Le v Commissioner of Police - [2021] NSWCATAD 192 - NSWCATAD 2021 case summary — Zoe

NSWNSWCATAD

Le v Commissioner of Police

[2021] NSWCATAD 192

NCAT Administrative and Equal Opportunity|2021-06-17

View original source

At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2021-06-17

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

Introduction

This is an application by Ms Mai Nhi Nguyen Le ("the Applicant") seeking review of a decision by a delegate of the Commissioner of Police ("the Respondent") to refuse her application for a Category AB firearms licence under the Firearms Act 1996 ("the Act").
I have decided to affirm the Respondent's decision.

[2]

Background

The Applicant has not held a firearms licence. She is seeking a licence for the genuine reason of Recreational Hunting/Vermin Control.
The Commissioner's delegate decided to refuse the licence application. The Applicant sought an internal review which was unsuccessful.
The reasons provided in relation to the internal review decision identified a number of issues as relevant to the decision. Those included the view that the Applicant's psychological history raises questions in regard to her ability to maintain continuous and responsible control of firearms.
The internal reviewer was not satisfied that the Applicant's possession of firearms is without risk. This was primarily because of the Applicant's history of mental health issues. Records held by the Respondent indicate that the Applicant has threatened self-harm or attempted suicide on several occasions. The internal reviewer noted (citations deleted): I find as a fact the following: … • That as a child you were reported as a missing person on three separate occasions. Additionally, reports were made to police that you were constantly leaving home for days at a time. Concerns were held by your family that you may have been using illicit drugs; • That on 25 December 2013 a friend received a text message from you which caused them to hold fears that you were about to commit suicide. Police were alerted and attended your residence, where they located you on the bathroom floor. Police report that you had taken four tablets of Paroxetine 20mg (as hydrochloride), which is prescription medication used to treat depression and anxiety. You told police that you wanted to kill yourself, but you didn't anymore. You advised police you were alone on Christmas as your ex-partner had custody of your three-year-old son. You were voluntarily conveyed by Ambulance to Westmead Hospital; • That on 24 May 2014 police received information that you had threatened suicide. Police and Ambulance attended your residence. You informed Ambulance Officers that you had experienced suicidal thoughts and were feeling depressed. You were scheduled under section 22 of the Mental Health Act 2007 and were conveyed to Westmead Hospital for an assessment; • That on 25 August 2014 a report was made to police that you may be committing self-harm at the Central Railway Station. Police attended and located you in Henry Deane Plaza with a friend who had called for an Ambulance. Police spoke with you and you admitted to taking a packet of Panadol in an effort to commit suicide. You further informed police that you had attempted self-harm a couple of days prior on 23 August 2014 and had been taken to Westmead Hospital. However, you had left the Hospital prior to seeing a doctor. • Police sighted the message you sent to your friend saying you wanted to kill yourself and that you would not be around tomorrow. You were scheduled under section 22 of the Mental Health Act 2007 and were conveyed to St Vincent's Hospital for an assessment;

[3]

Applicable legislation

Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal's jurisdiction includes review of decisions by the Commissioner of Police to refuse to grant a licence.
The Tribunal's function in relation to applications before it is set out in section 63 of the ADR Act: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of that Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.
Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation. The principles and objects of the Act confirm that possession and use of firearms is a privilege that is conditional on public safety. Section 3(1) provides: (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) ...
Additionally, section 3(2) provides that the Act's objects include: '(c) to require each person who possesses or uses a firearm under the authority of a license to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms' (e) to ensure that firearms are stored and conveyed in a safe and secure manner
Section 11 of the Act provides: 11 General restrictions on issue of licences (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. … (3) A licence must not be issued unless: (a) 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, and (b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and … (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 … (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. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.

[5]

The Public Interest

The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. 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 'public interest' allows a consideration of issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
The "Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the 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 decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
An applicant's individual interest in holding a firearms licence must be subordinate to the public interest in ensuring public safety: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276.
The principal issue in this matter is whether or not there is a risk to the safety of the public, including the Applicant, if the Applicant is permitted to possess firearms. It is not possible to predict with absolute certainty where the risk lies in any particular situation. The decision in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 is often cited in regard to the issue of risk. The Tribunal stated at paragraph [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.
However, 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 prior conduct: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].

