Ingham v Commissioner of Police

NCAT Administrative and Equal Opportunity|2022-08-09

Solicitors: Office of the General Counsel, NSW Police Force (Respondent) File Number(s): 2022/00104652

Reasons for Decision

This is an application by Kevin Ingham (Mr Ingham) seeking a review of the Notice of Refusal decision dated 1 February 2022 by a delegate of the Commissioner of Police (the Commissioner) to refuse to issue Mr Ingham's Category ABH firearms licence. Mr Ingham applied for an internal review of the decision, but the decision was not reviewed within the 21 day period. For the reasons that follow, the Tribunal determined that the Commissioner's decision should be aside.

Relevant Legislation

Sections 9(1) of the Administrative Decisions Review Act 1997 (ADR Act) and section 75(1)(c) of the Firearms Act confer jurisdiction on the Tribunal to review the decision to refuse to issue Mr Ingham's firearms licence.
Section 63 of the 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 (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(1), relevantly: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety ...
Section 11 of the Firearms Act provides, relevantly: 11 General restrictions on issue of licences (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, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind. .... (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.

Issues

The Commissioner's decision to refuse to issue the firearms licence held by Mr Ingham was based on the finding that he had an ongoing mental health condition and as such it would be contrary to the public interest to issue the firearms licence.
The Tribunal is required to determine whether: 1. It is in the public interest for Mr Ingham to continue to hold a firearms licence; 2. There is reasonable cause to believe that Mr Ingham would pose a risk to public safety if he was to hold a firearms licence because he has a mental health condition.

Evidence

At the hearing Mr Ingham relied on the contents of his statement dated 5 July 2022 and a further report from his treating psychiatrist, Dr Frukacz dated 2 August 2022. Mr Ingham and Dr Frukacz were cross examined by the Commissioner.
Both the Commissioner and Mr Ingham (as to Dr Frukacz's report dated 28 September 2021) relied on documents lodged pursuant to s58 of the ADR Act on 8 August 2022.
Mr Ingham's evidence was that he engages in shooting as both a sport and to assist with pest control on properties owned by his family and friends. He stated that he obtained his first firearms licence in 1977 and that he has been a member of pistol clubs for many years. He states that hunting and shooting is a significant part of his life and most of his close friends share this pursuit. He continues to hold an NSW restricted game hunting licence which permits him to hunt on specified public lands within NSW.
Mr Ingham has operated within the security industry since the 1980s which has involved the use of firearms. In his current work as a correctional officer he may at any time be provided with firearms and ammunition for a number of reasons, such as to provide an armed guard for a prisoner escort, prevent escapes or help control a serious disturbance. He has been in direct conflict with inmates when warning shots had been fired. He is not required to hold a firearms licence for these duties and he continues to fill armed posts. He states that when performing a prisoner escort, he may be required to use a firearm against inmates, or when preventing an escape, or use a firearm against a third party to prevent an attack on an inmate. He may be operating in a crowded hospital or on a public street. The situation may involve hostages or hazardous environments under intense and stressful conditions. He accepts that his actions may lead to the death of another, as with military or police work which includes the risk of lethal force, 'but in no way do I enjoy that prospect'.
As to exercising control over his emotions and state of mind, Mr Ingham gave an example of witnessing a senior manager treat another employee in a manner he characterised as 'victimisation'. This senior manager was the cause of Mr Ingham's medical condition. The senior manager ordered Mr Ingham to take and secure the other employee's firearm. Mr Ingham states that he felt contempt and anger towards the manager due to his mistreatment of his fellow employee, however, he complied with the manager's orders, handled the firearm safely, complied with the relevant policies and procedures and did not act on his feelings.
Mr Ingham's evidence was that the medical condition started in 2016 and that it relates to actions by his employer, specifically by management at his workplace. He sought medical assistance in November 2018 and has been receiving medical assistance from that time onwards. Mr Ingham states that he has fully disclosed this requirement to his medical treating team and there has been no restriction to his duties.
Mr Ingham states that he has regular contact with his medical team, including a general practitioner, a psychologist, and a psychiatrist and that he is fully compliant with all medications and treatment recommendations. He voluntarily attended an intensive inpatient hospital admission to stabilise his medication requirements and determine appropriate treatments. He also voluntarily attended an additional program: 'Skills training in affective and interpersonal regulation', which was an intensive six day program within a hospital environment.
He explained that he is conscious of his medical issues and has decided to scale back some of his potential work, for example, in June 2020, he decided to not renew his bus driver qualification as he felt that his concentration was adversely impacted and it was causing him irritability and frustration.
Dr Frukacz's evidence was that he commenced to treat Mr Ingham in 2019, that he sees him on a regular basis and that the medication has not changed since September 2021. Dr Frukacz states that the medication has been helpful, that Mr Ingham has shown improvement in that his mood has stabilised, his condition has stabilised and he is more able to deal with stress at work.
Dr Frukacz explained that patients with a diagnosis of adjustment disorder do generally show improvements with time as either the stressful circumstances lesson or they develop strategies to deal with stressful circumstances. Dr Frukacz stated that the opinions he expressed in the report dated the 28 September 2021 and 5 August 2022 still hold, especially that there is little, if any, risk that Mr Inghams' adjustment disorder would impact on his ability to exercise continuous or responsible control over firearms, and that the adjustment disorder does not have the potential to put public safety at risk if he were to have possession and use of a firearm. Dr Frukacz is satisfied that Mr Ingham would pose virtually no risk to public safety if he were issued with a firearms licence.
Dr Frukacz's opinion is that Mr Inghams' adjustment disorder does not have the potential to put public safety at risk if he were to have possession and use of a firearm as he has never previously posed such a risk, nor has he ever experienced any suicidal ideations. Dr Frukacz states that he does not identify any risks and is satisfied that Mr Ingham would pose virtually no risk to public safety if he was issued with a firearms licence.
Dr Frukacz and Mr Ingham were cross examined and much more detail and explanation was provided, however the opinions expressed by Dr Frukacz and the statements made by Mr Ingham were not disturbed.

