Gardiner v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2022-10-05

REASONS FOR DECISION

This is an application by Mr Gardiner seeking a review of the decision of the Commissioner of Police (the Commissioner) to refuse the Category AB firearms licence in a letter dated 31 May 2022.
For the reasons that follow, the Tribunal affirms the Commissioner's decision.

Background

On 6 September 2014 Mr Gardiner was issued with a firearms licence. On 7 November 2018 Mr Gardiner's licence was suspended and on the 1 June 2019 the firearms licence was revoked. The suspension and revocation happened as a result of a report made by Mr Gardiner's ex-girlfriend that he deliberately crashed his motor vehicle in an attempt of self-harm. On 3 November 2021, Mr Gardiner applied for a firearms licence. The firearms licence was refused because of his previous attempts at suicide or self harm and that Mr Gardiner falsely stated on the application form for the firearms licence that he did not ever attempt suicide or self harm. Reliance is placed on the 'public interest' ground in s11(7) of the Firearms Act 1996 (NSW) (Act). Reliance was also placed on s70 of the Act (provision of false or misleading information) and s11(4)(b) of the Act (continuous and responsible control of the firearms).
The Statement of Reasons given by the Commissioner on the internal review dated 31 May 2022 relied on: 1. An attempted suicide three years ago; 2. The removal of a firearms licence after an attempt at self harm by hanging; 3. Failure to disclose pertinent information on the form; 4. A report from a psychiatrist whom Mr Gardiner had met on one occassion.

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 and 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 Act are set out in s 3, 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, and (ii) by promoting the safe and responsible storage and use of firearms, and … (2) The objects of this Act are as follows: … (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner,
Section 11 of the 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 - … (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
Section 70 of the Act states: A person must not, in or in connection with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular.

Evidence

Mr Gardiner relies on a statement filed in these proceedings (Exhibit A2). He was required for cross examination. Mr Gardiner's evidence was that he had a motor vehicle accident on 2 November 2018 as a result of losing consciousness because of low blood sugar levels caused by type 1 diabetes. Mr Gardiner stated that the accident occurred two houses away from his home. He was wearing a seat belt, driving at 40km an hour and hit a tree. He denies that the motor vehicle accident was an attempt at self harm. Mr Gardiner's evidence was that when police attended at the scene and they assumed that he was 'drunk'. His blood sugar levels were not taken.
Mr Gardiner stated that he did not have time to get a medical report and as a result his firearms licence was revoked in 2019.
For this firearms application, Mr Gardiner relied on two medical assessments. One from his GP, Dr Crawford and another from a psychologist, Dr Barrett.
Dr Crawford's opinion was of the opinion dated 26 October 2021, stated that after examining him that day he had no symptoms or signs of depression. He used a K10 test and it demonstrated as well that there were no signs of depression. Dr Crawford was of the view that the examination did not identify anything that would prevent him obtaining a firearms licence.
Dr Barrett, in her report dated 28 March 2022, stated that she made the assessment based on the information provided to her by Mr Gardner's GP and her own assessment conducted on the same day. Dr Barrett stated that Mr Gardiner had never been diagnosed with any condition or impairment, that, he was not taking any medication and that there were no adverse effects on his alertness or the ability to drive vehicle or to operate machinery.
Dr Barrett stated that Mr Gardner did not have any suicidal ideations and in her expert medical opinion, there was no risk that Mr Gardner's condition or impairment may impact on his ability to exercise continuous or responsible control over firearms. In regard to Mr Gardiner's history she states that he attempted suicide by hanging once three years ago in the context of a long term relationship break up. He immediately got help after this attempt. As to the current situation, she stated that Mr Gardner has good relationships, has friends, enjoys his work life and has hobbies and is no longer a binge drinker. Dr Barrett was of the opinion that Mr Gardiner does not have a depressive mood and that he has more protective factors than he had when he previously attempted suicide in 2018. It is her opinion that it is highly unlikely that he will relapse. Dr Barrett records that Mr Gardiner has never attempted to use firearms against himself or anyone else.
Dr Barrett's notes of the conference with Mr Gardiner included the following: 2018: thought about suicide by hanging but didn't attempt it because he thought that the rope would break told the GP this wasn't keen for help at that time, never felt suicidal before 2018.
During cross examination Mr Gardiner denied that he attempted suicide in November 2018 by hanging. He said that he told Dr Mahoney that he thought of committing suicide in that manner but did not attempt it. He said that Dr Barrett read Dr Mahoney's notes and assumed that he had attempted to commit suicide but had not discussed it with her during the consultation.
The Commissioner relied on documents lodged pursuant to s 58 of the ADR Act (Exhibit R1) and documents received pursuant to a summons from Dr Barrett in regard to all medical records in her possession in relation to the consultation with Mr Gardiner (Exhibit R2)
Exhibit R2 contains six pages of hand written notes made by Dr Barrett which are in most part not legible. There is a letter from Dr Barrett to Dr Shaw dated 28 March 2022 in regard to the referral of Mr Gardiner. In the letter reference is made to a suicide attempt by hanging three years ago. The documents contain notes made by Dr Mahoney based on consultations with Mr Gardiner. The notes in regard to consultations on 26 November 2018 to 30 November 2021 are of relevance. Dr Mahoney records the following matters at the consultation on 26 November 2018. 1. Suicide attempt to hang himself on Saturday night. Anchor point for noose gave way resulting in unsuccessful attempt. Suicide attempt in the context of a relationship breakup with a long term partner; 2. Texted ex partner, she called 000, patient declined assistance; 3. Report of a previous suicide attempt but uncertain of the date, had his firearms removed; 4. No active plans, no active thoughts of suicide; and 5. Impression of chronic undiagnosed mental health issues.
It is also recorded that Mr Gardiner declined mental health care plan citing ineffective nature of psychotherapy.
Between 26 November 2018 and 3 December 2018, Dr Mahoney was in close contact with Mr Gardiner and was monitoring his condition and made referrals to support services.
On 21 November 2021 which is just less than 3 years following the suicide attempt, Mr Gardiner attends on Dr Shaw and informs his that three years ago he had a car crash and that his ex girlfriend informed the police that it was a suicide attempt and that as a result his firearms licence was revoked. He wants his firearms licence again and requires a psychologist report.
On 30 November 2021, Mr Gardiner attended on Dr Shaw in regard to numerous issues including the firearms licence. There was a discussion of the suicide attempt by hanging and previous suicide attempt in 2018.

