Joiner v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2022-10-12

The Applicant's evidence

In her statement the Applicant wrote of life events in the years leading up to the incident on 4 August 2019. In 2011 she left an abusive relationship, after which she sought help for anxiety stemming from the relationship and its breakdown. Later that year, her mother had serious medical issues. In August 2018 she was assaulted by a family member. In August 2019 she was selling a house with her brother, assisting Police in their case against her former fiancé who was later convicted of serious child sex offences, her husband was on sick/injury leave after a shoulder reconstruction, she was working 7 days a week, and, she said, her father was threatening to make false allegations about her in a bid to have charges against her former fiancé and the person who had assaulted her dropped.
After the incident in August 2019, she saw consultant psychiatrist, Dr Sharon Hodgson, on 3 occasions between September-October 2019. The Applicant said Dr Hodgson moved her rooms to a less convenient location, but agreed in cross examination that, as well, she did not have a good therapeutic relationship with the doctor. The Applicant wrote that she asked for a referral to a different psychiatrist and Dr Amano was suggested by June Gay, psychologist who she had been seeing for counselling. She said she attended upon Dr Amano from the first available appointment and continues to see him regularly.
The Applicant said she has always been compliant with medication. In cross examination she was asked about an entry in Ms Gay's notes of 16 September 2019 that the Applicant had refused to be medicated. The Applicant said Ms Gay had misrepresented the conversation. She was also referred to Dr Hodgson's notes of 3 October 2019 that she had stopped taking Olanzapine in about mid-September 2019. She said she is compliant with medication prescribed by Dr Amano and her GP.
The Applicant invited attention to things that have happened since the brief psychotic episode, none of which have led, individually or cumulatively to a relapse: she has moved premises for work (including her husband's work) 4 times; she suffered 3 miscarriages; but then a successful pregnancy; and has parented a small baby; her mother was diagnosed with lung cancer; she has successfully managed staff and run her firm through 2.5 years of COVID.

Hornsby Hospital notes

The Applicant was admitted to Hornsby Hospital following the incident. It was recorded that she was in an acute confusional statement and that this was her first psychotic episode. The Applicant was considered to be unwilling to engage; consequently, a history was taken from her husband who reported that the Applicant had experienced a "near similar episode" the previous year when she had been assaulted. She had been prescribed Zoloft by her GP which she had taken for a couple of months and stopped on the GP's instruction. She had also been referred to Ms Gay. Other family stressors were also discussed. The Applicant said in cross examination that she had no reason to believe her husband would give an inaccurate history. He may have told the hospital that she had PTSD and was recorded as part of her history; this does not appear to have been an independent diagnosis made at the hospital.
The Applicant was, in several entries, regarded as being un-cooperative, and only wanting to sleep; she agreed in cross examination that this was the case. Her account of the events immediately leading up to the incident included that she had had almost no sleep in the 2-3 previous days,

Dr Sharon Hodgson, consultant psychiatrist

Dr Hodgson's notes commenced on 14 August 2019, shortly after the incident of 4 August 2019. She took a history of the Applicant's behaviour leading up to the incident, in the days immediately beforehand, including delusional thinking such as hearing voices and believing people were going to kill her; the Applicant was considered to have some hypomanic features. The doctor noted that the Applicant had developed anxiety in 2012 after the breakdown of the abusive relationship, for which she had been treated with Sertraline and she had received counselling from Ms Gay.
In early September 2019 her symptoms were said to be resolving with Olnazapine, which the Applicant had apparently been prescribed when admitted to hospital following the incident. In October 2019 the doctor reported that the Applicant had ceased Olnazapine of her own accord. She considered the Applicant had poor insight into risks of future episodes.

June Gay, psychologist

Ms Gay's notes commence in 2011. She referred in December 2011 to the Applicant having been prescribed Zoloft and Temazepam by her GP. In May 2014 the Applicant's then GP, Dr Elana Roseth wrote to Ms Gay seeking assistance in relation to the Applicant's "moderate depression and anxiety". The Applicant, Ms Gay wrote, had "come requesting a few months off work to "sort herself out''. In February 2015 Ms Gay reported to Dr Roseth that the Applicant's symptoms of anxiety and depression had reduced. In June 2016 however Ms Gay again wrote of the Applicant's anxiety.
In 2018 assistance was sought from Ms Gay in relation to coping with the assault. Ms Gay considered the Applicant suffered mild severe Generalised Anxiety Disorder (GAD), but had improved with counselling. There was no hallucinations, mania or delusions. On 25 July 2018 a Mood Assessment Program (MAP) was administered by the Black Dog Institute and forwarded to Ms Gay, which identified a severe score for GAD and a moderate score for Post-Traumatic Stress Disorder (PTSD).
The Applicant saw Ms Gay in April 2019 and was not scheduled to see her again until October of that year, but with a recommendation to seek further counselling if her anxiety symptoms returned. The Applicant next saw Ms Gay in July 2019, that is, prior to the incident, when the Applicant reportedly described significant stress.
On 23 April 2021, Ms Gay administered a questionnaire purporting to address diagnostic criteria for Obsessive-Compulsive Personality Disorder (OCPD) recorded that the Applicant had met six criteria for OCPD and most symptoms of PTSD when verbally assessed.
Ms Gay's most recent entry is dated 11 January 2022. There the Applicant's mood was described as stable.

