Clay v Commissioner of Police, NSW Police Force [2018] NSWCATAD 49 | Case summary

NCAT Administrative and Equal Opportunity|2018-02-07

The Applicant's evidence

The Applicant's evidence was largely uncontested. He gave evidence that in 2012, he was in a relationship with a woman who had become physically violent towards him. He had discussed his concerns with friends; some suggested he leave her, but others (who had advocated the relationship from the outset) either disbelieved him or thought he was over-reacting. He was becoming increasingly concerned that he might physically retaliate. In the early hours of 8 December 2012 he felt he needed urgent assistance. He could not get to a hospital because he did not have a car and, at that time of night, there was no public transport. He walked to Raymond Terrace Police Station, seeking help. He said he told police that he had been having thoughts of harming his partner. Whereas the police record of his attendance noted that he was 'hearing voices telling him to do so', he said he told police that in order for them to take his concerns seriously. He had not in fact 'heard voices', only that it was 'not like [him] to [consider] violence'.
The Applicant said that, as there was neither an ambulance nor patrol car available, he was transported by paddy wagon to the Mater Hospital. On arrival he was given 'a pill', and that was the only medication he received. He remained there for a about a week during which time he saw a psychiatrist or a psychologist 2 or 3 times for about 5 or 10 minutes. After a day or two he was allowed to leave for short periods, and then he was discharged after about a week. In cross-examination he said that he did not know what the expression 'scheduled' meant. He did not accept that he had been detained by the police, because he had asked them to take him to the hospital.
He was diagnosed with BPD and between June 2013 and February 2015, undertook a Dialectical Behaviour Therapy (DBT) program which entailed twice weekly individual counselling with a psychologist and a group session. He said he was enthusiastic about the course because he did not like the stigma of the diagnosis. Following the course he was prescribed no medication and there was no planned review.

Current psychological condition

In late 2015 or early 2016 the Applicant sought advice from his General Practitioner because he was experiencing work stress. Initially he was prescribed some anti-depressants but, after a couple of weeks, with no effect, they discussed that the best course was to leave the job. The stress was identified as 'situational'.
He worked for a time as a gardener and, after obtaining his heavy vehicle licence, has been a truck driver for over a year, doing day trips around the local area.
He said he has been with his current partner for about 3 years and he has 3 children. Since 2012 he has not come to police attention.

