Firearms Regulation 2006, 2017.
Mental Health Act 2007
Cases Cited: AML v Commissioner of Police, New South Wales Police Force (CoP) [2013] NSWADT 5
Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013
Source
Original judgment source is linked above.
Catchwords
Civil and Administrative Tribunal Act 2013Firearms Act 1996Firearms Regulation 2006, 2017.
Mental Health Act 2007
Cases Cited: AML v Commissioner of Police, New South Wales Police Force (CoP) [2013] NSWADT 5Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013Brosowski v CoP [2003] NSWADT 182Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657Constantin v CoP [2013] NSWADTAP 16CoP v Toleafoa [1999] NSWADTAP 16Cusumano v CoP [2001] NSWADT 50Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh [1953] SC 34Director of Public Prosecutions v Smith [1991] Vic Rep 6, (1991) 1 VR 63Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Hoffman v CoP [2003] NSWADT 89Kavalieratos v CoP [2014] NSWCATAD 117Martin v CoP [2017] NSWCATAD 110McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 358Nakad v CoP [2014] NSWCATAP 10Neat Holdings Pty Ltd vKarajan Holdings Pty Ltd [1992] HCA 66, (1992) 110 ALR 449
New South Wales v Taylor [2001] HCA 15
O'Sullivan v Farrer [1989] HCA 61, (1989) 168 CLR 210
The applicant Mr Graham Paul Laing on 18 January 2017 applied at this Tribunal's Newcastle registry for review of a decision by a delegate of the respondent dated 19 December 2016 to affirm a decision dated 5 July 2016 to revoke the applicant's category AB firearms licence No. 406155283. He had been issued with the licence on 7 August 2013 and it had been due to expire on 7 August 2018.
Mr Laing is aged 43 years and has no criminal history or other adverse criminal notice. Under the previous firearms legislation, he held a licence for approximately 10 years, five years of that being as a minor. On 29 September 1996 he allegedly threatened suicide after an argument with his parents. He had removed a rifle from a locker, obtained ammunition and driven off. Police later found him and took him to hospital, where he was admitted and received treatment. His shooter licence was suspended, but later reinstated on 22 January 1997, following receipt of a letter from a psychiatry registrar at James Fletcher Hospital Shortland Clinic and Community Mental Health Services, Dr Ann Harrison, dated 6 October 1996 (exhibit R1, p 14).
He has held a licence under the current legislation for over 18 years for the purposes of target shooting and recreational hunting/vermin control. Police inspected his firearms safe keeping arrangements on 20 February 2004 and found them to be compliant with the prescribed standards.
Among some documents which the respondent obtained on summons in these proceedings was a report dated 26 May 2016 by Dr Graham Vickery (part exhibit R2) which stated that on 1 December 2015 the applicant took six Endone tablets in an attempt at suicide. The report quotes the applicant as saying, "I just felt broken and what a failure I was and late that night I took an overdose". He was found by his wife and subsequently taken to Maitland Hospital. Following psychiatric assessment, he was released the following afternoon. The Maitland Emergency Discharge Referral dated 2 December 2015 signed by Dr Emma Presem, also obtained through the summons (part exhibit R2), stated that the applicant "denied any suicidal plans or intent prior to taking the tablets - states that this was a spontaneous decision and he stopped because of his wife and kids. No suicidal thoughts at present and feels very remorseful and silly about what he did". As the documents required on summons were not produced until 1 September 2017, the respondent had been unaware of the incident when making the decision under review.
On 8 February 2016, police received a report from a third party (his wife's work supervisor) that raised concerns for his mental health. It was reported that his wife was at work when she received a call from him after the sheriff had attended at their house. It was also reported that she then received a text message stating that he had found the keys to the gun cabinet and that he had sent her a poem that he had previously linked to his suicidal thoughts. Police attended at the property and established that the applicant's wife had both sets of safe keys in her possession and they accounted for all of his firearms. They searched the property and found the applicant under a tree to which he had attached a rope noose over an overhead branch.
Police reported that he told them, "I was going to kill myself if youse [sic] didn't turn up", and that he felt that way because "I look like losing my job and there is nothing to live for". He was scheduled by police pursuant to s 22 of the Mental Health Act 2007 and his firearms licence was suspended. It was decided on 5 July 2016 to revoke his firearms licence as he had not provided the Firearms Registry with the mental health report they had requested, within the stipulated timeframe.
