence he said he thought the police officer was "trying to get a rise" out of him and he did not know what the officer was talking about.
Mr Ashton agreed that Police seized 40 firearms at the 15 November 2019 inspection after Police determined that one of two firearms safes was not compliant with the legislation.
Mr Ashton said the firearms in the safe were Category A and B registered firearms. He described the location of this safe as being in a breezeway between the main bedroom and a granny flat. He said that the safe was visible from the backyard of his neighbours' place. The other safe was described by Mr Ashton as situated in his garage.
Mr Ashton described the safe in the breezeway as a large bank safe with two keys and two dials. It had combination locks that required accurate manipulation to succeed in unlocking it. He said that there is no click or friction in the dial and a person would not know if they had not accurately landed on the relevant position until the entire sequence was completed. He explained that he had called Police in advance to explain that this safe was difficult to open. Indeed, he said that it took Police some 46 minutes to open it during the inspection.
Mr Ashton told the Tribunal that he had his first firearm at 12 years old and that he is now 72 years of age. He said that he enjoyed firearms and that he was interested in their mechanisms. He said that some of his firearms were hunting ones, and some were collectibles.
Mr Ashton told the Tribunal that he has been diagnosed with muscular dystrophy. He was also born with club feet and had ankles that "wore out". He said he walks on the balls of his feet and also that there is limited flexibility in his ankles. He said that he also experiences weakness and a lack of strength.
When asked about how this physical disability might impact on his use of a firearm, Mr Ashton said that he can shoot out of a stationary vehicle out the window. He said his arm strength was such that he would only be able to hold a gun for five minutes or less. He needed to rest it on something. He said he had tripods that were adjustable in height. He said that his physical disabilities have stayed the same over the years.
The Tribunal asked Mr Ashton what would happen if he was hunting and dropped his rifle. He said that would depend if he was seated in his wheelchair, a car or on a log. He said he can bend from his wheelchair. If he was in his car, he would open his door and lean out. If out of reach, he would shift the car and then bend out to pick the rifle up or get in his wheelchair in order to retrieve it.
When asked whether any pick-up devices such as a device used to grab things from a distance could be used to retrieve a dropped gun, Mr Ashton gave a clear and immediate response, stating that that this would not be a good idea as it would risk discharging the gun.
The Tribunal asked Mr Ashton if he had ever dropped a gun. He said there was once occasion about 40 years ago when he was walking beside a creek and the bank gave way and he went down, and the gun went off. He said he had not dropped a gun since he had become a wheelchair user.
On questioning about being diagnosed with chronic depression, Ms Ashton said he believed the diagnosis occurred before he retired, in the "late 1990s or 2000s". Mr Ashton agreed that he was prescribed medication for depression at that time and that he had never stopped taking it. He said that he did not recall discussing it with his GP. He said he was on "quite a few" pills and his new doctor had indicated he would take him off those pills. When asked whether he experienced low mood, Mr Ashton said rarely. He also denied thoughts of self-harm.
This oral evidence is supported by Mr Ashton's written evidence, where he stated that he experienced "stress and pain of maintaining performance at work in the fact of mounting physical disability (injured back, worn out ankle, and weakness later diagnosed as muscular dystrophy)" and that he retired from work on health grounds in 2004 (refer to page 8 of Mr Ashton's "slightly modified Summary of Legal Arguments", filed on 12 April 2022).
Ms Lloyd took Mr Ashton to a series of 'NSW Fitness to Drive Medical Assessment' forms filed by the Respondent. Mr Ashton agreed he had signed the forms. The 'NSW Fitness to Drive Medical Assessment' forms signed by doctors in 2017 and 2020 identified Mr Ashton as having muscular dystrophy and chronic depression. The 'NSW Fitness to Drive Medical Assessment' in 2021 appears to be an electronic form rather than a paper one and on that form the doctor identified Mr Ashton as having a neuromuscular condition and chronic depression. Mr Ashton said that the doctor who completed the 2021 form did not know him and gave him a 15-minute appointment and had no access to his medical records as they were held at another practice.
Ms Lloyd referred Mr Ashton to pages 138 to 141 of the annexures to the affidavit of Claire Dunn, filed by the Respondent, which is an firearms licence application completed by Mr Ashton on 13 February 2007. Mr Ashton crossed "No" in the answer at H.(d) to the question about whether he had been "referred or treated, within the last 12 months, for alcoholism, drug dependence, or mental or nervous disorder?" Mr Ashton explained that he did not consider he had a mental illness. He said that at the time he was first prescribed the medication he was in a lot of pain and struggling at work, particularly with the physical demands of this job. That made him depressed, but he restated that he did not see that as a mental illness.
Ms Lloyd also took Mr Ashton to a 'Re-Application for a Personal Firearms Licence' form filled in by him on 18 April 2012, at pages 150 to 151 of the annexures to the affidavit of Claire Dunn. At the question at F. d) "Have you ever attempted suicide or self harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?" was answered with "no". Mr Ashton told the Tribunal that he would still mark his answer as "no" today. He said he did not have a mental illness. Ms Lloyd put to him that he was either being untruthful, unreasonable, or showed reckless indifference to the truth. Mr Ashton disagreed. He restated that the depression was before he retired from work when he was in pain and struggling to maintain his responsibilities.
Ms Lloyd pressed Mr Ashton about the lack of medical evidence about his conditions. Mr Ashton agreed that he had not obtained a medical opinion as evidence about these matters. He said his doctor had retired.
The Tribunal asked Mr Ashton when he had last been hunting and he said a "couple of years" ago. He said he went to visit his son in Queensland and there were a few rabbits at his place. He said he had been "out of action" for the last year and a half due to requiring medical treatment for an abscess including hospitalisation.
The Respondent argued in written submissions that Mr Ashton could not reach his ammunition safe when seated in his wheelchair. Tribunal asked Mr Ashton further about his physical disability. Mr Ashton said that he was able to get out of his wheelchair if he had something "solid" to grab onto, such as hand or grab rails. He said that in the garage he had previously been able to hold onto the leg posts of his work bench. He could also use his wheelchair as a "walker" to walk when out of the wheelchair.
The Tribunal asked Mr Ashton whether he could install grab rails. He said that would be possible and he could do that.
Mr Ashton submitted that there was no evidence that he had a lack of respect for the firearms legislation. He said he "know[s] why it is there".

