Hunt v Commissioner of Police

NCAT Administrative and Equal Opportunity|2021-02-09

REASONS FOR DECISION

The applicant, Mr Hunt, has applied for a review of the respondent's decision to refuse him a Category AB firearms licence under s 11(4(a) and (7) of the Firearms Act 1996 on 19 May 2020.
The refusal was based on two incidents of attempted self harm in his personal history. The respondent concluded it was not in the public interest for the applicant to have a firearms licence. In the proceedings before the Tribunal, the respondent also relied on what it said were instances of providing false and misleading information when making declarations required under the Firearms Act.

Legislative context

Section 3 of the Firearms Act sets out its principles and objectives: "3 Principles and objects of 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 (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows - (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (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, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms."

Incidents of attempted self harm

The respondent relied upon two incidents in the applicant's history as evidence that it was not in the public interest for the applicant to be granted a firearms licence.
The applicant did not dispute the two incidents of attempted self harm had occurred, but disputed the interpretation to be put on them.
The evidence for the applicant consisted of: 1. A report by Dr Christopher Cocks, consultant psychiatrist dated 8 September 2020. 2. A report by Maria Hamidi, psychologist dated 1 October 2019. 3. 6 character references from colleagues, family and friends. 4. Mr Hunt did not provide a witness statement but he provided written submissions and he gave oral evidence and made himself available for cross examination.
The evidence for the respondent was: 1. The s 58 documents 2. Mr Hunt's subpoenaed medical records 3. A P650 form (Declaration - person shooting on an approved range or undertaking a Firearms Safety Training Course) signed by Mr Hunt on 24 March 2019
Based on contemporary police records, in May 1999 two friends of the applicant and his girlfriend became concerned about his welfare. They located him in his vehicle at North Head. The applicant was apparently unconscious, sitting in the driver's seat and had a rifle positioned between his legs, the barrel pointing upwards. His friends secured the rifle and police were contacted. He was treated by ambulance crews and conveyed to hospital. According to police the rifle was loaded with one round in the chamber, 7 rounds in the magazine and the safety catch discharged. The applicant did not have a firearms licence at the time.
The second incident according to police records occurred in August 1999 when the applicant was on a hike with friends in the Blue Mountains. Police were informed by one member of the hiking group that the applicant had kidney pain, exhaustion and blood in his urine overnight. He was located by Police and ambulance staff and taken to hospital where he disclosed that he had previously taken Panadol and rat poison.
In his application for internal review, the applicant stated that those historical events were no longer a safety concern or a risk and that he had not demonstrated any acute mental illness, suicidal ideation, criminal activities, impulsive decision making or violent behaviours. He said that those incidents were attributable to a crisis in his life and a lack of resilience and resources to deal with the crisis.
The applicant relied on the evidence of Dr Cocks. Dr Cocks was cross examined at the hearing. His report was provided for the hearing in the Tribunal and he was accepted as an expert witness. Dr Cocks conducted a clinical assessment of Mr Hunt on 8 September 2020 and reviewed a number of documents including the internal review decision, Ms Hamidi's report, and the notice of refusal.
He concluded that in his opinion Mr Hunt does not suffer from a mental illness, but had historically had Major Depressive Disorder in 1999. He said it was possible that being prescribed Roaccutane had contributed to the deterioration in his mental health at that time as it is associated with psychosis. He was under significant stress at that time having left the Hillsong Church and losing contact with his peers there.
In 2012 he had another episode of depression and was prescribed medication as well as therapy.
In Dr Cocks' opinion, his current mental health is stable and would not negatively impact upon his ability to continuously and responsibly control firearms.
He showed rational judgment and had completed a University degree and obtained the role of Social Work Team Leader at the Brain Injury Unit at Liverpool Hospital. When his mental health declined in 2012 he showed insight into his condition and sought treatment which resulted in an improvement.
He considered that the prescription, the bullying at school, a relationship breakdown, and leaving the Church were causative of his mental health deteriorating in 1999. Depression puts one at increased risk of developing suicidal ideation and / or engaging in self harm behaviour. It was difficult to state whether his previous history of attempted self harm affected his risk of suicidal ideation in the future. In fact his past history may assist him to seek help as he did in 2012. His actions in 2012 was a positive sign in his view.
He said a past history of depression is significant but the re-emergence in 2012 was based on different factors. His 20 years of good life choices was also significant.
There are no factors which increase his risk of harm to himself or the community such as a history of violence, anti-social behaviour, criminal record, substance use disorder or traumatic experiences. His use of a firearm would cause no greater risk to public safety than any general member of the public.
Ms Hamidi conducted a number of psychometric assessments on Mr Hunt and concluded that the results showed that Mr Hunt: 1. Had high self esteem 2. Was in the healthy range and was not experiencing clinical psychological distress 3. Had a high level of reported psychological wellbeing, resources and strengths 4. Did not meet the threshold for clinically significant depressive symptoms 5. Had low impulsivity.
She considered that his mental health would not negatively impact his ability to use firearms responsibly and did not pose a risk to public safety.
In his evidence, Mr Hunt said that he attributed his self harm attempt in 1999 to the medication he had been prescribed as well as a relationship breakup, and the effects of bullying at high school and leaving the support of his church around that time. He said he was in the Army Reserves and had applied for but been rejected from the SAS for colour blindness.
He bought the firearm from a friend. It was not registered. He did not wish to go through with the attempt and telephoned a friend. He was in hospital for 3 days.
He agreed with the facts of the second self-harm attempt. He said that he felt shame and regret for the events of 1999 and did not want to be seen as a risk to himself or others.
He said in 2011 a relationship had ended and this led to depression in 2012, but he sought help.