The respondent maintains that the applicant has still not provided a comprehensive mental health assessment from a registered psychologist or psychiatrist demonstrating full knowledge of his history, including all hospitalizations resulting from attempts at self-harm. The respondent has informed the applicant that he could reconsider his position if the applicant were able to obtain a comprehensive mental health assessment satisfying the risk assessment criteria that the Commissioner had provided to the applicant. In the meantime, however, the respondent's stance is that it is not in the public interest for the applicant to hold a firearms licence.
[3]
Applicable legislation
Section 11(4) of the Firearms Act provides as follows:
(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.
Section 24(2) deals with licence revocation:
(2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or
(d) for any other reason prescribed by the regulations.
Clause 19 of the Firearms Regulation 2006 (now cl 20 of the Firearms Regulation 2017) provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
The issue in this application is thus whether, in light of ss 11(4) and 24(2), and of cl 19, the correct and preferable decision is to affirm the decision under review.
[4]
The evidence
The basic facts of the case are not in dispute. The respondent called no oral evidence but relied on the s 58 documents (exhibit R1) and the medical records produced on summons (exhibit R2).
The applicant did not give oral evidence but tendered a bundle of documents (exhibit A1) that included a statutory declaration dated 15 August 2017 which, in addition to setting out his version of events, also adopted as true the other written material with which he had supplied the respondent. The first item is a letter addressed to NCAT which states inter alia that on 29 September 1996 when he threatened suicide, it was with the intention of frightening his parents into quitting smoking. Their family doctor had told him that he had to get them to give up cigarettes, as he had tried unsuccessfully. He said it would kill them sooner rather than later. He had not mentioned that event to Dr Peter Tyron because he had not thought it would be held against him.
That night, after an argument with his parents, he had removed a .30/30 from the lightly-built locker that they used as a gun cabinet. He had known where the keys were, but it was easier simply to pull the door open. He took ammunition, but it was for a different calibre of rifle. The rifle was in a gun case, wrapped in a blanket under the back seat of the car, safely stored away. The ammunition (for a .243, he later explained) was under the carpet in the front. The police could not find it and had to ask where it was.
He knew that what he had done was very wrong but his intentions were made quite clear by the fact that he took ammunition for a different calibre of gun with him. Everything was done safely and responsibly. It was a last-ditch effort to persuade his parents to stop smoking. In the event both his parents died of lung complications or lung cancer or both.
The incident on 8 February 2016 arose as he had been bullied at work and had been suspended from his duties without pay. When the sheriff came to their house to repossess their caravan, he had thought that his employers had won. He telephoned his wife several times and sent her a message on Facebook. At no time did he send her a text message saying anything about guns or gun safe keys. In fact he knew where the keys were at that time but would never have used his firearms for any purpose other than hunting or target shooting. The telephone call police had received from the third party (his wife's boss) had defamed him and ruined any chance of teaching his children the correct and responsible ways of handling firearms.
[5]
Applicant's submissions
As commonly happens when applicants are unrepresented, the applicant's submissions were intermixed with his evidence. His submissions may, however, fairly be extracted and summarized as follows.
Mr Laing submitted that the police reports had been incorrect on two occasions. In relation to the 1996 incident, they had not mentioned that the locker he had forcibly opened was not a gun safe but a light aluminium locker that could easily be opened by pulling the handle (exhibit R1, p 6). Nor did they mention that the ammunition he took was for a .243, not a 30/30, and that he had taken it only because he knew his parents would not be convinced that he seriously meant self-harm unless they saw ammunition. It was in a box and at a quick glance it might not be obvious that it was the wrong calibre. He did not recall whether he had told the police that it was for the wrong calibre, but at all events they had not followed the matter up. It was not a suicide attempt and his guns were secured at all times.
The December 2015 incident was not referred to in the documents, but he had told Dr Jones about it and about the bullying to which he was exposed at work. He did take the Endone pills, but the way he had represented the event made it look worse. It happened between 6 and 8 PM, but as his wife took him to hospital only the next day, it was obviously not an urgent matter. He did not consider it a suicide attempt either.