Other material relied on by the parties

The Respondent relied on the NSW Police Force Computerised Operational Policing System (COPS) Event record of the inspection conducted on 15 November 2019. That document records that when questioned by the Police conducting the inspection about his genuine reasons for having a firearms licence, Mr Ashton said he had no letter from a landholder but would obtain one if he chose to go hunting. He is recorded as then saying he had permission to shoot on private land.
When Police advised Mr Ashton that holding a firearms licence was a privilege not a right, Mr Ashton is recorded in the Event record as responding that he thought the Firearms Act was "the biggest load of horse shit I ever bloody saw."
Police did not pass the storage of the firearms at the inspection because the safe in the breezeway was accessible to the outdoors in contravention of the requirements for firearms stored under a collectors licence.
Clause 36 of the Firearms Regulation 2017 does require that the area or room in which firearms stored in a firearms collection must be part of a permanent building with secure locks on all entrances and the clause further specifies other requirements about the required security such as having solid walls and other matters.
Police formed the view that Mr Ashton was "argumentative" when he responded to the suggestion that the safe was accessible by suggesting that it is very difficult to open.
Police proceeded to seize the firearms and there were 40, but only 38 were listed on the Integrated Licensing System (ILS). Police attended to speak to Mr Ashton on 21 November 2019 about the other two firearms. Mr Ashton is recorded in the COPS record as stating his view that Police were requiring more than what was required by law in respect of the safe in the breezeway. Police describe him in the record as "argumentative". Police formed the view on that occasion that Mr Ashton would not comply by moving the safe in the breezeway indoors or by purchasing an extra receptable to put in his garage. Police also took the view that it would be unlikely that Mr Ashton would be able to produce the necessary paperwork in relation to the two firearms. What transpired after that was that Mr Ashton located two permits to acquire and it was the case that the paperwork had not been forwarded to the NSW Firearms Registry by a third party.
Police later attended Mr Ashton's property on 5 February 2020 and observed that the safe from the breezeway had been relocated into Mr Ashton's garage and that the safe storage requirements had been met.
The Respondent also relied on the NSW Fitness to Drive Medical Assessment forms, dated 26 September 2017, 19 October 2020 and 29 October 2021, which were completed by medical practitioners and identified that Mr Ashton had muscular dystrophy and chronic depression. The box about whether medication is required for the condition is not ticked on the 2017 and 2020 form. On the 2021 form the doctor indicates that Mr Ashton does require medication and that he is compliant with taking the medication.
Notably, the 19 October 2021 form asks whether the mental health condition is of such severity as to require review by a psychiatrist and the answer given by the doctor is "no". The doctor completing that form had only started treating Mr Ashton in "October 2021".
Mr Ashton explained in his "slightly modified" Summary of Legal Arguments, provided to the Tribunal under cover of a letter dated 31 March 2022 (refer to page 8) that his regular GP of about 30 years had retired. He also states that his depression has been successfully treated and at his last visit the GP said "we should get you off those anti-depressants".