Applicant's submissions

Mr Gardiner submitted that he had a firearms licence for a long time without incident. He would like firearms for hunting. He has never considered and would never consider the use of firearms to harm himself or others.
He answered no to the question 'have you ever attempted suicide or self harm' because it is true that he has never attempted suicide or self-harm.

Respondent's Submissions

The respondent submitted that the Tribunal should find that Mr Gardiner did attempt suicide by hanging in November 2018 consistent with the medical records from the medical practitioners and that he did attempt suicide or self-harm by crashing his motor vehicle in November 2018.
The respondent submits that the firearms licence should not be granted based on public interest and the false response in the application form for the firearms licence.

Consideration

Section 11(7) of the Act permits a refusal of a firearms licence if it is contrary to public interest. Public interest includes the applicant's safety and that of the whole community. In considering public interest, the objects and scope of the Act are amplified; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors [1995] IRCA 540; (1995) 131 ALR 657 at 681 per Wilcox and Keely JJ and are given paramount consideration Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
Consistent with s 3(1)(a) of the Act, the applicant's individual interest in obtaining or retaining a firearms licence is subservient to the public's right to safety.
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 firearms scheme. Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].
Firearms possession is a privilege and his conditional on the need to ensure public safety. Misuse of firearms can result in catastrophic consequences. Davos v Commissioner of Police [2013] NSWADT 7 at [117]; Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28.
In Martin v Commissioner of Police, NSW Police Service [2017] NSWADT 97 at [66] the Tribunal observed: The question of risk is therefore not viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety.
I have concerns about Mr Gardiner's evidence that Dr Mahoney's medical records are erroneous. Dr Mahoney spend a considerable amount of time and effort following up with Mr Gardiner in December 2018. It is clear that he was doing that because he had significant concerns for Mr Gardiner's mental health. I do not consider that Dr Mahoney's records are erroneous as they are consistent with his conduct and the representations he made to mental health professionals. I also note that he asked Mr Gardiner if he could contact 000 and his family if he had concerns about his mental health. He organised for Mr Gardiner to be contacted by both Accessline and the local community mental health team.
Dr Barnett's report also refers to the suicide attempt. Mr Gardiner's evidence that he never discussed the issue with Dr Barnett is difficult to accept, for three reasons. First, there are before the Tribunal, notes made by Dr Barnett that show that the issue was discussed on 28 March 2022, secondly Mr Gardiner sought to secure a report from a psychologist for the purpose of responding to the decision made by the respondent based on her concerns about an attempted suicide. As such Mr Gardiner would have been motivated to secure a report from Dr Barnett addressing this issue. Thirdly, Dr Barrett in her report explicitly stated that she did not consider that Mr Gardner was at the time of the assessment suicidal, she would not have been able to form this conclusion without raising it with Mr Gardiner.
Mr Gardiner relies on Dr Barnett's report. Dr Barnett in her report stated that Mr Gardiner did attempt suicide in 2018. Dr Barnett would have formed that opinion based on the consultation with Mr Gardiner and the medical reports before her. She plainly did not accept Mr Gardiner's statement that he did not attempt to hang himself in 2018. Her opinion, as expressed in the report is that he did 'attempt suicide once three years ago in the context of a long term relationship break up'.
For these reasons I am not satisfied that Mr Gardiner's evidence before the Tribunal was not candid, this goes to his character. It follows that I consider that Mr Gardiner did provide incorrect or false information in response to a question in his application in regard to attempted suicide in November 2018.
In determining the correct and preferable decision the Tribunal must consider whether, based on all the evidence before the Tribunal, Mr Gardiner would pose a risk to public safety if he was granted a firearms licence.
In applying the law to the facts before the Tribunal, I am of the view that it would be contrary to the public interest for Mr Gardiner to be presently issued with a firearms licence.
The correct and preferable decision is to affirm the decision of the Commissioner to refuse Mr Gardiner's application for a firearms licence.

Orders 1. The Respondent's decision 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: 01 December 2022

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (3)

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