At the time of the 8 February 2016 episode, he was indeed thinking about suicide. It was the only time he had really considered it. Would he have done it? He did say he would have. The police had wrongly said he was sitting on a quad bike, but he was actually standing next to a 4-wheeler with a tray. He did not threaten to use a firearm. Mrs Laing in her letter to the Commissioner received on 3 August 2016 (exhibit R1, pp 46-47) had emphasized that he did not mention firearms, but spoke of "finding the tallest tree". It had been her work supervisor who had panicked and informed the police, saying that he was planning to use a firearm.
As regards his prior conduct, he had been around guns for a long time and had no gun offences. His only contraventions were two speeding tickets. His loss of his licence also affected his wife's ability to keep firearms. He had been under a great deal of pressure at work, but now his financial pressure had eased and he had been able to reduce his medication. He would be in a position to afford a psychiatric appraisal, but was rather reluctant to do so because of the high cost. He had indicated to Dr Tyron his dissatisfaction with the report the latter had produced.
[6]
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, that 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 on it by the Civil and Administrative Tribunal Act 2013 (No. 2) (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). 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(5A) further provides that a licence must not be issued if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that (a) the person is a risk to public safety and (b) the issuing of the licence would be contrary to the public interest. The Commissioner may also refuse to issue a licence if the Commissioner considers the issue of the licence would be contrary to the public interest: s 11(7).
Section 24(2)(a) provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind, while s 24(2)(d) provides that a licence may be revoked for any other reason prescribed by the regulations. Clause 19(a) of the Firearms Regulation 2006 (now cl 20 of the Firearms Regulation 2017) provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
[7]
Public interest
The respondent did not submit that the applicant was not a fit and proper person to hold a firearms licence. His general ground for revoking the applicant's license was that it was not in the public interest for the applicant to continue to hold it, within the meaning of ss 11(7) and 24(2)(e) and cl 19. The phrase "public interest" is not defined in the Firearms Act.
In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:
[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said:
The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They 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, [33].
[8]
The "reasonable cause to believe" grounds
The other two grounds relied on by the respondent apply if the Commissioner "has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms" because of any previous suicide attempt (s 11(4)(b) or because of the applicant's "being of unsound mind" (s 11(4)(c)).
Emmett J considered the meaning of "reasonable cause to believe" in Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013. His Honour said that the words "are not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant [in that case, an applicant for preliminary discovery] to show objectively that there is reasonable cause for the relevant belief. It is not necessary to demonstrate whether or not the applicant has the belief" (at [10]).
As Hennessy DP pointed out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [22], "Not every suicide attempt will justify the revocation of the person's firearms licence. The Tribunal must assess the likelihood that [the applicant] will attempt suicide or self-harm again and, if that happens, the likelihood that a firearm will be used. There is no suggestion that [the applicant] would attempt to harm others".
Her Honour concluded that the applicant's previous attempt did not give rise to reasonable cause to believe that the applicant would not personally exercise continuous and responsible control over firearms. The test, in context, was an objective one (State of New South Wales v Taylor [2001] HCA 15, [10]), her Honour said, setting aside the revocation of the applicant's license.
While the term "unsound mind" is not defined in the Act, the tribunal explained the meaning of the phrase in the context of applying s 11(4)(c) of the Act in Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 185:
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."
23 In Herbohn v NZI Life Ltd [1998] QSC 122 (12 June 1998) WC Lee J gives a useful exposition of the meaning of "unsound mind." His Honour said that:
Mayo J. in Pointon v. Walkley [1951] S.A.S.R. 121 at 125, when concerned with the meaning of "unsound mind" for the purposes of a limitation statute . . . said:-
"Sound'. `Sound', when used in connection with body or mind, denotes the presence of perfect health or, putting it another way, the absence of all defects other than those that are trivial. A sound person is one without the sign of disease, malady or unhealthy abnormality.
When seeking to ascertain the meaning of the words "unsound mind" in a statute, they must be construed in relation to the subject matter with which the statute is dealing and their place within it: Kirby v. Leather [1965] 2 Q.B. 367 per Lord Denning M.R. at 383 where the Master of the Rolls said that for the purposes of that statute, a person is of unsound mind if he is incapable of managing his affairs as a reasonable man would do; King v. Coupland. So also with the expression "mental condition" which, according to Slattery J. in Kotulski v. Attard (1981) 1 N.S.W.L.R. 115 at 118 was "meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise will power to control physical acts in accordance with rational judgment".
