Mair v Commissioner of Police

Mair v Commissioner of Police - [2023] NSWCATAD 116 - NSWCATAD 2023 case summary — Zoe

[3]

The Legislative Framework

Section 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states that the Administrative Decisions Review Act 1997 (NSW) (ADR Act) provides for the circumstances in which the New South Wales Civil and Administrative Tribunal (NCAT), has administrative review jurisdiction over a decision of an administrator. Pursuant to s 9(1) of the ADR Act, NCAT has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to NCAT for administrative review under the ADR Act.
Section 75 (1) (a) of the Firearms Act 1996 (NSW) provides for the applicant to apply to NCAT for an administrative review the decision to refuse to issue his licence under the ADR Act.
In accordance with s 63 of the ADR Act, the Tribunal is empowered to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any law, and may exercise all relevant functions conferred or imposed on the Commissioner. In determining the application, the Tribunal may affirm, vary or set aside the decision and make a decision in its place, or set aside the decision and remit the matter for reconsideration by the Commissioner in accordance with any directions or recommendations of the Tribunal.
Rule 24 of the Civil and Administrative Tribunal Rules 2014 (NSW) relevantly provides the following: … (3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made- (a) in the case where enabling legislation specifies the period within which the application is to be made-within the period specified, or (b) in any other case-by the end of the default application period. (4) The default application period for the purposes of subrule (3)(b) is- (a) in the case where the applicant has duly applied for an internal review of the administratively reviewable decision under the Administrative Decisions Review Act 1997-the period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of that Act or …
Section 53(9) of the ADR Act relevantly provides that an internal review is taken to be finalised if: (a) the applicant is notified of the outcome of the review under subsection (6), or (b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on).
Mr Mair made the internal review application on 25 July 2022. The respondent failed to complete an internal review and so pursuant to s 53 (9) b) it is deemed to have been finalised on 15 August 2022.
Section 3 (a) sets out that one of the objects of the ADR Act is: (a) to provide a preliminary process for the internal review of administratively reviewable decisions before the administrative review of such decisions by the Tribunal under this Act,
That objective is consistent with ensuring that agencies investigate and review the relevant material and explain the reasons for a decision.
No reason has been given as to why the respondent did not complete the internal review. The ADR Act sets out a regime for a party to make the request for internal review. An application for an internal review seeks the review of that existing decision, with the possibility that a fresh and different decision will be made, and that step should not be avoided without good reason.
In any case, Mr Mair lodged the application for administrative review with the Tribunal on 9 September 2022. In that regard the application was made within 28 days from when the internal review was taken to be finalised.

[4]

Consideration

The underlying principles of the Firearms Act are outlined in s 3. Relevantly they are: 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety 1. by imposing strict controls on the possession and use of firearms, and 2. by promoting the safe and responsible storage and use of firearms.
Section 11 of the Firearms Act allows the Commissioner to issue or refuse a firearms licence in respect of an application. Relevantly s 11 provides as follows: … (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 (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State. (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of - (a) the applicant's way of living or domestic circumstances, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind. … (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
The expression "public interest" is not defined in the Act.
In Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368, the Court of Appeal was interpreting the Firearms Act in the context of a licence being issued or refused under s 11. The Court of Appeal considered whether the public interest considerations in s 11(7) include the applicant's fitness or character which are mentioned separately in s 11(3)(a). Basten JA held at [41] that there is no "bright line" that can be drawn between the factors relevant under subs (7) and those which must be addressed under the other subsections. His Honour went on to say that: there may be characteristics of the applicant which do not lead the Commissioner to refuse a licence under one of the other provisions, but nevertheless permit the refusal of a licence under subs (7).
Leeming JA at [93] and White J at [106] agreed that the matters that can be taken into account in making an assessment of the public interest pursuant to s 11(7) are not limited to matters not otherwise dealt with by s 11(3). In White J's stated at [106]: Such considerations may include an applicant's fitness or character if that is relevant to an assessment of the public interest (as it would usually be), notwithstanding that an applicant's fitness or character is a separate matter to be considered under s 11(3)(a).
The Court of Appeal's conclusion was supported by the fact that s 11(7) is prefaced with the words "[D]espite any other provision in this section".
Applying that understanding of the law, and the material before me, for the reasons that follow, I do not consider that issue of the firearms licence would be contrary to the public interest.
The Commissioner refers to a series of incidents and submits that the applicant has exhibited behaviour and a pattern of behaviour that in the context of a firearms licence holder warrants refusal of the applicant's firearms licence application.