[8]

Failure to disclose health history

Section 70 of the Act provides that in or in connection with a licence application a person must not make a statement or provide information that the person knows is false or misleading.
It is not disputed that the Applicant has previously attempted suicide. It is not in dispute that she did not disclose this in her firearms licence application forms. The relevant application forms that the Applicant completed are referred to as the "P560 form" and the "P561 form". In his written submissions Mr Zoppo explained: "The Applicant provided false and misleading information on two occasions on 22 December 2018 when the P650 form was completed and on 9 January 2019 when the P561 form was completed On 22 December 2018, the Applicant completed a form entitled 'Declaration - Person shooting an approved Range or undertaking a Firearms Safety Training Course', otherwise known as a 'P650' form. On that form, under the section 'B PERSONAL HISTORY', the Applicant ticked 'No' to a series of questions, including 'Have you in NSW or elsewhere; … (e) Ever attempted suicide or self harm? (f) In the past 12 months been treated or referred for treatment for alcoholism, drug dependence or a mental illness within the meaning of the Mental Health Act 2007 or as a mentally disordered person within the meaning of that Act? (i) Currently suffering from any mental illness or other disorder that may prevent you from using a firearms safely?' The following page of the P650 form contains a section entitled 'C DECLARATION' which states • I understand that it is a serious offence under the Firearms Act 1996 to make a statement or provide information that I know is false or misleading & I certify that all the information contained in this declaration is true and correct in every detail • I agree to the NSW Police Force undertaking such enquiries as are necessary to establish that the information I have provided in relation to this application is true and correct' The Applicant signed and dated that declaration on 22 December 2018 she provided false and misleading information … On 9 January 2019, the Applicant completed a P561 application for a firearms licence. On that form under the 'personal history' section, the Applicant again answered 'no' to the question 'Ever attempted suicide or self harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?'. The Applicant ticked the declaration that stated 'I understand that it is a serious offence under the Firearms Act 1996 to make a statement or provide information that I know is false or misleading & I certify that all the information contained in this declaration is true and correct in every detail.'"
The Respondent contends that supplying false and misleading information on official forms is a substantial factor supporting licence refusal. It is an offence under section 70 of the Act to provide information that the person knows is false or misleading in a material particular. He submits that the information that the Applicant has provided in answer to the question of whether she has ever attempted suicide or self-harm is a material particular. By answering 'no' twice to the question within a three week period she has prima facie contravened section 70 of the Act.
One of the objectives of the Act is the functioning of a proper system of firearms licensing, which necessarily depends on applicants providing true and correct information in a comprehensible manner: see Kogias v Commissioner of Police [2020] NSWCATAD 297 at paragraph [102].

[9]

Incidents of Attempted Suicide and Self Harm

Records held by the Respondent indicate that the Applicant has threatened self-harm or attempted suicide on several occasions. These are summarised above. The Applicant's evidence addresses these incidents as does evidence of Mr Kruger-Davis and the KD Report 2020.
Mr Zoppo also referred to various medical records relating to the Applicant. He submitted: 25 December 2013 On 25 December 2013 after she was located on the bathroom floor after taking 4 tablets of 20mg paroxetine. The text message sent to her friend and the number of tablets taken by the Applicant suggest that it was an attempt to commit suicide. However, the KD Report 2020 states that the Applicant only had 'thoughts to kill herself. At paragraph 7 of the Applicant's statement dated 24 May 2021, the Applicant describes the 'events that lead up to this incident' but does not deny that the incident was an attempt to take her life. 24 May 2014 It is not disputed that the Applicant was admitted to Cumberland Hospital in May 2014 after telling police about suicidal thoughts. However, the Applicant has told Mr Kruger-Davis that she was prescribed mirtazapine by a general practitioner and ended up in Cumberland Hospital for two weeks. On the records from Cumberland Hospital, she was admitted for six days between 24 - 29 May 2014. The medical practitioner's notes also state that she commenced taking mirtazapine during her admission into Cumberland Hospital without any side effects other than sedation at the lower dose.57 Also significant is that the Applicant told medical practitioners during her admission that she had self-harmed in high school. 58 The Applicant's evidence makes no mention of these previous incidents of self-harm. August 2014 According to the police records, on 25 August 2014, the Applicant consumed a packet of Panadol in an attempt to commit suicide. The Applicant told Mr Kruger-Davis that this incident involved side effects to medication described as Loxitane but does not make mention of the packet of Panadol. The Applicant was forwarded the Commissioner's s58 documents by her representative, Mr Kable. Her response on 23 April 2021 to those documents informed the KD Report 2021 and was sought by the Commissioner for these proceedings. After reviewing the s58 documents, the Applicant does not deny consuming a packet of Panadol in her response and instead stated that she was triggered which 'caused [her] to do what [she] did'.
The Respondent contends that in light of this history there is "reasonable cause to believe" that the Applicant may not personally exercise continuous and responsible control over firearms.
'Reasonable cause to believe' is 'not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture: Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315 at paragraph [35].
It was held in AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5 at paragraphs [21] - [22]: 21. When applying the reasonable cause test, the decision maker must ask whether the applicant's previous attempt gives rise to a reasonable cause to believe that he or she may not personally exercise continuous and responsible control over firearms. The test, in context, is an objective one: State of New South Wales v Taylor [2001] HCA 15 at [10], Gleeson CJ, McHugh and Hayne JJ. 22. Not every suicide attempt will justify the revocation of the person's firearms licence. The Tribunal must assess the likelihood that AML will attempt suicide or self-harm again and, if that happens, the likelihood that a firearm will be used. ...