[9]
Suicide attempts
The Federal Court explained in Austrac that "reasonable cause to believe" requires, not mere assertion or conjecture, but objective grounds for the belief. In relation to the attempted suicide ground in s 11(4)(b), AML establishes that not every suicide attempt will justify licence revocation. It is necessary to assess the likelihood of future self-harm, and if that happens, the likelihood that a firearm will be used.
In the present case the respondent relies on three incidents, the first being the September 1996 event. The applicant has maintained from the outset that he was not contemplating suicide but had staged the incident in order to shock his parents into giving up smoking. The fact that he took with him the wrong ammunition for the rifle he was carrying corroborated that. The respondent argued that even if there had been no real suicidal intent, he did make use of a firearm and did say that he that he was going to kill himself. Even in the absence of intent, he was misusing a firearm. The evidence favours the conclusion that this was not a real suicide attempt, however, and I so find.
The second incident relied on was his December 2015 overdosing on Endone. He was found by his wife and later taken to hospital for psychiatric evaluation. The respondent had not previously been aware of that event, which came to his notice only from the material produced by Dr Jones on summons. The applicant agreed that it had not previously been referred to in the documents, but said he had told Dr Jones about it and that it stemmed from bullying at work.
Mr Laing said he did not consider the incident to be a suicide attempt, but that assertion is contradicted by his email to Dr Jones dated 7 March 2016 (part exhibit R2) in which he wrote, "I was feeling useless and felt that I was a burden on the people around me. I started taking Endone tablets to try and end my life. My wife caught me halfway through and stopped me". He also claimed that the fact that his wife had not taken him to hospital until the next day showed that it was not a matter of urgency. In his statement of 5 April 2016 (part exhibit R2), however, he stated that "My wife caught me as I was taking the medication and stopped me…. Fiona took me to the psychiatric ward at Maitland Hospital and I was assessed that night and into the next day".
The third incident relied on by the respondent occurred on 8 February 2016, when police attended at his property and found him under a tree to which he had attached a noose. Police reported that he had said "I was going to kill myself if youse didn't turn up", and that he felt that way because "I look like losing my job and there is nothing to live for".
[10]
"Unsound mind"
From the discussion of Sweet, above, one can derive the proposition that for civil law purposes a person is of unsound mind if, on an objective view of the evidence, one is led to the conclusion that he or she is "incapable of managing his affairs as a reasonable man would do". That formulation sets a rather high bar, as one would expect in the interpretation of that rather portentous phrase. It suggests a mental condition causing a far-reaching degree of practical incapacitation.
The applicant in this case has a history of psychiatric symptoms and treatment, as outlined above, extending back to approximately 1996. He has been under medication for recurrent depression as well as anxiety and adjustment disorder. He has made two relatively recent attempts at suicide.
As against that, Mr Tryon's report concludes that he is currently able to form rational judgments and to exercise willpower to control physical acts in accordance with rational judgment. He said he was not aware that the applicant had ever previously demonstrated an inability in that regard. He posed no threat to any member of the public and had no potential to put public safety at threat, nor did he pose any threat to himself. He is a family man in a stable relationship, has the full support of his wife and family and is supporting both of his two children.
I concluded above that the shortcomings in Mr Tryon's report meant that it carried insufficient weight to offset the evidentiary effects of the two suicide attempts in the context of s 11(4)(b). That does not mean, though, that it should be disregarded entirely. In the context of the more stringent and comprehensive connotations of s 11(4)(c), it casts some doubt on the extent to which Mr Laing's mental problems currently make him incapable of managing his affairs in a rational manner in the context of control over firearms. An up-to-date and thoroughgoing mental health evaluation could lead to a different conclusion, but the evidence as it stands does not provide reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of being of unsound mind, and I so find.
[11]
Not in the public interest
Section 11(7) of the Act empowers the Commissioner to refuse to issue a licence if the Commissioner considers that the issue of the licence would be contrary to the public interest. In that regard, s 24(2)(a) gives the Commissioner a discretion to revoke a licence in circumstances where he would be required to refuse an application for a licence made by the applicant. Similarly, s 24(2)(d) provides that a licence may be revoked for any other reason prescribed by the Regulation; cl 19 provides that the Commissioner may revoke a licence if satisfied that it is not in the public interest for the licensee to continue to hold it.