The Respondent also relied on the written statement of Senior Constable Mark Schmidt, dated 4 May 2022 (Schmidt Statement). In that statement, Senior Constable Schmidt transcribes excerpts from the Police body worn video. It is evident from those excerpts that Mr Ashton was cautious about being entrapped or set up by Police, for example if he handed Senior Constable Schmidt the key to one of the safes in order to open it. Senior Constable Schmidt told Mr Ashton that would not breach the firearms law but Mr Ashton was suspicious of that. At one point in the exchange Mr Ashton is recorded in the statement as saying to Police: "I don't want to get you guys off side but I am sick of being treated like a bloody criminal." Mr Ashton made a similar comment to Senior Constable Schmidt on 21 November 2022, saying he did not "want someone walking in the front door and moralizing me about it's a, it's a bloody privilege blah, blah, blah" (at page 11 of the Schmidt Statement).
Mr Ashton in the "slightly modified" Summary of Legal Arguments, referred to above (at page 10) refers to his reaction when asked by Police on 15 November 2019 about whether he had a genuine reason for having a firearms licence that "My already annoyed demeanour due to the officious nature, threatening and intransigent attitude, "over the top" police apparel, video recording and the obvious different agenda to that proclaimed for the meeting, was heightened."
Mr Ashton filed an unsigned statement from his wife, Robyn Ashton, as an attachment to his "slightly modified" Summary of Legal Arguments, provided to the Tribunal under cover of a letter dated 31 March 2022 (refer to Annexure C at pages 20 to 21). In that statement Mrs Ashton states "I found the Officer's attitude demeaning and condescending as if no one knew anything except him and it should be done his way and only his way or else. The situation was handled very poorly, and my husband overreacted."
It is apparent from the body worn footage filed by the Respondent on usb, that one of the first things Senior Constable Schmidt discussed with Mr Ashton is whether he had a letter from a rural property owner to shoot on their land. Senior Constable Schmidt's insistence that Mr Ashton has such a letter in order to have a genuine reason for recreational hunting or vermin control is in fact incorrect. Mr Ashton refers to attending meetings in his response to Senior Constable Schmidt. The Table in section 12 of the Firearms Act 1996 provides a number of other bases on which a person can demonstrate a genuine reason of recreational hunting or vermin control. One such basis is at paragraph (c), that the applicant is "a current member of a hunting club… ". The Senior Constable then proceeds to explain, as it stated in section 3 of the Firearms Act 1996, that firearm possession and use is a privilege "not a right".
Mr Ashton also queried Senior Constable Schmidt's account of the requirement that the safe in the breezeway needed to be housed inside a room, possibly on the basis of his own reading of the law because, on his account, he had only Category A and B firearms in that safe (refer to refer to the letter dated 22 May 2022 with the heading 'Submission by Greg Ashton', at page 6) but also because prior inspections had occurred where this storage arrangement was passed by Police (refer to page 8 of the Schmidt Statement and also Mr Ashton's "slightly modified" Summary of Legal Arguments, provided to the Tribunal under cover of a letter dated 31 March 2022 at page 5 and 6). Mr Ashton stated that there were two or three inspections where those storage arrangements were passed (refer to the letter dated 22 May 2022 with the heading 'Submission by Greg Ashton', at page 2.)
Mr Ashton, by letter dated 10 April 2022, filed in these proceedings explained that at the time the reason there was no registration of firearms as "collector" firearms was that the 'Application for a Permit to Acquire' form had no box to tick for that category at the time for that category and he supplied a copy of such a form. He states this has since changed.
Senior Constable Schmidt acknowledged in his statement that there might be a shortcoming of the Integrated Licensing System in that the firearms were not identified by license category (refer to page 6 of the Schmidt Statement).
Mr Ashton also relied on two character references from Mr Ken Fleming, who has known Mr Ashton for 40 years and Mr Hilton Solyom who has known Mr Ashton since 1972. Mr Solyom makes the point in his letter, dated 25 March 2022 that he has never known Mr Aston to be "at odds with any law or problems with enforcers of the law."

