Emery v Commissioner of Police

NCAT Administrative and Equal Opportunity|2022-03-07

Background

This is an application by Mr Peter Emery seeking a review of the Internal Review decision by a delegate of the Commissioner of Police (the Commissioner) to revoke Mr Emery's Category AB firearm license in a letter dated 8 July 2021. The Internal Review affirmed the decision by the Commissioner to revoke the licence on 13 May 2021. The application to the Tribunal is made under s 75 of the Firearms Act 2007 (NSW)(the Act). For the reasons that follow, the Tribunal affirms the Commissioner's decision.
On 20 August 2019, Mr Emery was issued with a Category AB firearm for the purpose of primary production of livestock. Mr Emery and his wife live in the main residence on a 180 acre farming property. Mr Emery's son lives on the property in a separate residence about 50 meters away from the main residence. In this decision, I refer to Mr Emery's son as 'S'. Also located on the property are two sheds with steel doors. The sheds are kept locked. Inside each of the sheds there is a safe. One safe contains the firearm and the other safe contains the bolt for the firearm.
On 6 January 2020, S suffered major injuries to his thumb upon placing his right hand on a train line. Due to the extent of his injuries, the right hand was amputated. At the time of the train incident S was reported to be in a depressed state with urges of self-harm.
On 13 January 2020, S made threats to cut off his right arm. He was voluntarily taken for hospital for assessment.
On 22 October 2020, S was scheduled under s 22 of the Mental Health Act 2007 (NSW) as a result of his ongoing threats to cut off his right arm and the discovery of a bone saw in his room.
On 22 January 2021, S amputated his right arm and refused surgery to have his right arm reattached. A police event reference report taken on that date records that S said to the paramedic that "he was not trying to kill himself but wanted to cut the arm off the (sic) causes him all the harm."
On 30 January 2021, police attended at Mr Emery's property, suspended his firearm licence and seized the registered firearm.

Relevant Legislation

Section 63 of the Administrative Decisions Review Act 1997 (NSW)(ADR Act) provides that, in determining an application for review, the Tribunal is to make the correct and preferable decision, having regard to the material before it, and any applicable written or unwritten law.
Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (NSW)(CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act.
The principles and objects of the Firearms Act are set out in s 3 of the Act, relevantly: Principles and objects of this 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, ... (2) The objects of this Act are as follows: ... (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms
Section 11(4)(a) of the Firearms Act is in the following terms: (4) Without limiting the generality of subsection (3) (a), 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,
Section 24(2)(d) Firearms Act is in the following terms: A licence may be revoked: (d) for any other reason prescribed by the regulations.
Clause 20 of the Firearms Regulations provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the person to continue to hold the licence.

Evidence

At the hearing Mr Emery relied on the contents of a letter dated 12 February 2021 that he wrote to the Commissioner as a witness statement. No objection was taken to this course by the Commissioner. Mr Emery was cross examined broadly about Mr Emery's property and residence, security measures for the safe keeping of the firearm and as to S's living arrangements on the property.
Mr Emery's evidence in chief was that, while S knew where the firearm was stored, he did not know where the keys were kept. However, Mr Emery agreed, during cross examination, that he did not know what was in S's mind or whether S knew where the keys to the safe and the sheds were kept.
Mr Emery also relied on a Poison Risk Assessment report conducted by Local Land Services NSW Government dated 25 February 2022 in support of a submission that Mr Emery was unable to use baits or poisons to control foxes.
Both the Commissioner and Mr Emery relied on documents lodged pursuant to s 58 of the ADR Act on 13 September 2021.

Submissions

Both parties filed written submissions prior to the hearing and made oral closing submissions. There is no dispute in regard to Mr Emery's good character or genuine need for a firearm.
Mr Emery's case is that S has no suicidal ideation and has never used a firearm to self-harm. That there is no evidence before the Tribunal that S has not been compliant with any treatment or that he has committed any further acts of self-harm to himself or to others. Mr Emery submits that the real issue that the Tribunal must determine is whether Mr Emery can exercise continuous and reasonable control over the firearm in the context of his domestic circumstances, and whether there is a likelihood that S will self-harm in the future and, if that happens, the likelihood that he will use or attempt to use a firearm.
Mr Emery submits that there is virtually no risk of S accessing the firearm to self-harm because the firearm is stored safely and securely and S has never used a firearm to self-harm in the past. Mr Emery submits that the facts of this case are almost analogous to those in Robson v Commissioner of Police [2020] NSWCATAD 72.
The Commissioner's case turns largely on the possible risk stemming from the fact that S lives on the property where the firearm is stored, knows where the firearm is stored and has a very recent history of extreme self-harm, that did not involve the use of a firearm.
The Commissioner submits that the real issue is the risk to public safety, that is safety to S in the event that he gains access to a firearm and uses it to harm himself. In closing submissions, the Commissioner submitted that the Tribunal cannot be satisfied as to the risk posed by S as there is no evidence before the Tribunal as to S's mental health and any medical treatment he may be undergoing. The Commissioner relies on s 11(7) of the Act and submits that it would be contrary to the public interest to grant Mr Emery a firearm licence because of the real and appreciable risk to the safety of S.