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. In an often-quoted passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [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. That was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23].
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML in 2013 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because Her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" (at [7]) .
[12]
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
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: 30 October 2017
Parties
Applicant/Plaintiff:
Laing
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
He had answered all the questions put by Mr Tryon, who knew about his depression and the breakdown he had suffered when his mother had died, and also about how Dr Peter Jones had declined to write a report to help him qualify for an invalid pension because he was coming along well and improving all the time. He had not mentioned the September 1996 incident because he did not think it had been recorded on his file and that it would be held against him in that way. He was unaware of the seriousness of what the police had on record, as his licence, firearms and security licence had been restored shortly after. He also told Mr Tryon that by the time the police had arrived [presumably in connection with the February 2016 episode], he had made up his mind that suicide was not the answer to the setback in life he was going through. He had told him he was glad it had happened, because it made him realize how much his family needed him and how important he was in the upbringing of his children. Suicide was not the answer.
In the statutory declaration he further stated that on 8 February 2016 he had not threatened his life with a firearm or done anything illegal with any firearms. He was undergoing problems with his employer and the family was in financial trouble. He thought he was insured if he took his own life in order to benefit them. At no stage was any member of the public in danger from his actions or from any of his later actions. He was wrong and realized that he needed to be with his family. Threatening his life will never happen again.
Since the NCAT hearing on 18 July 2017, his circumstances had changed considerably. His court case for his employment dispute had been held and he was awarded approximately 10 months' pay. That would ease any financial problems that the family has. He had not committed any crime, though what he did was poor judgment on his part. At no time (even in 1996 when he took a 30/30 and some .243 ammunition, all of which was concealed in his car) had he made improper use of a firearm. The fact that the rifle and the ammunition were of different calibres was not mentioned in the police reports though in itself it would have changed the whole tenor of the report. In February 2016 he had not threatened his life with a firearm, nor was he found on a quad bike [he later said that it was "a four-wheeler with a tray"]. It was not correct to say that his wife had telephoned the police and told them he had threatened his life with a firearm.
The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. There is, however, no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]. The civil standard applies even if the conduct in question may be criminal (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449).
Unsound' is the antithesis of
As Mr Laing has quite a lengthy history of psychological and psychiatric treatment and reports, it is useful to list its main stages in chronological order, an exercise which is relevant to both of the "reasonable cause to believe" grounds. The main points are as follow:
Dr Ann Harrison, psychiatry registrar at James Fletcher Hospital mental health clinic, wrote a report dated 6 October 1996 about the applicant's threatened suicide on 30 September 1996, in connection with his application for restoration of his shooter's licence. She noted inter alia that "He denied suicidality or homicidality. He has no history of violence, there was no sign of psychosis or delirium" (exhibit R1, p 14)
Dr Hinton, a psychiatrist, in 2013 treated him for major depressive disorder and prescribed antidepressants medication for his ongoing anxiety and depression following the death of his mother and his involvement in settling her estate (referred to in Dr Vickery's report, part exhibit R2, p3).
The applicant's treating psychiatrist, Dr Peter Jones, wrote on 27 October 2014, "Overall, I feel that he did suffer with an episode of Major Depression in 2013 and he is currently presenting with increasing depressive symptoms in the context of work and home stress. It is likely that this is an Adjustment Disorder". Dr Jones's practice, the Lawson Clinic, informed the applicant's solicitors on 12 October 2016 that Dr Jones does not write medico-legal reports.
In late 2014 and early 2015 the applicant had psychological counselling with Dr Pat Cleary and Linda Thomas in connection with his anxiety and depressed mood (Vickery, p 4).
On 2 December 2015, Dr Emma Presem, resident medical officer at Maitland Hospital, sent the applicant's general practitioner, Dr Harshul Parikh, a report and referral following his discharge from hospital after having attempted to overdose on Endone tablets. She reported inter alia that he "Denied any suicidal plans or intent prior to taking the tablets - states this was a spontaneous decision and he stopped because of his wife and kids. No suicidal thoughts at present and feels very remorseful and silly about what he did" (part exhibit R2).
