Parkes v Commissioner of Police, NSW Police Force

Applicable legislation

1. The general principles and objects of the Act are set out in s 3 as follows: 3 Principles and objects of Act (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) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows - (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence 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, (f) …
2. Section 11 of the Act relevantly 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 ... (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 evidence

1. The Applicant relied on his undated statement (exhibit A2), a reference from Mr Fergus Mcneil dated 8 September 2023 (exhibit A1) and a report from Michael Kruger-Davis, Psychologist dated 2 September 2023 (exhibit A3). The Applicant gave short oral evidence and was cross-examined by Mr Roberts, the solicitor appearing for the Respondent.
2. The Respondent did not call any oral evidence and relied on the s 58 documents (exhibit R1).

Submissions

1. The Respondent relied on the Respondent's Outline of Submissions dated 22 September 2023 and both parties made oral submissions at the hearing.

Role of the Tribunal

1. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the ADR Act. Section 63 of the ADR Act provides that in determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34]. In an application for review the Tribunal is not restricted to a consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31.
2. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23]. Accordingly, the objects and purposes of the Act are relevant.

Issues

1. The issue to be determined in this matter is whether this Tribunal considers that the issue of a firearms licence to the Applicant is in the public interest.

Public Interest

1. The phrase "public interest" is not defined in the Act. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at [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 Toleafoa [1999] NSWADTAP 9 at [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.
2. 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 (No 2) (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.
3. 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 at [33]. In the present context and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety.
4. In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward), at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130].
5. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 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. Hennessy DP stated at [8]: 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.
6. 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, at [64] - [66]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [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".

Grounds relied on by the Respondent

1. The Respondent submitted that the Applicant's prior conduct and his driving record are such that it is not in the public interest for the Applicant to be granted the privilege of a firearms licence. Reference was made in the written submissions that the Tribunal also needs to be satisfied that the concerns expressed in the Decision in relation to the Applicant's mental health have adequately been addressed. Concerns were also raised by Mr Roberts in relation to the Applicant's current use of medicinal cannabis.

2021 Incident

1. Reliance was placed by the Respondent on an incident that occurred on 11 January 2021 (2021 Incident), the details of which are set out in COPS Event Ref No: E 80259384 (2021 COPS Event). The Applicant was aged 16 years old at that time and the 2021 COPS Event records that he and some friends were found on school grounds at approximately 1.20 am. The young people were recorded to have fled from police and hid, prior to being detained and questioned. When asked if they had consumed any alcohol or drugs, the Applicant told police he was a cannabis user. He was then searched by police, who located seven grams of cannabis. The Applicant informed police he used it for anxiety attacks. The Applicant was issued with a caution by police, and he later attended an interview with his father and admitted to possessing cannabis.
2. In his undated statement, the Applicant indicated that he was very remorseful about the 2021 Incident. He stated that he had learnt his lesson and would never do it again. In his character reference, Mr Mcneil indicated that he knew the Applicant as both a family friend and a colleague. He wrote that he was aware of the 2021 Incident and that the Applicant was very embarrassed and regretful about the incident. Mr Mcneil stated that he had seen no evidence of current or past use since being caught by police.
3. In his oral evidence before the Tribunal, the Applicant accepted that he, and his friends, had initially run away during the 2021 incident but said that he did not know it was the police, and thought it was someone coming to "mess" with them. He said when they saw the police, they came out of hiding. The Applicant indicated that he had had anxiety attacks but had never seen a medical practitioner about them.
4. In cross-examination, the Applicant said that at the time that he was cautioned, he was using cannabis "once per month, if that." He agreed at that time he held his Minor's Permit and was using a firearm about once per fortnight. He said that he never used his firearm on the same day as using cannabis.

Consideration

1. The Applicant did not dispute that the 2021 Incident took place and I accept that it did, and that the 2021 COPS Event accurately records what occurred. I also accept that the Applicant is embarrassed and remorseful about the incident and that he was a juvenile at the time.

Driving matters

1. The Applicant obtained his Learner Licence (Class C) on 4 August 2020, and his motorbike Learner Licence (Class R) on 16 June 2021. He obtained his provisional Driver Licence on 4 August 2021 and his provisional motorbike Licence on 14 June 2022.
2. On 16 November 2021, when he was aged 17, the Applicant was riding his motorbike at around 45 kilometres per hour, when he lost control and collided with a parked vehicle. He was subsequently charged with negligent driving. On 7 November 2022, the charge was found to be proved before the Coffs Harbour Local Court but dismissed under s 10 of the Crimes Sentencing Procedure Act 1999 (NSW) without proceeding to a conviction.
3. On 10 June 2022, when he was aged 17, the Applicant was issued with a caution for not displaying his "L" signs as required.
4. In his evidence, the Applicant acknowledged that he had been issued with a caution on 10 June 2022. He also acknowledged the accident on 16 November 2021 and the subsequent charge. He stated that he was tested for drugs and alcohol on the day of his accident and was negative to "everything".