Psychologist's report

Following his application for a firearms licence, the Applicant was asked by the Respondent to provide an assessment from a psychiatrist or psychologist to determine his suitability to hold a firearms licence.
Jon Grainger, Clinical Psychologist, provided a report dated 28 March 2017. The Respondent had requested that Mr Grainger be available for cross-examination, but the Applicant was unable to make arrangements as Mr Grainger's rooms did not return his calls. The Respondent accepted the Applicant's explanation and agreed to proceed with the hearing nonetheless.
Mr Grainger wrote that he had met with Mr Clay on 28 March 2017. As well as interviewing the Applicant, he administered two tests: the Depression Anxiety and Stress Scale and the Personality Assessment Inventory, which measure current mood experience and personality factors respectively.
He wrote that Mr Clay had told him that he had been diagnosed with BPD in early 2013. Mr Grainger referred to a personality disorder as being defined in the 5th Edition of the Diagnostic and Statistical Manual of Mental Disorders as "an enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual's culture" and affects two or more of the following areas: cognition; affectivity; interpersonal functioning; and/or impulse control. BPD is characterised as a "pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked Impulsivity".
Mr Clay told Mr Grainger that, when he reported to the police in December 2012 he had not been experiencing auditory hallucinations, and that he reported this to police as he thought he would be immediately referred for help. Mr Grainger considered the Applicant's logic (in manipulating information to achieve an outcome that may have been difficult to achieve via direct communication) to be consistent with Personality Disorder. Mr Clay told him that he had been subject to abuse in his relationship and this was why was having thoughts of harming his partner and also why he was desperate to find a way out.
He noted that Mr Clay had told him that he was successfully treated via a 12-month course of Dialectical Behaviour Therapy (DBT) which, is amongst the best treatment of BPD. He also did not consider anti-depressant medication to be an essential part of ongoing treatment or maintenance of DBT.
Mr Grainger speculated that the Applicant may have been impaired in his ability to exercise the desired control and responsibility over firearms in the past and that there is a reasonable chance that he would have been impaired in this way prior to his diagnosis and treatment.
On the Applicant's presentation and through responses to the testing, Mr Grainger considered Mr Clay showed no evidence of current psychological or psychiatric condition of any kind. Mr Grainger noted Mr Clay reported a stable relationship with his partner and children since his treatment and that he had also maintained gainful employment. Mr Grainger considered both would be difficult to achieve while meeting criteria for BPD.
Mr Grainger considered that, in general, a person with BPD could have the potential to be unsafe with firearms because the disorder can include: impulsivity; suicidal or self-mutilating behaviour; intense anger; and paranoid ideation or severe dissociative symptoms. examination of his scores suggested that he had answered in an honest and reliable manner, and had no elevated potential for violence, aggression, or suicidal behaviours. However he stressed that he could find no evidence of these symptoms. In general, he found Mr Clay to be polite and open and found his description of the event and subsequent treatment to be genuine and convincing.
Mr Grainger observed that Mr Clay has maintained interpersonal relationships since his treatment and described appropriate emotional awareness and regulation. The testing suggested an absence of symptoms specifically related to BPD (or any other disorder).
Mr Grainger was convinced that Mr Clay has genuinely recovered from his acute episode in 2012 and has benign motivation for acquiring his firearms licence. However, he could not rule out the possibility of a relapse in the future.
Mr Grainger considered there is potential risk to the public with any individual possessing or using firearm. In as much as it is possible to predict risk, and based on the available evidence, Mr Clay would currently pose no greater risk than any other citizen should he possess and use a firearm.
In summary, Mr Grainger could see no evidence that Mr Clay would currently present a greater risk to the public than any other person with regards to possession or use of firearms. However, observed that BPD in is "pervasive and enduring by nature". He considered the Applicant to have been successfully treated, and observed that he has demonstrated a three year period without significant impairment. Nonetheless, Mr Grainger could not rule out the possibility of relapse. He recommended that Mr Clay be granted a licence, but suggested a possible condition of 6 or 12 monthly psychological review for the next five years.

Consideration

Section 22 the Mental Health Act 2007 provides, relevantly, to the effect that if a person appears to police to be mentally disturbed and police believe on reasonable grounds that it is probable that the person will attempt to cause serious physical harm to another person, they may apprehend the person and take them to a mental health facility. The section also includes such action being taken by police in the event of much more serious conduct.
There was no evidence from the police report that the Applicant had conducted himself in a manner inconsistent with his evidence, namely that he had attended in order to ask for help and to be transported to a mental health facility. I accept that while he articulated his concerns that he might resort to violence, there was no evidence of any violence on his part. I accept the Applicant's evidence that he did not 'hear voices' and accept, from Mr Grainger's evidence that the Applicant's logic in saying that, was consistent with his condition.

