FLO v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2022-03-23

Applicable legislation

Section 39 of the Firearms Act sets out the general requirement imposed on all licence holders: 39 General requirement (1) A person who possesses a firearm must take all reasonable precautions to ensure - (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm. Maximum penalty - 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case. Note - Reference to a pistol includes a prohibited pistol. (2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.
Section 27 sets out additional responsibilities for persons conveying a pistol (i.e. a category H firearm): "Any person (other than a person who is engaged in the business of transporting goods) who conveys a prohibited firearm or a pistol must comply with the safety requirements prescribed by the regulations".
Clause 148 of the Firearms Regulation 2017 provides in pertinent part: 148 Non-commercial transportation of prohibited firearms and pistols - prescribed safety requirements (1) For the purposes of section 57 of the Act, the following safety requirements are prescribed - (a) the firearm must not be loaded with any ammunition while it is being conveyed, and it must be kept separate from any ammunition, (b) while the firearm is being conveyed - (i) it must be rendered temporarily incapable of being fired (for example, by removing the bolt or the firing mechanism or by using a restraining device such as a trigger lock), or (ii) it must be kept in a locked container that is properly secured to, or is within, the vehicle being used for transporting the firearm.
The issue in the present application is thus whether, by reason of the applicant's medical condition, it would not be in the public interest for the special condition on his licence to be removed.

The evidence

The respondent did not call oral evidence but relied on the documentary material, including the s 58 documents (exhibit R1) and on the cross-examination of the applicant's witnesses.