Dr Rowena Giard, the Applicant's GP

Dr Giard's notes record on 24 July 2018 the Applicant seeking counselling following the assault. In September 2018 the doctor made a diagnosis of depression/anxiety and prescribed Zoloft, although, subsequent notes record the Applicant ceased within a month due to side effects. In July 2019 she was prescribed Valium for anxiety.
Dr Giard recorded "depression/anxiety" on 9 August 2019, 5 days after the incident. The Applicant said she was not responsible for the file notes, and thought the GP had, effectively grouped the conditions of depression and anxiety together.
Dr Giard recorded that the Applicant may suffer PTSD. The Applicant said though that this was in the context of a claim in relation to motor vehicle accident in September 2020, and they were considering if this should be part of the claim. Ultimately, on advice of her lawyers, the claim was not pursued, the Applicant explained, because her overall symptoms did not persist. In November 2020 she was said to experience panic attacks - she said she was frightened to drive in the rain following the motor vehicle accident (which had occurred in the rain), and had worked through this with Dr Amano, Dr Giard and Ms Gay.

Dr Dhyan Amano, consultant psychiatrist

Dr Amano provided 3 reports: 4 March 2020, 10 June 2020, and 17 February 2022.
He described that the events of August 2019 as a "brief psychotic episode", as distinct from a chronic condition. It was very brief and of sudden onset and lasted only a few hours. The Applicant responded well to medication and treatment and has had no psychotic symptoms since. He said it had been a "traumatic time" for the Applicant prior to the psychotic event.
In a report to Dr Giard dated 8 January 2020 Dr Amano recorded that the Applicant had previously experienced relatively minor anxiety as a result of a 2-year abusive relationship 10 years beforehand. There had never been a psychotic, significant depressive or elevated mood prior to August 2019, nor, for that matter, since.
In cross examination the doctor was asked what information he had before him in coming to his view. He had the discharge summary from Gosford Hospital, and otherwise had taken a history from the Applicant, who he has seen regularly for the last 2 years. He did not have any material from Ms Gay or from Dr Hodgson, nor did he get in touch with them even though the Applicant had told him she had seen Dr Hodgson 3 times after the accident, and that she had seen Ms Gay initially twice per week, then weekly, and by March 2020, fortnightly. Neither did he seek further information from the Applicant's GP, Dr Giand. He said he did not think it was necessary to seek other information; he said he had no reason to doubt the history the Applicant gave him. He does not know if the Applicant is compliant with her medication, but she has told him, and he accepts, that she is.
The doctor said he had been treating the Applicant for mild anxiety but there is now no "mental Illness". The doctor considered that he did not believe the Applicant would do anything improper with a firearm; the longer the time since the episode, the lower the risk. There are no signs of psychosis and the risk is extremely low. He agreed that it impossible to say there is no risk but considered that if she was going to have another psychotic episode, it would have occurred by now, it being "so long" since the episode of August 2019.
The doctor did not believe the Applicant suffers from PTSD; he was satisfied that she said not have the very marked symptoms of PTSD. He was also satisfied there is no diagnosis of bipolar disorder. While the Applicant has experienced periods of low level anxiety over the years it is unclear if she would meet the diagnostic criteria for GAD.
In his evidence he said that he the Applicant is currently well, although is a little anxious with everyday life - she has a newborn and has some work pressures, but in his view, she is handling it all well.

Respondent's contentions before the Tribunal

Before me the Respondent submitted that the Applicant was not a fit and proper person to hold a firearms licence on the basis that there is reasonable cause to believe that the Applicant may not exercise continuous and reasonable control over her firearms because of her being of unsound mind, nor is it in the public interest that she hold a firearms licence.
In the internal review the Respondent also noted that when re-applying for her firearms licence on 28 November 2017, the Applicant had declared in the Personal History section that she had not in the past 12 months been treated for a mental or nervous disorder or illness. Although raised in the internal review, this was not pressed before me.

Is the Applicant a fit and proper person to hold a firearms licence?

The question whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities: per Toohey and Gaudron JJ at 380.
In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she "is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails." In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.