[11]

Mr Kruger-Davis' reports

As noted, Mr Kruger-Davis provided two reports - the KD Report 2020 and the KD Report 2021. Mr Zoppo expressed concerns in regard to those reports and submitted that little weight should be given to them. He submitted that the reports should be considered in light of the fact that Mr Kruger-Davis had not been treating the Applicant. He produced the reports based on his assessment after two telephone interviews on 13 and 14 January 2020 and a video interview with the Applicant on 12 May 2021.
The reports were prepared without the consideration of any supporting medical information from the medical professionals who had seen or treated the Applicant in the past. Mr Zoppo noted the lack of supporting evidence from any psychologist or other medical professional who had seen and treated the Applicant. He submitted that the Applicant has not been able to demonstrate any medical evidence over a significant period of time that her mental state has improved.
He queried how Mr Kruger-Davis could be satisfied of the improvement the Applicant's mental health status without seeing any medical records, particularly in light of the Applicant's complicated personal and medical history, including admission into hospital and being prescribed with medication to deal with depression and anxiety in the past.
Mr Zoppo also expressed concerns in regard to inconsistencies which he identified within Mr Kruger-Davis' reports. For example, the KD Report 2020 suggests that the Applicant's suicidal attempts and ideations are solely caused by the prescription medication. This is inconsistent with the KD Report 2021 which suggests that the Applicant's thoughts of suicide were linked to abuse by mother and the prescription medication she was prescribed.
In response to the question posed by the NSW Firearms Registry regarding any condition or impairment that the Applicant has been diagnosed with or suffered, Mr Kruger-Davis answered: Ms Le does not suffer from any mental illness, depression or anxiety, personality disorder or substance abuse disorder.
Mr Zoppo submitted that this response does not address the fact that the Applicant had been diagnosed in the past with major depressive disorder.
A subsequent question asked: 'Has Ms Le ever deviated from any prescribed course of action or medication relevant to the above condition?'
Mr Kruger-Davis' response in the KD Report 2021 was: 'Not Applicable'
Mr Zoppo submitted that this response contradicts the KD Report 2020 which notes that the Applicant had told Mr Kruger-Davis that she had difficulty with different prescription medication in 2013 - 2014 and stopped taking them.
Mr Zoppo also noted that the Applicant had not returned to complete a treatment plan with Mr Jeremy Bastow. Further, in September 2017 the Applicant saw Dr Sabita Banik for anxiety and depression. Dr Banik referred her to Dr David Sturrock however she never went to see Dr Sturrock or another practitioner at his practice.
In response to the question of whether there is a current and/or future risk that the Applicant's condition or impairment may impact on her ability to exercise continuous or responsible control of a firearm Mr Kruger-Davis answered: No, because no mental health impairment or condition currently exists. Future risk, is difficult to predict but would require significant changes that are not currently indicated.
Mr Zoppo submitted that, when considered in light of the Applicant's history of suicide attempts and ideations, this response does not address how she has been able to overcome any mental health issues such that there is no current or future risk associated with her continuous or responsible control of a firearm.
The Applicant's submissions state that she is able to identify, and alter, her situation, if and when unduly stressors become evident, but no evidence has been given in this regard.

[14]

History of mental health issues

The Applicant's evidence is that her relationship with her mother was the main cause of all her mental health issues. She said that she was being abused at home and that her complaints were not believed. She said that she ran away from home many times because no one wanted to help her. This was because they believed false information provided by her parents.
The Applicant said that she had been to a psychologist in the past about issues with her mother. She said that her mother and a family friend attended the session with the psychologist but her mother and the friend both lied about the Applicant and the psychologist took their side. Following the session both her mother and her friend threatened her that if she ever spoke to anyone about the issues, they would make sure she ended up on the street.
She does not accept that the record of her dealing with police and other agencies is accurate where it was informed by her parents. She said that she has not spoken with her mother for over five years and that, as a result, things have drastically improved. The mental health issues that had arisen from that relationship are no longer present.
In addition, the Applicant said that a bad reaction to medication was another cause of her having suicidal thoughts. The medication she had been given was making her feel really sick. She tried to explain the side-effects to those prescribing the medication but felt that no one listened. Her recollection of events is now blurred as a result of the medication that she was taking at the time.
In relation to her meeting with Mr Bastow in December 2019, the Applicant agreed that she had not returned to complete a treatment plan with Mr Bastow. She said that she decided not to continue seeing Mr Bastow as he had made it clear that he did not support anyone getting a firearms licence. She wanted a report from Mr Bastow, not a treatment plan. She only agreed to his suggestion of a mental health plan out of politeness. Instead she consulted Mr Kruger-Davis.