FLO, applicant

In oral evidence at the hearing, the applicant adopted his statement (with annexures) dated 2 December 2021 (exhibit A1) in which he stated that he was part way through completing a Bachelor of Advanced Science degree, with majors in chemistry and mathematics. He has a longer-term goal of completing a PhD in chemistry. He had previously worked as a university tutor. Outside of study, he pursues interests relating to technology, gaming and electronics. He has an accessible workplace at home which enables him to engage in those interests.
On 7 December 2016 he had applied for a firearms licence, claiming a pensioner concession on the basis that he has a disability support pension. He is eligible for that pension because he has a condition called osteogenesis imperfecta, which results in his bones being more brittle than those of most other people. He uses a wheelchair because of it.
At some time before February 2015, he tried out shooting as a sport at the SSAA range at St Mary's and decided he would like to pursue it further. He was issued with a probationary pistol permit on 15 February 2015, which was due to expire on 15 October 2016. He applied for a long arm licence in December 2015, and a full handgun licence in October 2016. The licence was subject to a special condition that he did not ask for which had the effect of prohibiting him from storing firearms at his residential addresses, and requiring him only to use and store them at the St Mary's range.
In his application for an internal review, he had attached a copy of a letter from Professor David Sillence dated 26 July 2016 (exhibit A1, annexure A) strongly supporting the flexibility that would be awarded by his being able to store the firearm at home, subject to the Firearms Act's storage requirements. The respondent appeared not to have agreed with that assessment and stated that it needed to be satisfied that there were no physical impairments that could impact on his ability to use and maintain the firearms without posing a risk to public safety before the condition could be lifted.
As a result, the condition remains in place, limiting where he can store his handgun (only at the St Mary's range). It was varied from the earlier version, which also restricted where the firearm could be used, but the storage limitation remains. The applicant does not consider the varied special condition necessary as he is able to store firearms safely at his home.
He did not believe his physical condition had any bearing on public safety, especially considering that he is able to use the firearm storage facility at the St Mary's range. He did not know what had prompted the respondent to impose the original condition, but could only assume that it came about because of a chain of events that commenced when he claimed the pensioner concession. He believed that had he not claimed the concession, there would have been no other information that would have caused the police Firearms Registry to even consider imposing such a condition.
The varied condition was maintained when he renewed his firearms licence in early 2021. He sought an internal review on 7 June 2021 with a view to having the condition lifted, but as his request was not resolved within the required timeframe, he appealed to this tribunal. Pursuant to that matter, he obtained a mobility assessment from Northcott, which is a not-for-profit disability service provider. The assessment was being provided by way of a witness statement from Ms Naomi Horschak, an occupational therapist.
Cross-examined by Mr Zoppo at the hearing, the applicant said he had not seen Dr Sillence for about two years, but would be seeing him again in the future. He had formerly had a trained dog for about 15 years to assist him with such actions as picking things up, and while the dog had helped him, it was no longer needed. He has a cleaner to help him with heavy laundry and similar matters, and although he can do those tasks by himself, it is rather awkward. He secures the services of an occupational therapist when he needs equipment or assessment. He uses crutches for short movements and can stand without help, but usually holds on to something if he is taking more than two steps.
He lives on the second level of his apartment building and uses his wheelchair and a lift to access it. He could climb the steps if he had to do so, holding on and walking, but it would be hard if he had to carry a heavy object, for example something weighing 10 kg. He uses public transport regularly, usually departing from Central as there are access ramps at that station. His last shooting practice was two years ago because of the COVID-19 restrictions. His practice has been to take the train to St Mary's and use his wheelchair to reach the range, which is about 15 minutes away. The range is chair friendly and the shooting is done on ground level. He is normally at the range for long enough to fire 30 or 50 rounds, and could be there for a couple of hours.
His power wheelchair uses one-handed joystick control and has a mid-wheel drive. There is space for carrying small objects in a bag on the side. He carries shopping in that way. Larger objects can be carried on hooks fitted at the back. If he is able to drive a motor vehicle in the future, he would do so, but now uses taxis, his chair or Lyft. If the special condition is lifted he would want to transport his Walther .22 in a lockable case with a trigger lock. He could transport the ammunition in a separate bag. The chair has no storage area, but the bag containing the locked case would be strapped on his shoulder. He could carry a reasonable weight that way, but not, for example, 50 kg.
Asked about the Mandela incident (exhibit R1, p 59), the witness said in 2002 he had been an in-patient there for a couple of months because of a court order, but he was admitted voluntarily. There had been a risk of self-harm at the time because he had attempted suicide. He had discussed it with the psychologist Mr Jones. He had received no psychological help since 2009 and there had been no untoward incidents.
In relation to his report to police about a bottle being thrown at him (exhibit R1, p 62), the witness said a neighbour had shouted criticism at him because he had not picked up his dog's droppings. He had not done so because people using assistance dogs are not required to do so. He can do it, however, and could do so then.
In re-examination, the witness said he had lived in his present apartment for 10 years. During that time the lift in the building has been out of order about three times, usually only for a couple of hours. If allowed to store his pistol at home, he would obtain a smaller and lighter lockable case and a trigger lock for the purpose of transporting it. The ammunition would be locked in a case in a separate bag. It is not heavy and he would have no difficulty in transporting it. He uses his power chair for distances, and the manual chair if preparing to enter a car and the chair needs to be folded up.
If the condition is lifted he would buy a safe that complies with regulations and have it installed by a tradesman. At present he owns no long arms, but if he were to do so in the future, he would need to reapply, or else store them at the St Mary's club. He would need to obtain his lessor's approval to install a safe, but was not aware of any special restrictions on storing firearms in Department of Housing accommodation. He occupies his apartment pursuant to an ordinary lease.
The applicant gave further evidence on the adjourned date, 27 May 2022. He said that the photographs in exhibit A4 were taken by himself. He used a textbook weighing about 2 kg in the bag to simulate the gun case. He had no problem lifting the bag and carrying it on his lap. It was secured by a strap over his shoulder and over his body. The photograph in annexure A2 showed the strap over his right shoulder and behind his back. The bag could not fall off and he was able to control his chair, as he often carries the bag that way. He prefers to place the strap over his shoulder, but could attach it in some other way if necessary. It would be in his line of sight.
On a visit to the range, he would use between 50 and 200 rounds. There are 50 in a box and usually they can be purchased at the range. He would mostly travel by public transport. As regards risk, there is some risk in everything we do.
In cross-examination the applicant said that his bag would not interfere with the wheels on his chair. He usually uses his Handy Bag to carry his wallet, keys and other items. He would carry the keys to the firearm case in his pocket.