Does the Tribunal have "reasonable cause to believe" that the Applicant is of "unsound mind"?

The term "reasonable cause to believe" in this context was considered by this Tribunal's predecessor in LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41]-[43]. The Tribunal held that the Commissioner, and hence the Tribunal on review, must objectively be satisfied, from established facts, of the matters set out in s 11(4) of the Act, that is, in these circumstances, whether the Applicant's way or living or domestic circumstances are such that she may not personally exercise continuous and responsible control over her firearms because she is "of unsound mind".
While the term "unsound mind" is not defined in the Act, in Cross v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 26 (Cross) Professor Walker SM explained the meaning of the phrase in the context of s 11(4)(c) of the Act, applying Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 185 at [22]: 22 In interpreting the phrase "unsound mind" the ordinary grammatical meaning of the phrase must be applied. "Unsound" is defined in the Macquarie Dictionary, 3rd edition, The Macquarie Library, as "not sound; diseased, as the body or mind."
Recently, in Probst v Commissioner of Police [2022] NSWCATAD 245 (Probst) at [97] the Tribunal discussed that while the term "unsound mind" is not defined in the Act, it is a phrase that must be interpreted in the context of the Act's purposes; namely, to ensure firearm licensing does not interfere with public safety. The Applicant's representative suggested I should be guided by the meaning attributed to the phrase elsewhere eg in the Mental Health Act, and historically, but my view the approach in Cross and Probst is correct.
The Respondent submitted that the concerns that arise from the episode of August 2019 are not isolated. In particular, the Respondent referred to the notes from Hornsby Hospital on admission following the Applicant's arrest, that the Applicant's husband had reported that she had a near similar psychotic episode in the previous year following the assault. That remark may have been hyperbolic as it was not borne out by the notes of Dr Giard or Ms Gay who were treating the Applicant at the time for assistance in relation to coping with the assault. Ms Gay considered the Applicant suffered mild severe GAD, but had improved with counselling. Importantly, Ms Gay recorded that the Applicant did not suffer hallucinations, mania or delusions, which is in contrast to what occurred prior to the incident. I am satisfied that the Applicant had not previously experienced a psychotic event before August 2019.
The Respondent also relied on other aspects of the Applicant's history of other possible mental health diagnoses and that she received mental health treatment over a long period.
The Respondent referred to the MAP conducted in July 2018, which identified a severe score for GAD and a moderate score for PTSD. While MAP is a diagnostic tool, in the absence of a diagnosis of PTSD by a psychiatrist or clinical psychologist, I reject the contention that the Applicant also suffers PTSD. I observe that Dr Amano, her treating psychiatrist considered that she did not suffer the "very marked symptoms" of PTSD.
In relation to GAD, Dr Amano does not make a diagnosis of that condition. While in 2018 Ms Gay recorded that the Applicant had reported mild severe GAD. This is not a diagnosis by a psychiatrist or a clinical psychologist of GAD.
I observe that in several entries Dr Giard noted that the Applicant "has been treated with depression and anxiety ". I accept that the Applicant may have had episodes of being depressed but not sufficient to attract a clinical diagnosis of Depression. Her treating psychiatrist makes no diagnosis of Depression.
While both Ms Gay and the Applicant's previous psychiatrist, Dr Hodgson raised concerns that the Applicant could have an underlying bipolar disorder, no diagnosis has been made of the condition and Dr Amano specifically rejected any contention that she may suffer from that condition.
After seeing Ms Gay in April 2019 the Applicant was not scheduled to see her again until October of that year, but with a recommendation to seek further counselling if her anxiety symptoms returned. In seeing Ms Gay again in July 2019, that is, prior to the incident, the Applicant, sought assistance from Ms Gay and I accept she was under stress at that time, in relation to the matters she had outlined.
The Respondent pointed to an injury management consultation report prepared by Dr Andrew Keller on 21 July 2021, wherein it was noted that Dr Giard had described that the Applicant was experiencing "psychological" restrictions relating to her work and that Dr Keller also noted that, after discussion with Dr Giard, "Ms Joiner has a pre-existing psychiatric condition". Consistently, on 23 August 2021, Dr Giard completed a Certificate of Capacity relating to the Applicant's insurance claim, in which she noted that "she has a history of anxiety and depression which was exacerbated by the motor vehicle accident". As discussed above, this "diagnosis" was not made by a psychiatrist or clinical psychologist.
I accept that the medical evidence demonstrates that the Applicant has received counselling and been medicated since 2011 when she first, on referral from her GP, became a patient of Ms Gay. In 2014, Ms Gay considered she had moderate depression and anxiety when the Applicant was seeking a few months off work to "sort herself out''. This occurred and she successfully returned to work.
I accept the general contention that the Applicant experienced multiple stressors for which she sought psychological assistance in the years prior to the psychotic event of August 2019. I also accept that the Applicant has a history of mental health issues dating back several years. For the most part these have been well managed with treatment and medication, and she receives ongoing psychiatric care from Dr Amano.
When sectioned under the Mental Health Act in August 2019, the psychologist registrar recorded the Applicant as having "poor insight, impaired judgment". In the weeks following her psychotic incident, Dr Hodgson described her as having "poor insight into future risks". In contrast, the Applicant's evidence was that she immediately took steps to divest herself of her practice, which suggests a significant insight into her condition at that time. In a letter to Dr Giard, Ms Gay wrote in September 2019 that she was concerned about the Applicant's ability to pace herself long-term and that she had a tendency to make grandiose plans and push herself beyond her mental limits. In April 2021, Ms Gay notes that the Applicant "has a pattern or high pressure leading to high distress", would, in my view, be consistent with the pressures associated with her subsequent resumption of her work.
The Applicant particularly relied on the evidence of her treating psychiatrist, Dr Amano. Dr Amano first started treating the Applicant in November 2020, over a year after her psychotic incident, and that he had limited information about the incident other than what he had been told by the Applicant. While the doctor reported that the Applicant had suffered the "brief psychotic episode" had lasted only a few hours, the Applicant was experiencing some delusions in the days prior to the incident. Ms Gay noted in a report to Dr Giard dated 17 September 2019 that the Applicant's husband had told her that in the fortnight leading up to event he had noticed the Applicant's erratic thoughts, increasing irritability, high interpersonal sensitivity and argumentativeness. Having said that, I accept that those experiences culminated in the Applicant's bizarre conduct of 4 August 2019. Dr Amano was aware that the Applicant had previously experienced anxiety as a result of her previous abusive relationship, however, there had never been a psychotic, significant depressive or elevated mood prior to August 2019.
I accept that Dr Amano is treating the Applicant for ongoing mild anxiety and that, in his view, there is now no psychosis. He acknowledged that the Applicant has experienced periods of low level anxiety over the years. He considered, presently, there is no "mental illness" at all. I found the doctor's observation that the longer the time since the psychotic episode, the lower the risk of a re-occurrence and that if the Applicant was going to have another psychotic episode, it would have occurred by now, to be helpful. Importantly, although the Applicant has everyday stressors, such as having a very young child and some work pressures, in the doctor's view she is handling it all well. I found the evidence of Dr Amano persuasive and reject the criticism of the Respondent of his evidence.
For these reasons, In relation to the ground under s 11(4)(c) I find that there is no reasonable cause to believe that the Applicant might not exercise continuous and responsible control over firearms because of intemperate habits or being of unsound mind.

