O'Halloran v Commissioner of Police, NSW Police Force

Andrew applies for a NSW firearms licence

1. In April 2022 Andrew applied for a firearms licence in New South Wales. One of the questions in the application form, requiring a YES/NO answer, is this: Have you, in NSW or elsewhere: … 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?
2. Andrew answered YES to that question, and NO to all the other questions in the form.
3. In an attachment to the form he explained: Following the death of my wife Anna in April 2020 after a 7 year battle, I was treated for acute trauma, complex grief and resultant alcohol abuse. I no longer have any residual issues and am the sole parent of two young boys aged 9 and 11. I am a lawyer with no history of mental illness.
4. The Firearms Registry wrote to Andrew noting that it had 'received information relating to your mental health which raises concerns that your ability to possess and use firearms may be impaired'. The letter indicated it was: … a requirement as part of the licensing process for the Firearms Registry to request an assessment from a Psychiatrist/Psychologist as evidence of your suitability to possess and use firearms without posing a risk to public safety following the disclosure of any mental health related incident or illness.
5. The letter asked Andrew to get a referral to a Psychiatrist/Psychologist who would then assess him and send a report to the Registry for further consideration.

Andrew's licence application is refused; firearms are seized

1. Andrew didn't provide any response to the Registry. He explained in his affidavit sworn on 1 March 2023 (Ex A1 [33]) that his interest in social shooting had diminished, and he ultimately decided not to pursue the application. On 24 November 2022 the Registry notified him his firearms licence application had been refused. The content of the Registry's letter (Ex R1, p. 57) suggests that the sole reason for the refusal was Andrew's failure to provide 'a mental health risk assessment'.
2. On 30 November 2022 Police attended the Applicant's residence (where Andrew had indicated his firearms were being stored) to seize Andrew's firearms. There were meant to be two rifles there, but Police found three. The third rifle was registered to the Applicant. According to Police records, the safe storage address for this rifle was the Applicant's other son's residence, in a different suburb of Sydney.
3. The attending police officers seized the third rifle as well as the two owned by Andrew. The officers also noted in their report: 'Firearms Registry may need to place a condition on [the Applicant's] firearms licence that no firearms are stored at this address.'

The imposition of the condition on the Applicant's licence

1. The condition (set out in [8] of these reasons) was imposed on the Applicant's licence on 7 December 2022.

The Dan Murphy's incident and its aftermath

1. Although what I will describe as the 'Dan Murphy's incident' occurred two months before the Firearms Registry decided to refuse Andrew's firearms licence application, it seems the Registry was not aware of the incident. In describing the incident I rely on what is recorded in the COPS event report at Tab 17 of Ex R1.
2. On 24 September 2022 Andrew was seen getting out of his car, with an empty wine bottle in his hand, outside a Dan Murphy's liquor outlet. He entered the store, and when he came out he was carrying more alcohol. He was seen to drink from a bottle while he was in his car and then he drove from the car park. The person who observed this reported it to the police, together with the vehicle registration.
3. Within an hour, police officers attended Andrew's (and his parents') residence and spoke to Andrew's mother. She is reported to have said 'her son is an alcoholic, suffering from anxiety. … [Andrew] and his children currently see a psychologist in relation to the trauma associated with [his wife's] death.'
4. Andrew was out walking his dog but he soon returned home. His interaction with the police officers, on the footpath in front of the Applicant's home, was captured on body-worn video cameras. The vision, contained in a USB stick at Ex R1, Tab 20, was played on screen during the Tribunal hearing.
5. In the discussion with the police officers Andrew was open and honest, not shrinking away from what was being put to him. He said he had taken 'a sip' in the car. He had been out the night before, was 'a bit jittery this morning' and didn't want to come home shaking. He 'didn't drink much … just had a couple of swigs', threw the bottle out and then came home.
6. He acknowledged he was still 'struggling' after the death of his wife, which he described as a 'horrendous, painful, terrifying death'. His family had undertaken an 'intervention' the previous day, after which he had 'acquiesced to the family's demand' that he go and get 'an increase in treatment level'.
7. When asked if he had any thoughts of self-harm he answered without hesitation 'No, no, no, none of that', but said he had got himself 'entrenched in this cycle of grief'. He had put his sons through a lot of therapy in the early days but the psychologists were now telling him that because he didn't address his own issues at that point 'it's become a bit more entrenched; it's what they call complex grief'. Knowing for five years that his wife was dying, and then watching her die, 'comes with a trauma on top of it', he said.
8. He accepted he hadn't dealt with everything well, but he had done 'the best he could with two kids'. But 'it's been really hard and it doesn't seem to be getting any easier'. He said his mother thinks he is depressed; he thinks he is anxious. He said he 'shakes a lot', not only from alcohol, and the boys pick up on it, so he 'literally had three swigs' because he wanted something to calm him down before he walked in the front door.
9. He repeated that he 'wouldn't ever self harm … I've got two little boys'. At the end of the interaction, the officers noted his parents 'obviously care about you' and Andrew responded with 'They're at their wits' end … Things aren't good in here' (pointing to the house).
10. The officers notified Andrew the number plate of his car would be 'red flagged' for breath testing. Between the time of its red flagging, in or around September 2022, and the swearing of his affidavit on 8 May 2023, Andrew was breath tested four times, always with negative results.