Ms Naomi Horschak

Ms Horschak, who has been the applicant's occupational therapist for 3 years, attended the residential premises of the applicant on 14 September 2021 for the purpose of completing an occupational therapy report for these proceedings. Her 9-page report, with illustrations, is dated 14 October 2021 (exhibit A2, annexure A), and explains that [FLO} has a diagnosis of Bruck Syndrome, a very rare condition where there is a combined diagnosis of osteogenesis imperfecta and arthrogryposis. The former condition affects bone structure and composition, causing fragility, deformity of bones and of body structure. The latter is a congenital non-progressive disorder characterized by joint stiffness and contractures.
The key impacts of Bruck Syndrome for the applicant included limited mobility. He can walk very short distances at home, supporting himself on furniture or using crutches, but primarily mobilizes in a power wheelchair. He suffers from joint deformities and spinal abnormalities, joint stiffness and contractures causing limited movement range in trunk and lower limbs, short stature requiring customized seating and wheelchair frame, and a history of fractures. Cognition is not affected by Bruck Syndrome and [FLO] is a highly intelligent man.
FLO lives alone and is independent in relation to everyday tasks. He is an NDIS participant and receives in-home support once a week for assistance with kitchen tidying, heavy laundry and household cleaning. Ms Horschak had observed him independently and effectively performing a range of tasks that demonstrated his capacity to safely reach and open a gun safe, place items inside and retrieve them. That included independently picking up, carrying and placing hand weights (heavier than a sporting pistol) with both right and left hands.
He demonstrated independence with a range of other limb tasks including opening the front door and security door, picking up an object from the floor or bench and independently crouching to the floor to access an existing floor safe. He has an existing security safe in a cupboard and demonstrated his ability independently to mobilize to place a weight inside and lock the safe. He later independently retrieved the weight from the safe. Ms Horschak understands that he is independent in all tasks at the shooting range relating to the safe use and storage of his firearm.
The applicant's performance during the functional observation further demonstrated that he has a capacity independently and safely to reach and open a gun safe, place items inside and retrieve them.
In oral evidence at the adjourned hearing on 27 May 2022, Ms Horschak adopted her report (exhibit A2) and stated that the applicant has a diagnosis of Bruck Syndrome, a very rare condition where there is a combined diagnosis of osteogenesis imperfecta and arthrogryposis. She has no other clients with Bruck Syndrome, which is a rare condition, but has worked with arthrogryposis and another client with osteogenesis imperfecta.
She has known the applicant for 3½ years, mostly in relation to support with his technology, wheelchairs and interactions with NDIS. She has been to his house twice since September 2021 for about 2¼ hours each time. She explained in cross-examination that her role is assessment and prescription of assistance technology for NDIS and she is not his caseworker. She sees him in relation to equipment and technology and helps on an as-needed basis to help achieve his mobility and functionality goals. Since September she has been going through the process of arranging a new power chair and back support for him. A replacement chair has been ordered and is expected to be delivered in the coming months. The purpose of her report was to assess his capability to handle weights similar to a pistol, to place them in safe storage and perform similar tasks.
Referring to the effects of Bruck Syndrome as set out in exhibit A2, p 2, the witness said the applicant could walk short distances, holding a weight with one hand, getting out of the chair, and walking along the side of the bed. Otherwise, he uses crutches, to walk up to 4 or 5 m. There is some movement limitation in the legs, and also the effects of pain and fracture history. His condition makes the bones weak and he has suffered broken ribs, once by a sharp bump when using his wheelchair and once because of a strong sneeze, but not because of falls. He has had some hospital treatment, but not for some time.
The applicant is independent and lives alone. He has in-home support for two hours, twice a week, and meal service. He does his own shopping and attends to personal care as well as cleaning the house. Replying to the suggestion that her report related only to his activities at home, the witness replied that he can lift, carry and retrieve objects. He had said that at the shooting range he is independent in relation to firearms handling and cleaning. The report did not deal with transport and related matters, nor did it cover long arms, because he uses a pistol at present, so that was the focus of the report.
The carrying capacity of his current power chair consists of having a bag attached to the armrest. Users of power chairs do carry a great deal of stuff, including a backpack, but FLO is light and would not exceed the weight limit of his chair. His Handy Bag is attached to the armrest. There are no storage compartments on the chair but he could buy a bag or a backpack having pockets. His manual chair may have a compartment under the seat for carrying a wallet, glasses and similar items. The carrying capacity of the new chair will be 330 lbs or 130 kg. Exhibit A4, annexure A2 shows the pistol case.
The pistol itself weighs 53 gr, and the dimensions of the case are set out at annexure A3. Exhibit A1 showed the applicant carrying a satchel on his lap, which would not present a weight problem, but the bag would need to be attached so that he could operate the wheelchair joystick with his right hand. In attachment A1 the bag is attached to the armrest, which is appropriate. There would be no problem about weight, unless the wheelchair were to bounce. The satchel should be attached to the armrest if the dimensions allow it, and there could be sufficient clearance from the wheels. The applicant would have no problem picking up his satchel if it fell, as he can pick it up when he attaches it. He could get out of the chair to pick it up from the ground. There are straps to attach the satchel to the armrest, and also the back, but it is better to have it within the applicant's line of sight.
He could be aware of it if it were attached at the back, but the armrest would be preferable. The bag could also be attached to the other side of the chair. The weight of the ammunition would not be important because of the small weight in the ammunition box. The applicant can bend down to pick objects up, but prefers to avoid the regularity of repeated bending, though he can do it, getting in and out of the chair and picking things up. The fact that he did not pick up after his dog did not mean that he could not pick up the bag. The witness had seen him pick objects up, as the photographs showed. If for some reason he had taken his gun home from the range but could not get into the apartment building, he might have to return to the range.
The safest course would be to attach the bag to the chair, as simply holding it would be less secure. The same is true for the bag he uses to travel to university. Transporting it to the shooting club would not be a barrier if a practical way of securing it to the chair could be adopted. The risk to public safety inherent in transporting the firearm would be no greater than for an ordinary bag, but special precautions would be required. There would be no significant risk if the bag were attached to the chair, it would be no greater than for other persons. Keeping the bag within his line of sight would be preferable. He could also travel to the range with a friend by car, and that would be the best solution, but he could also do it on public transport. Anyone's bag can be stolen on the street and the applicant was at no greater risk of losing it. He had used the bag for three years and had not lost it or had it stolen. The bag would be attached to the chair and not marked, and would be kept within his line of sight.
In re-examination the witness said that the ammunition case shown at annexure A3 measured 41 by 28 by 6 cm, so it would be a snug fit in the Handy Bag. The bag itself has some flexibility, but the applicant could use a thinner ammunition case. The pistol satchel would be able to be attached to the other armrest - the applicant could travel with the ammunition on one side and the gun on the other. There is no pocket at the back of the chair, although it does have a bag hook. That could leave both hands free. Transporting the pistol and ammunition would be within his mobility range and the witness had no concerns about his ability to lift the containers.
The applicant's last stay in hospital was in 2019 in connexion with a fracture. The witness had no concerns about his welfare when shopping, attending university or using public transport. The applicant is independent and has good monitoring skills.