[5]

Incidents 2014 - 2015

The Commissioner refers to two incidents in the 2014 - 2015 period.
In his affidavit affirmed 12 December 2022, Mr Mair states that over that period he was experiencing significant problems in his relationship with his first wife. He states they were arguing often and over minor issues. He also states that around that time he was drinking too much to deal with the stress at home. He states he has come to terms with those problems, and it has not been an issue in his life since that time.
The first of the incidents that the Commissioner referred to occurred on 8 February 2014. Mr Mair and his wife had an argument and she called the police. Mr Mair's wife subsequently informed police that she held no fears for her safety and did not require further police action, police did not record any offence. On 11 February 2014, police COPS records note that police again spoke to the Mair's wife, who informed them that Mr Mair had accepted his drinking problem and depression and was now seeing a psychologist. It is also noted that the psychologist had informed Mr Mair that there was a possibility he suffered from PTSD and personality disorder.
The second incident is referred to in police COPS records note that on 8 August 2015 police were called after Mr Mair was evicted from a hotel. On attending, police saw Mr Mair lying on the footpath outside the hotel. He was unresponsive to hotel staff and the police, and an ambulance was called, and Mr Mair was taken to hospital. Hotel staff informed police that just prior to their arrival, staff had found Mr Mair standing in the rear carpark of the hotel. When asked why he was there, Mr Mair walked away without responding. Hotel staff then found two glass slats had been removed and broken from a window at the back of the hotel, as well as a sheet of plywood. The window led to a storeroom where water heaters were contained. Police found a shoe print at the base of the window, which matched the shoes that Mr Mair was wearing at the time.
Mr Mair was subsequently charged with: 1. intentionally or recklessly destroying/damaging property under the Crimes Act 1900 (NSW) s195(1)(a), for which he was made subject to a s10 6-month bond subject to a condition that he attend counselling and pay the Hotel compensation as sought; and 2. attempting to re-enter a licence premises as an excluded person under the Liquor Act 2007 (NSW) s77(6), which was dismissed pursuant to s10 of the Crimes (Sentencing Procedure) Act 1999.
Mr Mair stated in his affidavit affirmed 12 December 2022 that he pleaded guilty to those offences, and they were dismissed without conviction, provided he attended counselling which he states he did. Mr Mair has also annexed to his affidavit a report from a clinical psychologist and references he provided to the court. In the letter from the clinical psychologist dated 6 October 2015, it states that Mr Mair had presented about his mood disorders and there is some uncertainty about that diagnosis, and he was awaiting thorough psychiatric and clinical psychology assessment. The letter notes that at the time of the initial referral, Mr Mair and his partner had been experiencing significant relationship distress. Mr Mair had attended 7 sessions of psychological intervention and he had been well engaged in the sessions. The sessions were to be ongoing to assist him in managing emotional regulation and the relationship distress. It is also noted that Mr Mair had been enthusiastic during the sessions and was motivated to improve his current circumstances.

[6]