[15]

Mr Kruger-Davis

She did not agree that she just wanted a report from Mr Kruger-Davis. She said that she wanted an honest opinion. If Mr Kruger-Davis had said that he would not support her application she would have accepted it. She denied that she tried to make any false statements or twist any truths during her assessment with Mr Kruger-Davis.
As noted above, Mr Kruger-Davis provided two reports and also appeared at the hearing. He said that he had not seen any signs of the Applicant having any mental disorder or personality disorder over the last 15 months and that there is no suggestion that the Applicant is a suicide risk. He identified the factors which he considered had lead to her prior mental health condition as including her relationship with her mother and the medication that she had been taken. He said that those factors are no longer present. She has severed her relationship with her mother, is in a stable relationship with her husband and her son, she left work when she felt bullied and she is aware of the need to monitor the side-effects of medication.
Mr Kruger-Davis did not accept that he should have consulted the Applicant's medical records before preparing his reports because he was asked to provide a current assessment. He was not asked to provide a supporting report. He said that at the moment the Applicant has no mental health issues.
He was not concerned that the Applicant had presented differently in psychological tests in 2017. He said that he would expect that the results would be different at different times in a patient's life. He is unable to assess how the Applicant was several years ago but at the moment he does not believe that her access to firearms would pose a threat. He said that he cannot predict what might happen in the future but that the factors that would have triggered her suicidal behaviour in the past are no longer present.
He stands by the view expressed in his reports that the Applicant poses virtually no risk to the public if she is given access to firearms.

[19]

Discussion

There are two issues that concern me in this matter. Firstly, I find it difficult to accept that the Applicant believed that she was answering the questions on the P560 form and the P561 form correctly. Her explanation for doing so suggests that she did not understand the significance of the information that was being sought. She made no attempt to clarify the issue by contacting the firearms registry but simply relied on the advice of her friends. I have not formed the view that she deliberately withheld the information. However, if she in fact believed that she was answering the questions correctly, that belief was not reasonable.
In the circumstances, this casts doubt on the Applicant's ability to understand the obligations that apply to a licence holder to ensure compliance with the Act and those prescribed by the Firearms Regulation 2006.
I agree with the Respondent that the firearms licensing regime depends on applicants providing true and correct information and that the failure to do so is a significant consideration in regard to whether a licence should be granted.
In my view, it would be necessary for the Applicant to undertake further steps to familiarise herself with the obligations applicable to a licence holder before the Respondent could be satisfied that she is to be trusted to have possession of firearms without danger to public safety or to the peace.
The second issue that concern me is the Applicant's history of mental health issues. I am not concerned that the Applicant poses a danger to the wider public but I am less comfortable with the view that she does not pose a danger to herself. There is no doubt that she has attempted suicide in the past. A significant period of time has passed since the last recorded attempt. In order to determine whether or not there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms it is necessary to consider what steps she has taken since that time to address the factors that lead to those attempts.
The evidence is that she has severed the relationship between her and her mother. There is also evidence that she is now in stable family relationships. However, there is limited evidence of steps that she has taken to address underlying mental health issues. The Applicant has been diagnosed with a major depressive disorder. In September 2017 the Applicant saw Dr Sabita Banik for anxiety and depression and was referred to a psychiatrist for specialist assistance.
It is clear that at least at the time that she saw Mr Bastow in December 2019, Mr Bastow considered that she would benefit from a treatment plan that included cognitive therapy, relationship counselling, grief counselling and trauma work.
I agree with the Respondent that the Applicant has not provided any medical evidence over a significant period of time to demonstrate that her mental state has improved.
I accept that Mr Kruger-Davis does not believe that her access to firearms would pose a threat because the factors that triggered her suicidal behaviour are no longer present. However, he did not adequately address the issue of the likelihood of any relapse. It is not possible to predict what might happen in the future. However, in my view, given the Applicant's history of mental health issues, it is not sufficient that Mr Kruger-Davis states that he has not seen any signs of any mental disorder or personality disorder over the last 15 months and that she has no mental health issues at the moment. Without further evidence I am unable to be satisfied that a relapse is unlikely.
It is a credit to the Applicant that she has been able to overcome the difficulties that she had previously experienced. I accept that she now has stability in her life and has no current mental health issues. However, in my view it is too soon to be comfortable with the likelihood of this continuing. If she had undertaken the type of program that Mr Bastow had suggested I may have formed a different opinion but on the evidence before me I cannot be satisfied that the Applicant poses virtually no risk to the public if she is given access to firearms.
That being the case, I agree with the Respondent that the licence should not be granted at this time. The correct and preferable decision is therefore to affirm the decision to refuse the licence application.