Respondent's submissions

The respondent relied on written submissions filed on 14 March 2022 (exhibit R2) which, after outlining the background of the matter and the applicable law, contended that the occupational therapy assessment did not address how the applicant could safely store at his home category AB long arms, or how the applicant was able safely to transport long arms and his pistol to and from his home at Redfern to St Mary's.
The respondent noted an incident in 2001 in which the applicant had lost control of his wheelchair and collided with the rear of a parked car (exhibit R1, p 54). There had also been an incident in 2012 when the applicant had reported a neighbour throwing a bottle at him when he went past the neighbour in his wheelchair with his assistance dog. It appeared that the applicant regularly took his dog outside and the neighbour was annoyed when the applicant could not bend down to pick up after the dog. According to the event report, the applicant does not pick up his dog's droppings as his disability physically prevents him from reaching so far down to the ground (exhibit R1, p 65).
While those incidents were some years old, they identified the difficulties that might present themselves when the applicant was faced with the task of safely storing and transporting firearms from his home address to the location where they would be used. The applicant's limitations in terms of movement and the risk of fracturing bones created potential risks to public safety. The tests that the applicant underwent with the occupational therapist were limited in nature in a controlled environment and related only to small items such as a pistol. The tests were directed only at establishing whether the applicant could in fact open the safe and place a firearm inside.
There was no currently available information before the tribunal that would establish that there is virtually no risk in the applicant transporting the firearms and ammunition to the St Mary's range or to any other location where the applicant might from time to time shoot. It was clear from the email attached to the written submissions (exhibit R2, attachment C) that the applicant intended to transport his firearms in his wheelchair on public transport to St Mary's and return. He had provided no evidence as to how that would take place in the wheelchair that he uses to travel and how he would address the risks inherent in such circumstances, especially bearing in mind his limitations in terms of movement and the increased risk of fractures.
Firearms transported in that manner would be obvious to others and accessible to other people who are not authorized to possess such firearms. Unlike firearms transported in a motor vehicle, the ability to conceal firearms in a wheelchair is limited, and unlike motor vehicle, the wheelchair does not contain a locked container that is properly secured to, or is within, the vehicle (see cl 148 of the Regulation). The special condition imposed allows the applicant the privilege of using firearms in the controlled and safe environment of the shooting range, while protecting the public from the risks that may be present if the applicant were allowed to store and transport his firearms from his apartment in Redfern.
The respondent made further oral submissions at the adjourned hearing on 27 May 2022, and pointed out that that there was now expert evidence before the tribunal. Ms Horschak supported the applicant's approach, but her role was to support him. Her evidence was that the pistol and ammunition could be carried, but the conditions under which that could be done would need to be specific, and the witness would need to carry out an assessment. The evidence at present was insufficient and not specific enough about weights and the attachments needed. If the tribunal were to decide to remove the special condition, specific conditions about attachment would be needed. The respondent submitted that the parties should have the opportunity of drafting new conditions for consideration by the tribunal. Leave was granted to lodge draft conditions and submissions by 10 June 2022. The submissions received are considered below.