Consideration

1. I accept the Applicant's driving history as referred to above and am satisfied that there is no evidence of the Applicant having drugs or alcohol in his system following his accident on 16 November 2021.

Consideration of health issues

1. I have had regard to the report of Mr Kruger-Davis. Mr Kruger-Davis did not give oral evidence and was not required for cross-examination. Whilst Mr Kruger-Davis was provided with the s 58 material, I accept that his report is largely based on the Applicant's self-reporting, which included a telephone call and two telehealth appointments with the Applicant.
2. Notwithstanding this, I accept Mr Kruger-Davis's opinion that the Applicant does not suffer from any mental health illness or disorder, including anxiety. In the report, Mr Kruger-Davis refers to the Applicant stating that in relation to the 2021 Incident, he told police that he used cannabis to relieve anxiety and that he said this because he thought having an excuse would help. Mr Kruger-Davis opined that having some 'anxiety' symptoms does not necessarily lead to a diagnosis of anxiety. In accepting Mr Kruger-Davis's opinion, I have also had regard to the Applicant' evidence, including his statement that whilst he had anxiety attacks, he had not sought medical treatment in relation to them. I am satisfied that whilst the Applicant has some symptoms of anxiety, he does not have anxiety.

Medicinal cannabis

1. In his report, Mr Kruger-Davis also refers to the Applicant reporting that he does not take any medications other than prescribed medicinal cannabis to manage his back pain following a motorcycle accident where he sustained a broken back. Later in the report, Mr Kruger-Davis indicates that the Applicant's general practitioner was not contacted in relation to the report.
2. In his report, in response to question 7 of the NSW Firearms Registry Risk Assessment Questions asking "Is the customer taking any medication that would have an adverse effect on his alertness? (ie their ability to drive a motor vehicle or operate machinery?)" , Mr Kruger-Davis states: "Medicinal cannabis prescribed for back pain following a motorcycle accident where he broke his back. The dosage is taken before bed each night. This limits the pain so that he can get some sleep. Taking the medication before he sleeps means that he is not operating machinery or driving when affected by the medication."
3. In response to question 8 in his report that asks, "Has the customer ever deviated from any prescribed course of action or medication relevant to the above condition?", Mr Kruger-Davis states: "No, he stated that he is diligent in taking his medication."
4. There is no reference in the Applicant's undated statement to being prescribed medicinal cannabis. In cross-examination, the Applicant gave evidence that he was prescribed medicinal cannabis on 27 June 2023, which coincidentally was the same day that his review application was filed with the Tribunal. The Applicant stated that prior to then, he was using cannabis once per month, "if that," including after receiving the caution for cannabis. The Applicant indicated that he had been prescribed medicinal cannabis after breaking his back in a dirt bike accident in January 2023.
5. The Applicant's evidence was that his current prescription was for 0.1 gram of medicinal cannabis daily, to be taken at nighttime. He stated that he could not have it at work as it was too dangerous and that he took it at around 5.30 to 6 pm, a couple of hours before he went to bed. The Applicant said following discussions with his medical practitioner, he did not drive if he had taken the medicinal cannabis. When asked about his discussions with his medical practitioner about driving, the Applicant said that by law, he could not drive under the influence of cannabis in his system and that he "usually" got a lift to work the morning after taking it. When asked if it was illegal to drive under the influence, the Applicant said that it was and that he avoided doing so. He also agreed that he could not drive if he was taking medicinal cannabis daily.
6. Mr Roberts then asked if he was taking medicinal cannabis daily, and the Applicant said "No" and that he probably took it three to four times per week. He said that he only drove on the weekend and that he "usually" did not drive on days after using cannabis, and that he did so "very rarely." The Applicant agreed that the medicinal cannabis affected his capacity to drive a vehicle and affected the safety of using firearms. He also agreed that it was unlawful to drive with cannabis and that it was the same with using firearms and cannabis. He indicated that after taking cannabis, he was drowsy for an hour or so and then was ok.