Incident on 6 February 2020

The Commissioner also relies on an incident involving Mr Ryan Watt, who is the former husband of Mr Mair's current partner
The police COP records allege that on 6 February 2020, Mr Ryan Watt had been assisting Chris and Chery Elm with clearing burnt trees and debris from their property, which adjoins a property on which Mr Mair and Mr Watt's former wife reside. As Mr Watt was operating his backhoe on the Elm's property, he pushed over a burnt tree which fell in the direction of Mr Mair's residence.
The notes record that Mr Mair and Mr Watt's former wife approached Mr Watt and began yelling at him for pushing the burnt tree onto their property. Mr Mair allegedly yelled: "You're a fucking cunt. Get out of the fucking machine. You're a pussy."
Mr Watt stated to police that this continued for approximately ten minutes.
Mr Watt then left the area and attended Ulladulla Police Station to request that an apprehended violence order be filed on his behalf. He stated he feared that if Mr Mair saw him in the public Mr Mair may turn violent.
Police attended Mr Mair's residence to speak to him about the AVO. Mr Mair told Police that he had challenged Mr Watt to get out of his tractor and to settle their differences man to man. Mr Watt's former wife told police that she had spoken to Mr Watt as he had no right to push the tree onto their property, and that he had damaged the boundary fence by doing so.
Police then spoke to the witnesses, who informed police that they had proof that the fence was destroyed in the recent bushfires and not by Mr Watt. They also stated they were of the opinion Mr Mair wanted to fight Mr Watt, based on his raised clenched fists when yelling.
Police subsequently made an application on behalf of Mr Watt for an apprehended violence order. Mr Mair also filed his own application for an AVO against Mr Watt. Both applications were resolved with no final order being made by the Court.
In his affidavit Mr Mair makes the following statement: On occasional times in my life, I have suffered from anxiety, mild depression and stress. I am able to identify when this is happening, and I immediately seek appropriate treatment and support from my doctors. I do not suffer from PTSD or any other mental condition. Annexed hereto and marked "B" is a complete copy of my doctors medical records relating to me for the past 5 years.
I am satisfied that the three incidents which involved police arose out of stress or situations arising in Mr Mair's life at the time. As is discussed in further details below, Mr Mair does recognise when those times occur in his life and does seek help.
In relation to the incidents themselves, they do not demonstrate a high level of aggression or violence on Mr Mair's part. Following the argument with his wife in 2014, Mr Mair was not charged and there was no indication of physical violence. In relation to the hotel incident, which occurred around the time he was having issues in his marriage, he was charged in relation to the incident and pleaded guilty. That incident involved property damage and did not involve physical violence. Again, Mr Mair sought assistance at the time. Finally, in relation to the third incident, no one was charged and both AVO applications were dismissed.

[7]

Depression and Anxiety

The Commissioner refers to police reports regarding Mr Mair's mental health and submits that Mr Mair had admitted in evidence that he has suffered from anxiety, mild depression and stress.
While the Commissioner acknowledges that Mr Mair has stated that he is able to identify when he is suffering from mental health issues, and immediately seeks appropriate treatment and support from his doctors, they submit that there is no detailed medical evidence from Mr Mair's treating doctors reporting on whether Mr Mair poses a risk to the public safety as a consequence of his mental health issues.
The Commissioner refers to the medical records provided by Mr Mair and submits:

Mr Mair was referred for treatment for mental health in 2015. Correspondence provided by his treating psychologist at the time noted that he had first had an episode of depression at 25 (in or around 2010), suffered from generalised anxiety disorder and non-melancholic depression of moderate severity, and was recommended medication and ongoing psychotherapy:
Mr Mair has attended his GP on a number of occasions (24 October 2019, 12 June 2020, 3 August 2020, 25 March 2022, 1 April 2022) regarding his mental health, and has been diagnosed with anxiety disorder and severe anxiety; and
Mr Mair has been referred for treatment for anxiety disorder on 24 October 2019, 3 August 2020, 25 March 2022.

In written submissions the Commissioner had submitted that without a detailed risk assessment from the Mr Mair's treating psychologist, the Tribunal cannot be satisfied that there is "virtually no risk" in him being able to possess or use firearms.
Mr Mair has subsequently obtained a psychologist report. The report is dated 7 March 2023 from a registered psychologist, Mr Chafic Awit. Mr Awit appeared at the hearing and was cross examined. Mr Awit states that Mr Mair was not found to be suffering from a psychological condition at the time of review. Mr Awit was aware that Mr Mair was in the process of reapplying for his firearm's licence. Mr Mair attended consultations commencing 3 February 2023 and mental health examination and psychometric testing did not indicate that any abnormalities or depression or anxiety. Mr Awit was challenged in relation to the limited extent of the testing in cross examination and stated that he was not of the view that any further testing needed to be done because the initial testing did not give indications of depression or the need for further testing.
Mr Awit concludes in his report that Mr Mair is not currently suffering from a psychology condition. It appears the last time Mr Mair suffered from a condition would have been in 2020, which was an anxiety disorder that arose from psychosocial issues which have since passed. Those issues are described as being a combination of the bushfires and the impact on COVID-19 on his business and the cancellation of his firearms licence after accusations from the ex-husband of his now partner.
Mr Awit states: The writer holds no concerns in relation to Mr. Mair's application for his Firearms' Licence. He is not on any course of treatment, nor requires to be so.
Mr Mair has annexed a complete copy the medical record from his doctor for the past 5 years.
In cross examination Mr Mair stated he has never been diagnosed with PTSD or a personality disorder. It is noted that those suggestions arise from comments made in 2014, by Mr Mair's wife at the time to police and the suggestion was only that he 'possibly' suffered from PTSD and personality disorder. There is nothing before me to support that diagnosis. Further, the evidence does not establish that Mr Mair has an ongoing issue with alcohol since the incidents in 2014 and 2015.
I found the evidence of Mr Awit to be credible and his prognosis regarding Mr Mair as consistent with the other medical evidence before me. Mr Awit recognised that incidents had arisen at times of stress in Mr Mair's life and conceded that Mr Mair may suffer from a condition down the track, but that Mr Mair has shown in the past that when such conditions arise, he does not shy away from seeking help. He stated in his report: … Mr Mair does have the ability to form a rational judgement and he has never shown a period where this was not the case.