Consideration

Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's imposition of a condition on a licence or permit: s 75(1)(b). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) 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. Section 11(4)(c) also provides 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 the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
It is not suggested that the applicant is not a fit and proper person to hold a firearms licence. The ground on which the respondent seeks to impose the condition is that in the absence of the special condition it would not be in the public interest for the applicant to hold a licence, within the meaning of s 24(2)(d) and cl 20.
The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They 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, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66] 66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
Originally a substantial part of the respondent's submissions in support of the special condition about storage stemmed from concerns about the applicant's then intention of transporting long arms on public transport to the range at St Mary's and return. It was submitted that the applicant had provided no evidence about how he would do so in a wheelchair and how he would deal with the risks inherent in such circumstances, especially bearing in mind his limitations of movement and the increased risk of fractures. Firearms transported in that manner, it was argued, would be obvious to others and accessible to other people who are not authorized to possess firearms. The ability to conceal firearms on a wheelchair is limited.
The applicant has since withdrawn his application in relation to long arms and now only seeks to have the special condition lifted in relation to category H. Further, he has now provided expert evidence from an occupational therapist, Ms Naomi Horschak, in relation to his ability to handle, safely store and transport a category H firearm. That evidence is considered below.
In his own evidence, the applicant stated that he did not believe his physical condition had any bearing on public safety, especially considering that he is able to use the firearm storage facility at the St Mary's range. If he were permitted to store handguns at his home, he would transport them to the range where he was shooting, either with the assistance of a friend by using his or her car, or by public transport using his motorized wheelchair. In either case he would place his pistol in a lockable carrying case and put it in a satchel or similar bag to enable it to be carried and transported. He supplied photographs of the satchel he would use. He would transport the ammunition in a lockable case and either load it into the car, or secure it in one of the bags on his wheelchair.
To the best of his knowledge and research, there is no prohibition on the storage of firearms by public housing tenants in public housing in New South Wales, though he would need to obtain the lessor's permission to install a safe. He noted that Dr David Sillence, of the Western Sydney Genetics Program in his letter of 26 July 2018 (exhibit A1, attachment A) had strongly supported the flexibility that would be awarded to the applicant by his being able to store the firearm at home, consistently with the requirements of the Firearms Act. It would allow him far more flexibility than only being able to obtain his firearm from the St Mary's safe storage facility.
In cross-examination, FLO detailed how he manages with household tasks, access to his apartment and mobility. His practice had been to take the train to St Mary's from Central and use his wheelchair to reach the range, which is about 15 minutes away. The range is wheelchair-friendly and the shooting is done on ground level. He is normally there for a couple of hours. If the special condition were lifted, he would want to transport his .22 in a lockable case with a trigger lock. He could transport the ammunition in a separate bag. The chair has no storage area, but the bag containing the locked case would be strapped on his shoulder. He could carry a reasonable weight that way, but not, for example, 50 kg. The ammunition would be locked in a case in a separate bag. It is not heavy and he would have no difficulty in transporting it.
In his further evidence on the adjourned date, the applicant explained the photographs he had taken (exhibit A4), and how he had used a textbook to simulate the weight of a gun case. He had no problem lifting it and carrying it on his lap, the strap going over his shoulder and across his body. The bag could not fall off and he could retain control of the chair, as he often carries objects in that manner. He would mostly use public transport and would prefer to keep the strap of his bag over his shoulder, but he could attach it to the wheelchair if necessary, such that it would be in his line of sight. It would not interfere with the wheels of the chair.
Ms Naomi Horschak, an occupational therapist who has assisted the applicant for 3½ years, in her report dated 14 October 2021 (exhibit A2, annexure A) explained the impacts of Bruck Syndrome, including joint and spinal abnormalities, joint stiffness and contractures causing limited movement range in trunk and lower limbs, short stature requiring customized seating and wheelchair frame, and a history of fractures. Cognition is not affected by Bruck Syndrome, and the applicant is a highly intelligent man.