Respondent's submissions

The issues that arose from the inspection about the location of the safe and the two additional firearms was resolved to the satisfaction of Police. Ms Lloyd, for the Respondent, suggested that the relevance of the first inspection on 15 November 2019 was the manner in which Mr Ashton interacted with Police. She said that there was also an issue about control over the ammunition.
The issue concerning the storage of the ammunition arose because at the inspection on 15 November 2022 Mr Ashton is recorded as advising Police when the safe in his garage was opened that he could not reach the locking mechanism to open the compartment holding the ammunition when in his wheelchair.
Ms Lloyd stated that it was not the position of the Commissioner that persons with disabilities can never be granted a firearms licence and referred to the example of Paralympian shooters. Rather, she said that the Commissioner has not reached a state of satisfaction about the safe storage and handling of the firearms and the manner in which Mr Ashton will conduct himself. She said there was an absence of evidence about Mr Ashton's health issues such that the Commissioner cannot be satisfied that there is "virtually no risk" to public safety if Mr Ashton were to retain his firearms licence. She submitted that Mr Ashton should provide a medical opinion about the severity of his conditions, the symptoms and whether the conditions might worsen in the future.
Ms Lloyd submitted that the Tribunal had to reach a positive finding or reach a level of satisfaction that there was "virtually no risk" if Mr Ashton was to retain a firearms licence. She argued that risk arose from Mr Ashton's physical difficulty in using firearms and if he mishandled or lost possession of a firearm he would not be able to maintain control over the firearm if there were a third party nearby.
Ms Lloyd submitted that the Tribunal should not give any significant weight to Mr Ashton's evidence about his physical functioning as he has an interest in having his licence reinstated and is more inclined to give a favourable picture. She submitted that the Tribunal should prefer the independent evidence of the medical practitioner on the driving assessment forms.

Further submissions following the hearing

The Tribunal asked the Respondent to obtain instructions about whether by imposing conditions on any licence might address any risk. Conditions could include requiring Mr Ashton to install of grab rails near the firearms safes and to clear the area around the safes to provide a clear passage to the safe. Instructions were not able to be sought by the Respondent's representative during the hearing and the Tribunal adjourned the proceedings in order to provide the parties with an opportunity to file written submissions on the power of the Tribunal to set aside the decision under review and to make a new decision in substitution to grant the licence but with conditions.
The Respondent filed further written submissions following the hearing and submitted that Tribunal has power to reinstate a firearms license and impose conditions on it. These powers arise under subsection 63(2) of the Administrative Decisions Review Act 1997 and section 19 of the Firearms Act 1996.
The Respondent submitted that any such conditions would only address the issue of access and storage of the firearms and ammunition and not the issues about the handling and use of the firearms. The Commissioner contended that there was insufficient medical evidence before the Tribunal as to the Applicant's physical conditions and mental health diagnosis and treatment for the Tribunal to be able to assess the risk to public safety. On that basis the Respondent submitted that the Tribunal could not be satisfied there is "virtually no risk" to public safety and that Mr Ashton could maintain responsible and continuous control over firearms.
The Mr Ashton responded by objecting to the Respondent's submissions on the basis that the Respondent should have confined itself to the question as to whether the Tribunal had power to impose conditions, which was the substance of the Tribunal's direction. I have approached these written submissions on the basis that they can be considered in that they merely repeat the arguments at hearing and there is no procedural fairness issue that arise from the Tribunal considering the matters raised in those submissions.

Is Mr Ashton a fit and proper person?

A licence cannot be issued unless 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: subsection 11(3)(a) of the Firearms Act 1996.