Consideration

There is no evidence upon which to question Mr Emery's good character or his genuine need for a firearm, given the size of the property and the activities he undertakes there. The only issue to be determined is the issue of public interest, that is whether in all the circumstances there is a real and appreciable risk to the public, including S. There is no evidence that Mr Emery presents any risk to the public safety, the Commissioner's concern is S.
Public interest is not defined in s 11(7) or elsewhere in the Firearms Act but is informed by the underlying principles and objects of the Act. Section 11(7) allows for matters beyond an applicant's character to be taken into account. Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSW ADT 50 at [23].
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 deciding whether to exercise a discretion adversely to an individual. In Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24], the Tribunal found that public safety is to be given paramount consideration.
In considering the question of public interest, the Tribunal takes into account the interests of public protection, public safety and the proper functioning of the legislative requirements of the firearm scheme. Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].
In Davos v Commissioner of Police [2013] NSWADT 7 at [117], the Tribunal said: The most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences.
Risk must be considered taking into account all of the relevant circumstances of the case. The risk in question must be a real and appreciable risk. Commissioner for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, Young CJ in Eq at [42] (V) In V, Young CJ in Eq was considering the meaning of the word 'risk to the safety of children' in s9(4) of the Child Protection (Prohibited Employment) Act 1998 (NSW)(Child Protection Act): What one is looking for is whether, in all of the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children. One, however, must link the word 'risk' with the words that follow, namely, 'to the safety of the children'.
Even though the court in V had the task of determining the meaning of the word 'risk' under the Child Protection Act, an analogous task is before the Tribunal, taking into account the objects and purpose of the Act. Taking into account the objects and purpose of the Act, the Tribunal must be satisfied that there is virtually no real and appreciable risk posed to the public safety by the granting or reinstating of a firearm licence. Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 [32]; Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 [28].
In Robson v Commissioner of Police [2020] NSWCATAD 72 (Robson) the Commissioner submitted that there was a real and appreciable risk of the applicant's husband using the firearm to cause harm to himself because of his suicidal ideation. The applicant's husband did not, in fact, harm himself, but had threatened to commit suicide on more than one occasion.
The applicant in Robson gave evidence about her husband's treatment and current medical condition and also led evidence on those topics from a forensic psychologist, a drug and alcohol counsellor. The applicant's husband gave evidence about his own condition, including his past problems with alcohol, and his current medical treatment.
The Tribunal in Robson found that, while the applicant's husband was receiving treatment with which he was compliant, sufficient time had not passed for the Tribunal to be satisfied that the husband's mental health issues were satisfactorily addressed. However, the Tribunal was able to assess, on the basis of the evidence before it concerning the husband's current medical condition, including expert medical evidence that the husband did not contemplate using a firearm to commit suicide, that the threat to commit suicide was a cry for help and that it is unlikely that he would have carried out the threat of using a firearm. It was partly on this basis that the Tribunal concluded that there is "virtually no risk to the safety to public safety if the applicant was given access to a firearm".[73] The Tribunal also found that the applicant did personally exercise continuous and responsible control over the firearm.
The Tribunal has to determine the correct and preferable decision based on the material before it and the relevant law: s 63 of the ADR Act. The Tribunal must consider the objects of the Act as set out in s 3(1)(a) which is to "confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety". In determining whether Mr Emery should be permitted to possess firearms, consideration must be given to the risk posed to public safety.
The Tribunal must objectively assess the established facts to determine whether there is a risk to public safety. In this matter, Mr Emery has led no evidence in regard to S's medical treatment or medical care. There was no evidence from S. There is no doubt that S's self-harming is extreme. This lack of evidence is relevant to the Tribunal's concern for the overriding need to ensure public safety.
The Tribunal does not have any material about S's current mental health, beyond Mr Emery's evidence and what can be inferred from the events disclosed. The Tribunal does not have direct evidence as to whether S has any intention or propensity to seek to use a firearm to self-harm. There exists a significant unresolved concern about S's mental health condition.
S carried out very serious and escalating self-harming acts in 2020 and 2021. In doing so, he executed the self-harm in a predetermined manner.
In the absence of any evidence about S's current condition, the Tribunal cannot rule out a risk that he may seek to use the firearm to self-harm. S knows where the firearm is stored and may know how to access the keys to the sheds and to the safes. While Mr Emery does not believe that his son knows how to access the keys to the sheds and to the safes, there is a possibility that he does and this cannot be ruled out.
While there is no burden on Mr Emery to prove that there is virtually no real and appreciable risk in being granted a firearm licence, the Tribunal has to consider all of the evidence in the exercise of its discretion. This includes the absence of evidence in regard to a real issue the Tribunal must determine.
Mr Emery's case that the Tribunal must determine whether Mr Emery can exercise continuous and reasonable control over the firearm in the context of his domestic circumstances as the start and end of the case misses the point that the Tribunal must also determine whether or not there is a risk to public safety. The Tribunal must consider the overriding obligation to ensure public safety in accordance with the Act. Taking into account that S lives on the property, knows where the firearm is stored and an absence of evidence about his current medical condition, the Tribunal cannot be satisfied that despite Mr Emery's security measures which would be sufficient and compliant if there was no safety concern about S are sufficient in this particular case to satisfy the Tribunal that he can exercise continuous and reasonable control over the firearm in the context of his domestic circumstances.
The Tribunal is not satisfied that there is virtually no real and appreciable risk posed to the public safety by the granting or reinstating a firearm licence to Mr Emery. The Tribunal accepts the Commissioner's submission that there is no evidence before the Tribunal that there has been an abatement of risk to S. This weighs against the Tribunal setting aside the Commissioner's decision to revoke Mr Emery's Category AB firearm licence.
While S has not used a firearm to self-harm in the past, in the absence of any medical evidence, taking into account the extreme self-harm that occurred less than 15 months ago, the Tribunal cannot be satisfied that S would not consider using a firearm to self-harm.
The correct and preferable decision is to revoke Mr Emery's Category AB Firearm 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 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: 12 April 2022

Firearms Act 2007(NSW)

Firearm Regulation 2017(NSW)

Child Protection (Prohibited Employment) Act 1998(NSW)

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Judgment (7 paragraphs)

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Legislation Cited (8)

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Cited By (6)