In January 2016, Occupational Health and Safety referred the applicant to an independent psychiatrist, Dr Mary McGinty, being of the opinion that he was "over-sedated" and that it would be dangerous for him to work. Dr McGinty's report dated 27 January 2016 is not before the tribunal, but apparently it included the statement, "equally concerning is his as yet failure to organise the mental health follow-up prescribed during his hospital admission" (id. p 11), as well as recording that he reported having been dismissed from a couple of previous positions for interpersonal conflict. He left at least one employer as he was unhappy with the way he was treated (Vickery, p 16).
On 10 February 2016 the respondent wrote to the applicant stating that in view of his previous attempts or threatened attempts at suicide, evaluation of his ability to hold a firearms licence required him to provide a medical assessment for that purpose. Enclosed were a medical report authorization form and 9-part risk assessment questionnaire addressed to the psychiatrist or psychologist, seeking relevant information.
On 26 May 2016, Dr Graham Vickery, psychiatrist, delivered a comprehensive 17-page history and report in connection with the applicant's workers' compensation claim. Dr Vickery found that he satisfied the criteria for an acute adjustment disorder with anxiety and depressed mood, but thought that the applicant's employment was not a substantial contributing factor to the adjustment disorder or his pre-existing major depressive disorder - recurrent.
In response to the Commissioner's 10 February 2016 request for a medical assessment, Mr Peter Tryon, psychologist, wrote a report on 15 September 2016 (incorrectly dated 2015). It referred to the event of 9 February 2016, but did not mention the 1996 or December 2015 incidents. The 1½ page letter concluded that Mr Laing "is currently able to form rational judgments and to exercise willpower to control physical acts in accordance with rational judgment [emphasis in the original] …. Mr Lang [sic] poses no threat to any member of the public and has no potential to put public safety at threat. Included in this is my judgment that he does not pose any threat to himself. He is a family man, in a stable relationship and is supporting both of his 2 children". Mr Tryon was not the applicant's usual treating psychologist.
The applicant contended that the police report (exhibit R1, pp 10 ff) was inaccurate and that he had not told his wife at work that he was planning to shoot himself, but rather that he was intending to use a rope. The respondent accepted that the reference to shooting resulted from a misunderstanding on the part of Mrs Laing's supervisor, but countered that it was irrelevant whether the attempt involved a gun or not.
The applicant also said that the report wrongly recorded that he was found with a "quad bike", whereas in fact he had taken a "four-wheeler with a tray". In his statement of 5 April 2016, however, he said "I then hung up the phone and got on the quad bike and went up the back with a rope and a bottle of Wild Turkey. I put the rope up in a tree".
He did not admit (although he does not appear to have explicitly denied) telling police he had been going to kill himself if they had not arrived and that he had nothing to live for. In his email to Dr Jones of 7 March 2016, he wrote that by the time the police arrived, "I had realised that my kids and my wife need me in their lives. I had made up my mind that I was not going through with suicide now or ever". In view of his contradictory statements about the second and third episodes, however, the police report of the 2 February 2016 incident is more likely to be correct. I therefore find that the episode was an actual suicide attempt.
Section 11(4)(b) requires the tribunal to predict the applicant's future conduct as regards personally exercising continuous and responsible control over firearms, in light of any previous attempt at self-harm. Such provisions are to be applied by reference to the applicant's prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182, [41]. Indeed, the provision itself implicitly recognizes that a prior attempt can be an indication of possible future action of the same kind that might compromise the applicant's exercise of continuous and responsible control over firearms.
In AML the tribunal pointed out that not every attempt at suicide is enough to warrant licence revocation. In that case there had been an attempt, but psychiatric and psychological evidence showed a substantial improvement in the applicant's mental condition that made it unlikely there would be any repetition. Hennessy DP also said, "I also accept that it is highly unlikely that, if AML did attempt suicide or self-harm, he would use a firearm. AML has an unblemished history in relation to the possession and use of firearms and he did not contemplate using a firearm previously": at [24].
In this case there have been two relatively recent attempts, only two months apart, one in December 2015 and the other in February 2016. Further, one could not say that the applicant's firearms history is unblemished. While the 1996 incident was not a suicide attempt and did not threaten injury to any other person, it did involve improper use of a firearm. On the other hand, it occurred 21 years ago, when the applicant was 22, under the more latitudinarian pre-1996 firearms legislation, and there have been no similar incidents since.