Mental health condition and physical disability

Ms Lloyd submitted at hearing that the Tribunal must be satisfied that there is "virtually no risk" to public safety if Mr Ashton were to retain his firearms licence. She argued that Mr Ashton needed to obtain further medical evidence about his conditions and without such evidence the Tribunal could not be satisfied there is "virtually no risk".
The phrase "virtually no risk" is taken from the decision of Deputy President Hennessy in the case Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward), where she stated at [28]: "The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if there were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
In AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5, a decision following Ward, Deputy President Hennessy explained that the comment in Ward was made in the context of a case where she decided that Mr Ward was a fit and proper person to hold a firearms licence despite the fact he has assaulted his partner (at [7]). She explained that the words "virtually no risk" should not be understood as a judicial gloss on the plain meeting of the tests in the Firearms Act 1996 and that the decision maker should exercise a judgement based on all the evidence (at [8] and [10]).
A balanced view of risk should be taken, bearing in mind all the relevant circumstances (Prevetera v Commissioner of Police [2021] NSWCATAD 133). Only real and appreciable risk needs to be taken into account rather than minimal, fanciful or theoretical risk: Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 at [32].
I have considered the evidence about Mr Ashton's physical disabilities. I find that Mr Ashton has muscular dystrophy. I am satisfied that there is no appreciable risk arising from his physical disabilities in his handling or use of firearms. The Respondent's argument at hearing that Mr Ashton might mishandle or lose possession of a firearm he is using and might not exercise control if there is a third party nearby is not borne out by the evidence and in my view is theoretical or fanciful.
The evidence is that Mr Ashton has physical disabilities resulting in a need to use a wheelchair and also significant weakness. However, there is no evidence that this of itself gives rise to any real and appreciable risk to public safety in the handling, use or responsible control of firearms.
The Respondent also submits that Mr Ashton was observed having shaking arms and that he had difficulties opening the large safe in the breezeway and also that when seated in his wheelchair he could not reach his ammunition storage receptacle. As a matter of fact, I find that the large safe that was in the breezeway was difficult for both Mr Ashton and Police to open. Police took 46 minutes to open it. However, this of itself does not lead me to conclude that there is a risk to public safety from the manner in which Mr Ashton operated the safe.
I find that when seated in his wheelchair Mr Ashton cannot access the ammunition storage compartment but could if he was to install grab rails or has something solid to grab onto in order to stand out of his wheelchair. I do not consider there is any risk to public safety which would arise from Mr Ashton needing to grab onto something in order to stand in order to access his ammunition safe.
I am not satisfied on the evidence before me that there is any reasonable cause to believe that Mr Ashton's physical disabilities mean that the storage and security of his firearms will not be safe or that he would not maintain continuous and responsible control over firearms. He may need to do things differently, such as use a motor vehicle and rest his firearm for support when hunting. He may consider installing grab rails or having access to something solid in order to be able to access his ammunition safe storage receptacle. These modifications or adjustments do not give a basis for any finding that there is any real or appreciable risk to the safety of the Mr Ashton or the public.
I considered the 'NSW Fitness to Drive Medical Assessment' forms filed by the Respondent. I find that Mr Ashton has chronic depression on the basis of that evidence and the fact that Mr Ashton continues to take medication for depression. However, what is important to note about those assessments is that each medical practitioner certified that Mr Ashton met the medical criteria for an unconditional driver's licence and in the 2021 form the doctor certified that Mr Ashton met the medical criteria for a conditional driver's licence (with a condition that he must wear glasses or contact lenses when driving). Driving a motor vehicle can, of course, itself pose a risk to the public.
Mr Ashton does not consider himself as having a mental illness and gave evidence that his GP intends to take him off the medication for depression. The Respondent submits that because Mr Ashton did not obtain further medical evidence about his condition, the Tribunal cannot be satisfied there is "virtually no risk" arising from the fact of this mental health condition.
The relevant provision in the Firearms Act 1996 states that a licence must not be issued if there is reasonable cause to believe that an applicant may not exercise continuous and responsible control over firearms because they are of "unsound mind": subsection 11(4)(c). Deputy President Hennessy in the decision of Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 185 at [27] stated that the term "unsound mind: must be interpreted in the context of the principle in section 3(1)(a) of the Firearms Act 1996 that the privilege of possessing and using firearms is conditional on the overriding need to ensure public safety, stating: To be of "unsound mind" a person's mental condition must at least have the potential to put public safety at risk.
In the present case, there is no evidence that Mr Ashton, having a diagnosis of chronic depression, of itself has potential to put public safety, including that of Mr Ashton himself, at risk. I accept that any finding that Mr Ashton is of unsound mind will normally require recent expert evidence, such as a recent psychiatric or psychological evaluation and expert opinion on the question of public safety (refer to Cross v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 26 at [54]). The evidence does not give any basis for such a finding. Merely having a diagnosis of chronic depression does not itself lead to such a finding and I accept Mr Ashton's evidence that he does not experience any symptoms, has continued to take prescribed medication for the condition over a lengthy period without much discussion with his GP and that his new doctor will likely review the medication with a view to a possible cessation.