Public interest

The Respondent also contended that it is not in the public interest for the Applicant to hold a firearms licence: s 24(2)(d) of the Act and Clause 20 of the Regulation. The term is not expressly defined in the Act or Regulation. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the "public interest" is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual.
The discretion to make a decision in the public interest is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23]. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. The question of risk is not to be 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: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
The Applicant's "genuine reason" for a firearms licence, according to her application, was for "recreational hunting/vermin control". Private interests, however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. As I have observed many times, these matters include 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 at [33].
The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. It is well established that the likelihood of public safety risks is to be assessed by reference to an applicant's prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41]. Past conduct of the Applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].
From the available evidence, the Applicant has had, since 2011, a series of unfortunate life stressors which have caused her distress. Her most significant reaction to stress occurred in her egregious conduct in August 2019. I accept that she has never resorted to use of her firearms in times of stress.
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 that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be taken into account. It is clear that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant's interest in holding a firearms licence.
I accept that the Applicant has no criminal record, and is a successful businesswoman and mother, and is presently coping well. I have found that there is no reasonable cause to believe that she might not exercise continuous and responsible control over firearms because of being of unsound mind.
In relation to the public interest ground, I observe that the Applicant now enjoys stable domestic circumstances and her mental state is presently well-managed, including with medication. I consider though, notwithstanding the relative confidence of her treating psychiatrist, that insufficient time has elapsed to enable me to be confident that there is no risk of a relapse into behaviour that might jeopardize public safety, given her long history of mental health issues. In coming to this view, I note that her behaviour culminating in the events of 4 August 2019 was so bizarre that more time without reports of further instances of irrational behaviour, and without symptoms of anxiety, would be needed, in my view, before a decision favourable to her would be warranted.
I therefore find that it is not presently in the public interest for the Applicant to hold a firearms licence and the decision under review must be affirmed.

DECISION

The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 October 2022

Tribunal's approach

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. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 38(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. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].

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