False and misleading statements

The P650 form which the applicant signed on 24 March 2019 is a form which must be completed by unlicensed persons before they can possess and use firearms at a shooting range.
In completing the form, Mr Hunt ticked "No" next to the question: "Have you in NSW or elsewhere… ever attempted suicide or self harm?"
The form contains a Declaration which states: "I understand that it is a serious offence under the Firearms Act 1996 to make a statement or provide information that I know is false or misleading and I certify that all the information contained in this declaration is true and correct in every detail."
On 1 April 2019 Mr Hunt completed his application for a firearms licence on the Service NSW website. The completed form was contained in the s 58 documents. The form contains the question: "Have you in NSW or elsewhere: Ever attempted suicide or self harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?"
Mr Hunt answered "No."
The Declaration to the form states: "I understand that it is a serious offence under the Firearms Act 1996 to make a statement or provide information that I know is false or misleading and I certify that all the information contained in this application is true and correct in every detail."
Mr Hunt ticked the box stating: "I can confirm that all statements noted in the declaration are true and correct."
Mr Hunt conceded under cross examination that he knew that if he had disclosed previous attempts at self harm he would have had to get the Commissioner's permission to do the firearms course. He agreed that he signed the declaration understanding that it was an offence to make a misleading declaration, but he thought it was not misleading because it was 20 years ago.
He said that he gave the same answer on the licence application form stating that he did not read it as asking whether he had ever attempted self harm. He thought it only applied to incidents in the last 10 years. He knew the police would have records of his self-harm attempts. He compared it to the questions about criminal offences which only asked if any offences had been committed with the past 10 or 20 years. He agreed he made a mistake but stressed that police would have known the facts anyway, and he was ashamed of his suicide attempts.

Submissions

Mr Hunt submitted that the factors which had contributed to his self harm attempts were no longer present. He had developed resilience and had advanced in his career and maturity since then. He was able to respond promptly if he felt depressed at any time in the future. He submitted that he posed virtually no risk to the community if he was issued with a firearms licence and no risk more than anyone in the general population.
With regard to his answers to the questions on the P650 and the licence application, he submitted that he was well aware that the Police would have a record of the 1999 incidents and that they would conduct background checks, but he did not consider that incidents over 20 years ago would be relevant. He did not intend to mislead or deceive in an attempt to get a firearms licence on false information.
He did not see the 1999 incidents as relevant to his present eligibility for a licence, as he had moved on, and could not understand how they were relevant or significant. He did not intend to mislead the Commissioner.
He also relied on the character references he had supplied. These were favourable and spoke highly of his responsibility, judgement and character.
Mr Zoppo for the Commissioner submitted that Mr Hunt came very close to death on two occasions in 1999. On one of those occasions he was in possession of an unlicensed loaded firearm. Admittedly this was 20 years ago but it was still significant. He submitted that it is not in the public interest for the applicant to be granted a firearms licence, in reliance both on his mental health history and his failure to be truthful in his declarations on the P650 and the application for a licence.
He relied on the decision of Senior Member Emeritus Professor Walker in Kogias v Commissioner of Police [2020] NSWCATAD 297 where the applicant had also entered false information on a P650 and a licence application form. His application was refused.