Not in the public interest: Section 11(7) of the Act

The principal issue in determining public safety is whether or not there is a risk to the safety of the public if the Applicant is granted a firearms licence.
The report prepared by Mr Grainger noted that the Applicant does not currently suffer from any mental health illnesses. He was convinced that Mr Clay has genuinely recovered from the acute episode in 2012. Mr Grainger considered that the Applicant had been successfully treated, and that he has demonstrated a three year period without significant impairment.
Mr Grainger could find no evidence of elevated potential for violence, aggression, or suicidal behaviours. While, in general, a person with BPD could have the potential to be unsafe with firearms because the disorder can include impulsivity, suicidal or self-mutilating behaviour, intense anger, and paranoid ideation or severe dissociative symptoms, he found, in the Applicant, an absence of symptoms specifically related to BPD, or for that matter, any other disorder.
Nonetheless, Mr Grainger could not rule out the possibility of relapse as BPD is "pervasive and enduring by nature". Mr Grainger gave no indication of what might precipitate a relapse, and appears to have come to his view based solely on the nature of the condition, notwithstanding the Applicant had apparently been symptom-free for several years.
In Moroney v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 138 (Moroney), to which both parties referred, at [50], the Tribunal stated: 50 The crux of this case is the medical, psychiatric and psychological evidence, for it was in a health care setting that the public interest concerns arose; they did not result from his outward behaviour. While the evidence shows a definite improvement, it is subject to qualifications about the need for regular reviews, reassessment of his medications and neuropsychiatric testing. Above all, it attests to a not insignificant risk of relapse. (Tribunal's emphasis)
The Respondent relied on Mr Grainger's suggestion of periodic reviews as evidencing a "not insignificant" risk of relapse. It submitted that there is too much uncertainty regarding the Applicant's mental health for the Tribunal to be satisfied that there is "virtually no risk to public safety".
Moroney was different to this matter in a number of respects. The applicant in that matter had experienced brain trauma and had demonstrated behavioural problems including anger brought on by simple triggers. The evidence suggested he needed to be compliant with medication ('several psychotropic medications') to reduce the chance of relapse. At the time of hearing he was still in the care of a psychiatrist and a psychologist, and that in just over a year before the hearing there was medical evidence by his treating professionals of a risk of relapse; it was only the very recent medical reports that were less negative. Here, on examination, the Applicant was found to not be suffering from any mental illness and had recovered from the single acute episode in 2012. He was successfully treated, required no ongoing treatment or medication and has had three years of relative stability. There was no evidence whatever of violence or aggression.
Mr Grainger's observations, in my view, need to be put into context: he considered there to be a potential risk to the public with any individual possessing or using firearm. Importantly, in my view, he considered Mr Clay to currently pose no greater risk than any other citizen with respect to firearms.
In all the circumstances, I am comfortably satisfied that there is no reason, based on public interest grounds, to refuse the Applicant's application for a firearms licence.

Should the licence be conditional upon regular reviews?

Mr Grainger recommended that the Applicant be granted a firearms licence but suggested a possible condition that he be subject to 6 or 12 monthly psychological review.
The Respondent pointed out that it would have no way of knowing if the Applicant was complying with such a condition, unless the Applicant or psychologist was obliged to report to the Firearms Registry. I do not consider Mr Grainger's proposal to be workable.
In the Respondent's submission, prior to being granted a licence, the Applicant should attend as many psychological consultations as are required in order for a psychologist to form an unqualified opinion that there is virtually no risk to public safety. I do not consider such a course to be workable either. In view of Mr Grainger's observations about the pervasive and enduring nature of BPD, it may be that a completely unqualified opinion that there was "virtually no risk" might never be forthcoming in respect of Mr Clay, or for that matter, for anyone who at some time had a diagnosis of BPD. Furthermore, the Applicant has had to make a considerable outlay to obtain Mr Grainger's report, and it is likely subsequent reports would be similarly expensive. It is unknown if this could be publicly funded, but this is unlikely, and in any event, an unnecessary diversion of mental health resources. While I agree with the Respondent's submission that there could be extended periods where the Applicant has unfettered access to firearms while his mental health status is unknown, this also applies to any holder of a firearms licence.
The licence should be granted, without condition.

Decision 1. The decision under review is set aside. 2. In substitution for that decision, the following decision is made: the applicant is granted a Category AB firearms licence.

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: 01 March 2018

Legislation and relevant authorities

The case turns solely on s 11(7) of the Firearms Act 1996 (NSW) (the Act), which provides that the Commissioner (or the Tribunal on review) may refuse to issue a licence if it is considered that the issue of the licence would be contrary to the public interest.
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, the Appeal Panel said, albeit in the context of the licensing regime for the security industry, that the 'public interest' is an inherently broad concept giving the Commissioner, and the Tribunal on review, the ability to have regard to a wide range of factors in choosing whether to exercise discretion adversely to an individual: at [25].
The 'public interest' allows a consideration of issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
In Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 Deputy President Hennessy made comments relevant to a consideration of whether the issue of the licence may be contrary to the public interest. The Deputy President, although dealing with the "fit and proper person" requirement elsewhere in the Act, focused on the importance of protecting public safety. At [28] she said 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 not pose any risk to public safety.
The underlying principles of the Act stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23].
In AML v Commissioner of Police NSW Police Force [2013] NSWADT 5, at [23], the Tribunal held that while both effective treatment and a lengthy period of stability are relevant, they are not mandatory.

Clay v Commissioner of Police, NSW Police Force

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