The third rifle seized in November 2022

1. On the Anzac Day long weekend in 2022 Andrew went camping and shooting with some of his brothers and some of his school friends. One of the rifles they had with them was a Remington owned by the Applicant. It was usually stored in a gun safe at the residence of one of Andrew's brothers.
2. At the end of the weekend Andrew's brother asked Andrew to take the Remington to Andrew's place and put it in the gun safe there. The brother explained he wasn't going straight home, so he couldn't put it away in his own gun safe, but he was concerned that it should be safely stored. Andrew agreed to take it home with him.
3. At the first reasonable opportunity the Remington should have been returned to its approved storage location, Andrew's brother's place, but it seems everyone forgot about it. Apparently the Applicant didn't even know it was there (he made no mention of it in his affidavit sworn on 2 March 2023), since Andrew didn't tell him he'd brought it home after the trip: Ex A3 [10]. The Remington stayed in the gun safe at the Applicant's residence until it was discovered in November 2022 when the Police came to seize Andrew's firearms. Andrew said, and I accept, that only he and the Applicant had access to the gun safe and that he, Andrew, did not access the safe between April and November 2022.

The Applicant's submissions

1. The Applicant submits the evidence does not establish 'even the remotest possibility of risk to public safety' resulting from either the storage of a firearm at the Applicant's premises, from Andrew's continuing to reside at those premises, or from Andrew himself.
2. The Applicant notes that during the entire 7 years of Andrew's wife's battle with cancer, Andrew was licensed in Queensland, had access to firearms, and was involved in no adverse incidents whatsoever.
3. The Applicant points to the candour with which Andrew answered the question in the licence application ([20]-[22] above), noting the disjunctive nature of the question and the fact that Andrew was admitting to overuse of alcohol, not to any mental health condition or issues.
4. The evidence relating to Andrew's life and career, it is submitted, supports a reliable conclusion that there is virtually no risk or danger: 1. of self-harm; 2. to the public safety or peace; 3. of the Applicant not exercising continuous and responsible control of his firearms in his current domestic circumstances; or 4. of Andrew accessing a firearm at home or anywhere else with any intention to self-harm or commit a crime.
5. The Applicant also submits the imposition of a condition on the Applicant's licence is 'unbecoming of his reputation in the community'.

The Commissioner's submissions

1. The Commissioner's submissions emphasise the public safety principles underpinning the firearms legislation. They acknowledge that the discretion to impose a condition must be exercised reasonably, having regard to the subject matter, scope and purpose of the Firearms Act, but with the potential risk to public safety as the 'first and clearest consideration'.
2. The submissions note Andrew's explanation, attached to his firearms licence application in April 2022, in which he stated: … I no longer have any residual issues … I am a lawyer with no history of mental illness.
3. But in September 2022 he said he was still 'struggling', to such an extent that his parents had staged an 'intervention', recommending the level of his treatment to deal with his issues be increased.
4. They also note the reference in his affidavit sworn on 1 March 2023 (Ex A1 [29]) to his having 'declared that [he] had been treated for alcohol abuse disorder', and that 'alcohol use disorder' is a mental disorder according to the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (Text Revision) (DSM-V-TR). They note the lack of evidence as to the timing of the diagnosis or by whom it was made, and what other diagnoses may have been considered.
5. In summary, the Commissioner submits there is no, or no sufficient, evidence about Andrew's mental health. The Tribunal should be alive to the possibility that Andrew may harm himself or others if he could easily access firearms. The condition is proportionate to the risk and should not be disturbed.

Consideration

1. I accept the Commissioner's submissions concerning the public safety aspects of the firearms legislation. I agree that public safety considerations should be central to the exercise of the discretion to impose a condition.
2. At the outset, and keeping public safety considerations at the forefront of my thinking, I give no weight to the Applicant's claim that a conditional firearms licence is 'unbecoming of his reputation in the community'. Even if that is so, it counts for nothing. It does not contribute even the slightest justification for setting aside the decision to impose the condition. Public safety considerations are paramount, and the possible effect of a special condition on a person's reputation is irrelevant.
3. The Applicant points to his unblemished record of firearms possession (although that glosses over his inattention to the whereabouts of his Remington rifle over a period of almost six months). I infer he feels aggrieved by what he regards as an indignity, triggered not by any default of his own but by a perceived risk pertaining to his son.
4. He also points out that the perceived risk came to light only because of his son's candour in answering the question in his own licence application as he did. But once the information was volunteered, it surely couldn't be ignored. And no matter how reasonable and measured Andrew appeared to be during his interaction with the police officers in September 2022, or in the witness box during the Tribunal hearing, neither the Applicant nor Andrew himself has provided satisfactory independent evidence that the issues of alcohol overuse and depression/anxiety (whether with or without formal diagnoses) are behind him.
5. I do not ignore the fact that it is now over 12 months since the Dan Murphy's incident. Nor do I ignore Andrew's immediate and, in my view, truthful response denying thoughts of self-harm. He has had several clear breath test results. By all accounts he is moving on successfully with his legal career. These are all positive signs.
6. But Andrew has struggled with his grief, he has had issues with alcohol to such an extent that his mother is said to have described him as an alcoholic, and his family once felt compelled to intervene to encourage him to increase the level of treatment he was receiving. With that history, and in the absence of an expert opinion from an appropriate professional practitioner, I do not consider it desirable to allow firearms to be stored in the same location where Andrew resides.
7. I note that, no matter whether the condition is upheld or not, the Applicant intends to comply with its substance by storing his firearms away from the residence anyway. In that event the condition simply enforces conduct that the Applicant has already acceded to.

Conclusion

1. In my view the final two words of the condition are unclear, but it has not been put to me that the condition itself is uncertain in its scope. It is appropriate therefore to uphold the condition as currently formulated.

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: 19 October 2023