Mr Ingham's submissions

Mr Ingham provided written submissions and supplemented them orally at the hearing. Mr Ingham's submission is that there is no evidence that he poses any kind of risk to public safety. Mr Ingham points to the fact that he is currently employed in a position where he may be required to use a firearm and there have never been any issues raised about safely handing a firearm. He submits that his workplace and his medical team are aware of his medical condition and there has never been a suggestion that he should not have access to a firearm.
He submits that despite his illness, he does not hold any suicidal thoughts or thoughts that would cause concern in regard to public safety.

Submissions by the Commissioner of Police

The Commissioner provided written submissions and supplemented them orally at the hearing. The Commissioner relies on section 11(7) of the Firearms Act and submitted that the issue of the firearm licence to the applicant would be contrary to the public interest on the basis of the ongoing long term serious mental condition.
The Commissioner concluded that because Mr Ingham is a 'work in progress', has not been cured and is susceptible to relapse, he poses a risk and that such uncertainty about Mr Ingham means that it is not in the public interest for him to be granted a firearms licence.
The Commissioner submitted that Dr Frukacz's reports should be treated with caution as Mr Ingham did not disclose to him all matters he gave evidence about and that he may not have disclosed to him honestly the extent of his feelings.

Consideration

The refusal to issue the firearms license was made on the basis of public interest. The Commissioner concluded that Mr Ingham posed a risk to public safety because of his ongoing mental condition.
Section 11(7) of the Firearms Act permits a refusal of a firearm license if it is contrary to public interest. Public interest includes the applicant's safety and the whole of the community. In considering public interest, the objects and scope of the Firearms 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 Firearms 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 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.
The parties relied on the decision in Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 (Ward): 27 One of the objects of the Act, as set out in s 3, 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 Ward is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.
In Webb v Commissioner of Police, NSW Police Service [2004] NSWADT 110 (Webb): 32 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr Webb's licence is reinstated. 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. In particular, the likelihood of risk to the safety of the public must be assessed by reference to Mr Webb's prior conduct. The conduct of concern is that which has lead to his convictions. It is appropriate that any exercise of discretion accord with the principles and objects of the Act.
In Martin v Commissioner of Police, NSW Police Service [2017] NSWADT 97 at [66]: 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.
The parties agree that the decisions in Ward and Webb are apt to this application. In determining the correct and preferable decision the Tribunal must consider whether, based on all the evidence, Mr Ingham would pose a risk to public safety if he was granted a firearm licence.
In Commissioner for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, Young CJ in Eq at [42] was considering the meaning of the word 'risk to the safety of children' in s9(4) of the Child Protection (Prohibited Employment) Act 1998 (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 in considering s3(1)(a) of the Firearms Act.
In this case, Mr Ingham has had access to firearms as part of his employment prior to and following the Commissioner determining to not renew his firearms licence. The unchallenged evidence is that Mr Ingham has not posed any risk to himself or to any member of the public during this period.
Simply because a person has a mental health condition, that person does not pose a risk to the safety of the public. It may be that because of a person's mental health condition there is evidence of circumstance or conduct that demonstrates that they would pose a risk to public safety because they are not of safe mind, however it is not the case that simply because a person has an ongoing mental condition, they pose a risk to the safety of the public.
The Tribunal accepts Dr Frukacz's opinion that Mr Ingham is able to form rational judgements and to exercise will power to control physical acts in accordance with rational judgement.
In EEN v Commissioner of Police, NSW Police Force [2020] NSWCATAD 87 [72] - [75], the Tribunal found that the applicant posed no risk to himself or to the safety of the public. EEN suffered from 'longstanding and treatment resistant Major Depressive Disorder', had a history of alcohol abuse and was admitted to hospital on three occasions with suicidal ideation.
In considering whether there is a real and appreciable risk if Mr Ingham has access to a firearms licence, the Tribunal places significant weight on the evidence of Dr Frukacz who has been treating Mr Ingham for four years, with regular consultations. His oral evidence was carefully given, and his opinion that Mr Ingham has always been at low risk of harm to the safety of public and to himself was maintained under cross examination.
The Tribunal also finds that Mr Ingham handles firearms during his employment with a high standard of care, safely and responsibly. Neither his medical practitioners nor his employer have raised any concerns about his capacity to handle firearms.
There is no evidence before the Tribunal that Mr Ingham would in the future pose a risk to the safety of the public and the Tribunal is not satisfied that it is contrary to the public interest for Mr Ingham to continue to hold a firearms licence. It follows that the correct and preferable decision is to set aside the decision of the Commissioner to refuse to issue Mr Ingham's firearms licence.
The Tribunal makes the following order: 1. The decision of the Commissioner of Police made on 1 February 2022 to refuse to issue the firearms licence held by the applicant is set aside.

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 14 September 2022 - Decision and reasons for decision throughout amended from 'revoke' to 'refusal to issue'. 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: 14 September 2022

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