Further, the applicant's two suicide attempts did not involve the use of firearms. That fact, the respondent submitted, was irrelevant. But AML treats the likelihood that any future attempt would make use of firearms as a relevant consideration. Presumably that is because the subsection is concerned with the applicant's ability personally to exercise continuous and responsible control over firearms. The legislation thus appears to some extent to leave the general prevention of suicide to the mental health system. Consequently, while any risk of self-harm must be regarded as affecting a licensee's ability to exercise continuous and responsible control over firearms, the improbability of firearm use in any future attempt, should one occur, tends to weigh in favour of the applicant's case
In AML, however, the tribunal had the benefit of psychiatric and psychological evidence showing that the applicant's mental health had progressed markedly and that it was unlikely that he would again attempt suicide. In the present case the only recent psychiatric or psychological evidence relevant to the Firearms Act is Mr Peter Tryon's letter of 15 September 2016. That report was submitted in response to the respondent's request dated 10 February 2016 (and repeated on 11 July 2016) for a report on the applicant's current mental condition, and which included a risk assessment questionnaire addressed to the practitioner. It posed nine specific questions, including in relation to the length of treatment, diagnosis, effect on fitness to possess and use firearms, medication and whether the applicant had ever deviated from it, ability to form a rational judgment and control physical acts and possibility of relapse. Importantly, it specifically asked whether the applicant's condition would impact on his ability to exercise continuous or responsible control over firearms, or any history that the condition had affected his ability in the past.
The psychologist had been sent that questionnaire before writing his report. Nevertheless, his letter did not deal with some important matters mentioned in the questionnaire. It made no reference to the December 2015 suicide attempt or to the 1996 incident and contained insufficient detail and reasoning to support the opinions expressed. In particular, it did not respond to the risk assessment criteria that the Commissioner had provided, notably whether the applicant's condition could impact on his ability to exercise continuous or responsible control over firearms, any history of such impairment and the possibility of relapse. It is possible that Mr Tryon thought that his letter implicitly answered those questions, but in light of the applicant's having made two relatively recent suicide attempts two months apart, it provided an insufficient basis for concluding that the applicant could personally exercise the requisite continuous and responsible control.
The tribunal held in Potts v Commissioner of Police, New South Wales Police Service [2010] NSWADT 311, [44] - [51] that an expert medical opinion should be given no weight where it fails to set out sufficient details and reasoning to support the opinion expressed, to provide the criteria (such as those in the DSM-IV or V) applied to reach its conclusions or to outline the history taken and the understanding of the facts applied to the criteria in order to reach the opinion. The tribunal quoted Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh [1953] SC 34, 39 - 40, where Cooper LP had said that "the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight…."
Although Mr Tryon's letter is more than a "bare ipse dixit", and I would not go so far as to say, as the tribunal did in Potts, that it should be given no weight at all, in the circumstances of this case, where there have been two suicide attempts, it is an insufficient basis for concluding that there is no reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms.
The applicant said he had himself expressed dissatisfaction over the report to Mr Tryon and added that he is now financially in a position to afford a full psychiatric evaluation, although he would prefer not to have to do so. He also said he has been able to reduce his medication in recent times. Still, I think an up-to-date evaluation of his mental health that is fully responsive to the risk assessment questionnaire would be required before it could be determined that there was not reasonable cause to believe the applicant could not exercise the required control over firearms. I therefore find that, on an objective view of the evidence, there is reasonable cause for the belief in s 11(4)(b).
Other cases have pointed out that 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, [64] - [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].
Earlier in these reasons I have found that by reason of the two relatively recent suicide attempts and the absence of an up-to-date and comprehensive psychiatric or psychological evaluation responsive to the Commissioner's risk assessment questionnaire that shows that the applicant is unlikely to attempt self-harm using a firearm, the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms. The Commissioner indicated in the course of this application that the presentation of such an evaluation could cause his determination to be reviewed.
I realize Mr Laing is in an awkward position in that regard, as his treating psychiatrist, Dr Jones, declines to write medico-legal reports. Nevertheless, in the present circumstances the absence of such an evaluation leads to the conclusion that it is not in the public interest for the applicant to continue to hold his firearms licence.