Consideration

1. I accept that there is no evidence of any breaches by the Applicant in relation to firearms during the time that he held his Minor's Permit and that he continued to hold it following the 2021 Incident.
2. In his evidence, the Applicant stated that at the time of the 2021 Incident, he was using cannabis around once a month "if that," and that he continued to do so up until being prescribed medicinal cannabis in June 2023. The Applicant continued to take medicinal cannabis as of the date of the hearing.
3. Mr Mcneil's character reference indicates that he has not seen any evidence of current or past use by the Applicant since he was caught by police. It is assumed that Mr Mcneil is referring to the 2021 Incident involving cannabis. In circumstances where the Applicant acknowledges to having continued to use cannabis after the 2021 Incident; to taking medicinal cannabis from June 2023; and where Mr Mcneil appears to be unaware of this use by the Applicant, I give extremely limited weight to Mr Mcneil's character reference.
4. It was not in dispute that the Applicant held a Minor's Permit from 2017 until 4 November 2022, and he acknowledged that some of his cannabis use coincided with him holding this Permit. The Applicant acknowledged that during the period that he was using cannabis and holding the Minor's Permit, he was also using a firearm about once per fortnight. Whilst I accept the Applicant's evidence that he did not use cannabis on the same day as using his firearm and that the Applicant was drug tested with a negative result for cannabis following his accident on 16 November 2021, I am satisfied that he continued to use cannabis during the period he held his Minor's Permit as well as during the period that he held his Learner and Provisional Licences (Class C and Class R).
5. I am satisfied that the Applicant continued to use cannabis after his Minor's Permit expired up until 23 June 2023, at which time he was prescribed medicinal cannabis in the amount of 0.1 grams per day. It appears from Mr Kruger-Davis's report that he was advised by the Applicant that he was diligent in taking his medicinal cannabis and did not deviate from the prescribed course of action. Whilst the prescribed dose was daily, the Applicant gave evidence denying that he took the medicinal cannabis daily and said he probably took it three to four times per week. In the circumstances, I am satisfied that the Applicant takes medicinal cannabis at least three to four times per week.
6. As referred to previously, Mr Kruger-Davis stated in his report that the Applicant's dosage of medicinal cannabis before bed meant that he was not operating machinery or driving when affected by that medication. Mr Kruger-Davis is of course a psychologist, rather than a medical practitioner. Accordingly, I am not satisfied that he has the expertise to give an opinion in relation to the effects of any medication taken by the Applicant, including medicinal cannabis. On this basis, I have no regard to Mr Kruger-Davis's report in relation to his opinion as to the effects on the Applicant from using medicinal cannabis.
7. No medical evidence of any kind was adduced by the Applicant in relation to his use of medicinal cannabis, including any effect that taking such medication may have on him or his activities, including driving or using firearms. In his evidence, the Applicant accepted that medicinal cannabis affected his capacity to drive a vehicle as well as his use of firearms and also that it was unlawful to drive with cannabis or to use firearms and cannabis.
8. However, even though the Applicant said that he had been told by his medical practitioner that it was unlawful to drive with cannabis in his system, the Applicant gave evidence that he "usually" got a lift to work the morning and tried to avoid driving on weekdays. I am satisfied that the Applicant's evidence, including his use of the term "usually", means that on occasion he does drive to work on weekdays and that he also drives on weekends. In the circumstances, I am satisfied that the Applicant continues to drive on occasion whilst using medicinal cannabis which has been prescribed to him for use on a daily basis.
9. Mr Kable relied on the decision in Gear v Commissioner for Police, NSW Police Force [2017] NSWCATAD 241 (Gear) and Gorgieski v Commissioner of Police, NSW Police [2006] NSWADT 214 (Gorgieski). Each case must of course turn on the particular facts and circumstances of that case. In my view, the cases of Gear and Gorgieski can both be distinguished from the current matter, as they were both limited to the previous use of cannabis by the applicants in those matters rather than use that was current at the time of the Tribunal proceedings. In the absence of any challenge to his evidence, I accept that the Applicant's use of medicinal cannabis is not unlawful. I am however satisfied that the Applicant was taking medicinal cannabis at the time of the hearing and that his use was ongoing. There was no evidence adduced as to the time frame for his prescription.
10. Further, it is clear that whilst the Applicant acknowledged that he had been told by his medical practitioner that it was unlawful to drive with cannabis in his system, his evidence was to the effect that he used medicinal cannabis at least three to four times per week, continued to drive on the weekend, and on occasion during the week. In the absence of any medical evidence as to the amount of cannabis that remains in the Applicant's system after taking his dose of medicinal cannabis, the length of time that it remains in his system, and the effect that it may have on his driving, there is a real concern about the Applicant's compliance with legislative requirements and traffic regulations relating to the use of cannabis and driving. The Applicant's admitted conduct also raises concerns about his safety whilst driving and the safety of the public.
11. These concerns are strengthened, after taking into consideration the Applicant's evidence that he continued to use cannabis after the 2021 Incident and at times drove a car and a motorbike as well as using a firearm on a fortnightly basis whilst holding his Minor's Permit.
12. In the absence of any medical evidence, I am not able to be satisfied that there would be virtually no risk if the Applicant was to be issued with a firearms licence whilst using cannabis, including medicinal cannabis.
13. I accept the Applicant's evidence he is very passionate about sport and clay target shooting and enjoyed competitive shooting, his individual interest must be subordinate to the public interest in ensuring public safety.

Conclusion

1. In all of the circumstances of this matter, I am not able to be satisfied that there would be virtually no risk to the community if the Applicant was to be issued with a firearms licence at this time. Accordingly, having regard to the principles of the Act, and the findings that I have made, I consider that the issue of a firearms licence to the Applicant at the current time would be contrary to the public interest and that the Application ought to be refused.
2. It follows that the correct and preferable decision is to affirm the Respondent's decision to refuse the Application.

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: 20 December 2024