Incorrect answers on Firearms licence forms

Mr Ashton answered "no" in response to the question about whether he had been treated for a mental disorder within the previous 12 months on his 2007 firearms licence application form and 2012 and 2017 re-application forms.
The Respondent submits that this is false information and by knowingly providing false and misleading information the Applicant should be found by the Tribunal as having a disregard for the firearms laws and that this is another aspect of why he is not a fit and proper person to hold a firearms licence.
I find that the answers on the forms are incorrect. Mr Ashton was receiving treatment for a mental disorder, being medication to treat chronic depression. This is objectively the case, irrespective of whether Mr Ashton experiences any depressive symptoms or considers himself to have any mental illness or to be clinically depressed. He should have answered "yes" on the forms. It is an offence to give false and misleading information on these forms (section 70 of the Firearms Act 1996) and having truthful and accurate disclosure of information is essential to ensuring the objectives of the firearms licensing regime are carried out. However, in the circumstances this incorrect answer does not lead me to a finding that Mr Ashton is not a fit and proper person to hold a firearms licence. The context is that the diagnosis of chronic depression was made some two decades ago, and that treatment has continued since that time without significant review. Mr Ashton's condition is well-managed on the evidence and his new GP intends to review the issue of whether medication should in fact be ceased.

Would Mr Ashton pose a risk to public safety and would issuing of a licence be contrary to the public interest?

Mr Ashton's attitude to Police and the firearms legislation

Mr Ashton submitted, by his letter dated 22 May 2022 (with the heading 'Submission by Greg Ashton' at page 7) that he is a member of an approved hunting club. When the Table in section 12 of the Firearms Act 1996 is read together with clause 32 of the Firearms Regulation 2017, it is clear that the relevant club member who is responsible for the shooting activities conducted by the club can be required by Police to produce a letter as evidence of permission to shoot on rural land.
The footage from the body-worn camera shows Constable pressing Mr Ashton for a letter from a landowner to the giving permission to shoot on his or her land. The law states that if a person is a current member of a hunting club, that is sufficient (refer to the Table in Section 12 of the Firearms Act 1996 and clause 32 of the Firearms Regulation 2017). Where this is the case, it is the club that has permission to shoot on rural land and the member of the club responsible for the shooting activities of the club who must produce that permission if demanded by a police officer.
I find that the manner in which the Senior Constable pressed for something that Mr Ashton was not required by law at the start of the inspection made the interactions tense and heightened. The further dispute about whether one of the safes met the requirements for collector firearms when on Mr Ashton's evidence the collector firearms were kept in the safe in the garage not the breezeway added to the conflict.
I am not persuaded that Mr Ashton has a disregard for the firearms legislation. He was irritated, particularly by Police explaining that having firearms is a privilege not a right, which is in fact essentially what the Firearms Act says in subsection 3(1), but which Mr Ashton found to be moralising and like a religious sermon.
Despite this negative interaction, what in fact occurred was the Mr Ashton complied with the requirement that he move the safe in the breezeway into the garage, which was a considerable task given the size and weight of the safe. He also produced the necessary paperwork to satisfy Police about the two firearms that did not appear on the register.
It is unfortunate and imprudent that Mr Ashton told Police he thought the Firearms Act was "the biggest load of horse shit [he] ever saw", but this comment must be viewed in the context of the interaction that proceeded it.
There is no evidence that Mr Ashton was not willing to comply with the requirements of the legislation and he in fact did so.
On the facts, I am satisfied that Mr Ashton is a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace and that the issue of the firearms licence would not be contrary to the public interest.

Expiry of the licence the subject of the review

The licence that was revoked by the Commissioner expired on 12 July 2022, shortly after the hearing of this application for review. On review of the decision, the Tribunal therefore does not have power, on setting aside the decision, to make a decision in substitution under section 63(3)(c) of the Administrative Decisions Review Act 1997. There is no power to restore the licence and Mr Ashton will need to reapply. As was the reasoning in Johns v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 283, the effect of setting aside the revocation decision should be that Mr Ashton will not be handicapped by a past licence revocation (refer to [128] of Johns).

Operation of the stay

The determination of these proceedings means that the stay order that the Respondent not dispose of the seized firearms will cease six weeks after the date of this decision.

Conclusion and orders

For the reasons set out above, the correct and preferable decision is to set aside the decision under review. The decision of the Commissioner to revoke Mr Ashton's Category ABG firearms licence is set aside. ********** 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 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: 09 January 2023

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

Parties

Cases Cited (4)