Consideration

I am required to determine what is the correct and preferable decision, based on the material before me, including the applicable law and the relevant factual material.
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 it was said at [25]: "The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual."
That case concerned security licensing but it has been applied to firearms legislation in Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 and Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16.
In Constantin at [33] the Appeal Panel stated: "The 'public interest' allows, we consider, for 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."
The principles of the Act in s 3 reinforces that the Legislature regarded firearm possession and use as "a privilege that is conditional on the overriding need to ensure public safety."
In Kogias at [101 -102] [100-114] the Senior Member said: "Legislation such as the Firearms Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and similar orders serve the public interest by establishing a regulatory structure for an activity that not only protects the public from harm, but also helps to maintain public confidence in the licensing scheme by signalling that those whose activities do not meet the required standards will not be granted a licence or permit: Moujalli v Roads and Maritime Services [2017] NSWCATAD 141, [52] - [53]…. Specifically in the context of firearms licensing, the tribunal stated in Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240, [26], that "the system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act". That such information must be true and correct is made explicit by s 70, which states that "A person must not, in or in connexion 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…."
The evidence before the Tribunal indicates that the applicant's mental health is very different from what it was in 1999. He has shown insight into his condition and the ability to detect when his mood changes and seek treatment. I accept that there were a number of contributing factors to his major depressive disorder in 1999 which are no longer present. While he did have a recurrence of depression in 2011-12, there have been no further attempts at self harm and on that occasion he sought treatment successfully. The applicant does not have a criminal record. Since 1999 he has completed university studies and has a job which carries significant responsibilities. Dr Cocks' opinion was that the applicant's use of a firearm would cause no greater risk to public safety than any general member of the public.
Based on the available evidence, I do not consider that his previous attempts at self harm weigh against him in determining whether it is in the public interest for him to be granted a firearms licence.
One aspect of the 1999 incidents is that he was found in possession of a loaded firearm which he had bought and which said to be unlicensed. The evidence about this was scant and no charge was laid at the time. Therefore I have not given any weight to this factor.
The failures to declare his past attempts at self harm, however, occurred in early 2019. The applicant admitted under cross-examination that he knew if he declared a previous attempt at self harm he would have had to obtain the Commissioner's permission to do the firearms course; however he also claimed that he thought he did not have to declare it as it was 20 years ago. This ignores the fact that the question asked if he had ever attempted self harm.
When it came to making the application for a licence a week later, the applicant again failed to disclose the relevant facts, but excused his conduct by claiming that he knew the police would have records of the 1999 incidents and he did not see it as relevant, particularly as the form only asked for details of criminal offences in the past 10 years.
He seems to have placed his own interpretation on what the forms were asking, regardless of what they said and the importance of disclosing all relevant information to the relevant authorities. It is also possible that he did not wish to disclose the 1999 incidents, as he said he was ashamed of them. If that is the reason, it is unfortunate, but the consequence is that he gave misleading answers on two separate occasions and I cannot be satisfied that he simply misread the forms.
As stated by the Senior Member in Kogias, the proper functioning of the firearms legislation depends on applicants providing true and correct information and it is not relevant whether the firearms registry might already have access to information about the applicant or the applicant considers the information sought is irrelevant. The forms are an important component of the scheme to reduce the risk to the public from the possession and use of firearms. Where the applicant has twice failed to disclose information from the authorities which is relevant to safety, it brings into question whether, if he were granted a licence, he would act responsibly in complying with the requirements of his licence and the regulatory scheme. I have considered the character references but while they attest to his good character and stable psychological health, they do not address the misleading declarations.
As stated in s 3(1)(a), the Act is premised on the principle that possession of a firearms licence is a privilege that is conditional on the need to ensure public safety. For the above reasons, I am not satisfied that it is in the public interest for the applicant to be granted a firearms licence and the Commissioner's decision should therefore be 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 March 2021

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Cited By (6)