The report states that the applicant is independent in relation to everyday tasks. He is an NDIS participant and receives home support once a week for assistance with kitchen tidying, heavy laundry and household cleaning. Ms Horschak had observed him independently and effectively performing a range of tasks demonstrating his capacity safely to reach and open a gun safe, place items in it and retrieve them. That included independently picking up, carrying and placing hand weights (heavier than a sporting pistol) with both right and left hands.
He demonstrated independence with a range of other limb tasks, including opening the front door and security door, picking up an object from the floor or bench and independently crouching to the floor to access an existing floor safe. He demonstrated his ability independently to mobilize to place a weight inside and lock the safe, later retrieving it. He was understood to be independent in all tasks at the shooting range relating to the safe use and storage of his firearm. His performance during the functional observation further demonstrated that he has a capacity independently and safely to reach and open a gun safe, place items inside and retrieve them.
In cross-examination, Ms Horschak outlined the carrying capacity of the power wheelchair and the various ways two bags could be attached to the armrest or the back or both, on the basis that the firearm and the ammunition had to be carried separately. It would be preferable to attach the bags to the armrest if the dimensions allowed, and have the pistol case in line of sight. She did not think the applicant would have any problem with picking up a bag to attach to the chair because he already routinely attaches the Handy Bag in that way. He can get out of the chair and pick up a bag from the ground. Straps could be used to attach the bag to the armrest.
Ms Horschak had seen the applicant picking up objects and considered that transporting the pistol and ammunition to the club would not be a barrier if a practical way of securing them could be adopted. He could travel with the ammunition attached to one armrest and the gun case to the other. Transporting the items in that way would be within his mobility range and she had no concerns about his lifting them, any more than she had concerns about his doing his shopping, attending university or travelling on public transport. He is independent and his monitoring skills are good.
The risk of theft in a public place was no greater than for an ordinary bag, but additional precautions would be needed. But there would be no real risk if the bags were attached to the chair, no greater risk than for other people. He could also travel with a friend by car, which would be the best option, but could also do so on public transport. Anyone's bag can be stolen on the street and the applicant was at no greater risk of losing it. He has had the Handy Bag for three years and not lost it or had it stolen.
The respondent expressed reservations about the expert evidence, saying that it was general in nature and not sufficiently specific about the manner in which the containers would be attached to the chair. There would need to be specific conditions and Ms Horschak would need to do an assessment.
The applicant is a single man aged 42 who suffers from serious disabilities resulting from a rare condition called Bruck Syndrome which causes restrictions of movement, joint stiffness, fragility and deformity of bones and body structure. It is a congenital non-progressive disorder. Despite serious challenges, the applicant is independent in relation to everyday tasks and effectively performs a range of tasks demonstrating his capacity safely to reach and open a gun safe, place items inside and retrieve them.
He can also pick up, carry and place heavier weights with both right and left hands. He has demonstrated to Ms Horschak independence with a wide range of other limb tasks, including opening the front door, a security door, picking up an object from the floor or bench and independently crouching to the floor to access a floor safe. His performance during the functional observation further demonstrated that he has a capacity independently and safely to reach and open a gun safe, place items inside and retrieve them.
Bruck Syndrome does not affect cognition and Ms Horschak observed that the applicant "is a highly intelligent man" (exhibit A2, p 2). He is halfway through a university course leading towards a Bachelor of Advanced Science and continues in that program. He was previously employed as a tutor in chemistry and mathematics at a major university, while also completing an internship at the National Measurement Institute. He hopes to continue his studies and complete a postgraduate PhD in chemistry.
A forensic psychologist, Mr Bradley Jones, reported that the applicant did suffer from periods of depression between the ages of 17 and 28 caused by pain and family relational difficulties, but he ceased antidepressant medication in 2008 and his symptoms of depression resolved in 2009. His continuing studies "continue to serve as a strong motivating and protective factor against the development of depression" (exhibit R1, pp 8 - 12). Also supportive of his application to store a firearm at home are Dr Sillence and Ms Horschak.
The applicant has displayed determination and concentration to a degree that has enabled him to achieve much and to have a positive perspective for the future. He has a clear understanding of the special precautions needed in transporting a firearm in public, especially on public transport, and has given considerable thought to methods of ensuring that he could travel to and from the range without risk to the public. Ms Horschak found that he has good monitoring skills. He has carried heavy textbooks and other items in his bag on the wheelchair for 3 years without incident.