[8]

Failure to disclose

The Commissioner states that Mr Mair failed to disclose matters on his various applications for the firearms licence.
In his reapplication for a firearms licence dated 24 April 2017, Mr Mair responded "no" to the question "Have you ever attempted suicide or self-harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness". Mr Mair has provided medical records in his affidavit. There is nothing in the evidence to suggest that Mr Mair has attempted suicide or self-harm in the past. There is nothing in those records which would indicate that in the 12 months prior to 24 April 2017 that Mr Mair had been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness. The comments noted in the police records from Mr Mair's ex-wife about a drinking problem and depression occurred were on 11 February 2014 and the subsequent incident in the hotel occurred on 6 August 2015. There is nothing to suggest that Mr Mair was dishonest in his answer in his reapplication.
The Commissioner submits that on 2 June 2017, Mr Mair sent a fresh application for a personal firearms licence, which was received by the Firearms Registry on 13 June 2017. That application noted the genuine reason of recreational hunting vermin control, vertebrate pest animal control and business or employment. Mr Mair again responded "no" to the question "Have you 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". Again, there is nothing in the evidence to suggest that statement is untrue or there was a failure to disclose.
The Commissioner also refers to the further application which was completed by the respondent online (the application the subject of the decision under review) in which Mr Mair responded "no" to the questions:

Have you previously held a NSW firearms licence under the current Firearms Act 1996?
Have you, in the past 12 months, been referred or treated for a mental or nervous disorder or illness?
Have you ever had an application for a licence or permit refused under the Firearms Act 1996?

At the hearing Mr Mair indicated that he had completed the application quickly online after he was telephoned by the Firearms Registry on a Sunday to complete the application. I accept that explanation and having heard the evidence of Mr Mair, I do not find that Mr Mair was trying to intentionally mislead in his application as clearly Registry records would have demonstrated he had held a licence previously.
The Commissioner also submits that Mr Mair has been using or seeks to use firearms for a purpose other than the genuine reason stated in his applications for a firearms licence. The Commissioner refers to the following matters: (a) in the Applicant's affidavit dated 12 December 2022 at paragraph [3] he states "I used firearms as an important part of the business to control vermin and pests when necessary". At paragraph [4], he further states "I believe I have a genuine need for firearms for the purpose of controlling vermin and pest for the clients of the business. My possession and use of firearms would certainly be beneficial to the clients of the business"; (b) submissions made by his solicitor in his request for internal review, and in these proceedings note that the Applicant uses firearms both on his rural property and also in his pest management business for the control of pests, and that his clients include National parks and Department of Primary Industries;
At the hearing, Mr Mair confirmed that he understood that his application was limited to a category B licence. He acknowledged that if granted his licence based on his 2021 application, he would only be granted a category B licence and would not be able to use firearms for the purpose of controlling vermin as part of his business or employment or for the gun which he had previously held. While Mr Mair stated in his 2022 affidavit that he seeks the firearms licence for his work, there is nothing to indicate that in the period when he did not have his category AB firearms licences that he did use a firearm in his work in breach the Firearms Act and he denied that had been the case.

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (1)