In 2001 there was an incident when he lost control of his wheelchair and collided with the rear of a parked car (exhibit R1, p 54), but as the respondent very properly acknowledged, that was a long time ago now. While lifting the special condition in relation to conspicuous category AB long arms would have presented considerably greater problems, the applicant has withdrawn the application in relation to that category and now only seeks to have a condition in relation to category H removed.
At the end of the hearing leave was granted to the parties to lodge further written submissions concerning the manner in which the bags containing the pistol and ammunition would be attached to the wheelchair and incorporating those details in an amended special condition.
In written submissions filed on 20 June, the parties set out proposed varied special conditions, which were similar but not identical. The respondent submitted (while preferring the condition as set out in the reviewable decision) that any varied condition should require two reviews by the occupational therapist Ms Horschak, one concerning the items that the applicant undertakes to use, and a second review certifying that the applicant is personally capable of attaching and removing the two loaded bags to his wheelchair and safely operating the wheelchair while the bags are in place with the locked containers containing firearms and ammunition. The respondent argued that if the firearms were allowed to be stored at the applicant's property without the need for any report, that would create a situation where the applicant, if he received an unfavourable report, may not provide it to the Commissioner but still be allowed to house his firearms at his home and be tempted to transport the firearms by public transport without having the process confirmed by the occupational therapist.
As was said in Webb, "Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Given the evidence of the applicant's excellent monitoring skills, high intelligence and record of conscientious compliance, the risk to public safety involved would seem to fall within the purely theoretical category. The version of the condition put forward by the applicant appears to provide fully satisfactory protection for the public. On a balanced view of the evidence, therefore, bearing in mind all the relevant circumstances, I find that there is virtually no risk to the public (including to the applicant himself) involved in appropriately varying the special condition on the applicant's category H firearms licence.
I therefore conclude that it would not be contrary to the public interest for the applicant to continue to hold a licence with the special condition. The decision under review should be varied by amending the special condition on the applicant's category H licence to read as follows:
Special condition. 1. Subject to the exception at paragraph (2) below, firearms and ammunition are not permitted to be stored at the residential address of the licence holder. All firearms registered to that licence must be stored at SSAA (NSW) Sydney branch, St Marys safe storage facility located at 30 Powers Street, St Marys NSW 1790. 2. The licence holder's category H firearm(s) and ammunition for same may be stored at the residential premises of the licence holder. 3. When the licence holder is transporting category H firearms (either in a private car or by public transport), a trigger lock must be fitted and the firearm must be contained in a locked container kept separate from the ammunition. 4. When the licence holder is to transport his category H firearm(s) by way of public transport: 1. a single category H firearm and ammunition can be transported from the residential premises of the licence holder; 2. the locked container in which the firearms are stored must be placed into a bag or case of sturdy construction, carried by the licence holder; 3. the ammunition for the firearm can only be transported in a separate locked container that is within a bag or case of sturdy construction that is securely attached to the side of the wheelchair. 1. The licence holder shall not use public transport to transport any firearms or ammunition from his residential address until he provides the respondent with a report from Ms Horschak, the licence holder's occupational therapist, that states that she has examined the locked containers and bags that the licence holder intends to use to transport a single category H firearm and ammunition, and certifies that the licence holder is personally capable of attaching and removing the bag containing ammunition to his wheelchair, and carrying the other, and safely operating the wheelchair with that setup.

Publication restriction

The applicant also sought an order under s 64(1)(a) of the Civil and Administrative Tribunal Act (CAT Act) prohibiting the disclosure of his name on the ground that the evidence and submissions contain detailed personal medical information and information the disclosure of which could also entail security risks. The respondent did not oppose the application and the order will be made.

Orders 1. The decision under review is varied by amending the special condition on the applicant's category H licence in terms of paragraph 86 of these reasons. 2. Pursuant to s 64(1)(a) of the CAT Act, the disclosure of the name of the applicant is prohibited. The applicant is to be referred to by the letters FLO.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 05 July 2022 - Amended Acronym in Publication restriction on coversheet. 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: 05 July 2022

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (9)