Rial v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2022-10-14

Introduction

The Applicant was issued a Category AB Firearms Licence in August 1998 and held it almost continuously until 2 October 2020 when it was suspended. On 2 June 2021 the licence was revoked on the ground that it would be contrary to the public interest for the Applicant to continue to hold a licence. Following an Internal Review, the revocation of the licence was affirmed on 24 May 2022. The Applicant seeks administrative review of the revocation decision.

Incident which gave rise to revocation of the licence

On 2 October 2020, the police and ambulance attended the Applicant's property at Tumbarumba following the report of an incident and concerns expressed about the welfare of the Applicant. It was reported to the police that the Applicant and his adult son had a verbal argument and the Applicant had stated I don't know why I stay around, no one cares about me, I gave everything to you guys and I get nothing. It was reported that his son asked the Applicant whether he was going to do anything with his firearms and the Applicant stated, What, do you think I'm going to shoot myself? The son said, yes, I think you might. The Applicant said, Well, I'll just do that shall I? I'll shoot myself in the head. Will that make everyone happy?
The Applicant's son asked for his own firearms which had been stored at the location to be returned to him. The Applicant did this and said What, you think that's the only way to do it, if I was going to? The Applicant's son then attended at the police station and reported his concerns about his father to the police. The police contacted the ambulance service and both attended at the Applicant's property. The Applicant told the attending police that the comments had been made off the cuff and didn't mean anything. He said that he was afraid to do anything as he couldn't stand the sight of blood. The Applicant did not deny making the comments to his son as reported. The Applicant's firearm licence was suspended, and his firearms were seized. On 24 November 2020, the Firearms Registry asked the Applicant to provide a mental health assessment. A report was provided to the Firearms Registry on 27 November 2020 by a medical general practitioner. The Registry considered the content of the medical report to be inadequate and not to meet the requirements of the Registry's request for a mental health assessment.

Legislative framework

The general principles and objects of the Firearms Act 1996 (the Act) are set out in s 3 which provides, relevantly: 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
Section 24(2) of the Act provides that a licence may be revoked: (a) for any reason for which the licencee would be required to be refused a licence of the same kind, or … (d) for any other reason prescribed by the regulations. Section 11(3)(a) of the Act relevantly provides: (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.
Clause 20 of the Regulation prescribes that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licencee to continue to hold the licence.

Evidence

The Applicant provided a statement on 30 August 2022. He gave oral evidence in the Tribunal hearing and was cross examined.
The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act), and written submissions. The police officers were not required for cross-examination.
The Respondent produced a copy of the video taken by the NSW Police body-worn camera on 2 October 2020 at the Applicant's property and the Event Report compiled by the attending police. The video was played during the Tribunal hearing, and was consistent with the contents of the Police Event Report.
The Applicant said the video is only some 9 minutes in duration and the police were present for around 30 minutes. He initially speculated that it had been selectively edited and was not the full story. However, when asked if he was saying the video had been falsified or was untrue, he said no. When asked if other relevant comments had been unrecorded or omitted from the report, he was not able to remember anything to add or to contradict the records.
The Respondent produced the Firearms Registry request for a mental health assessment and the proforma document for completion by the treating mental health professional, that was sent with it to the Applicant on 24 November 2020. A comparison of the report provided by the Applicant's GP with the proforma document shows that it does not address almost all of the relevant questions.
I asked the Applicant if he had considered obtaining a detailed mental health report. He said he had made inquiries, but it was too expensive. He also said he and his wife had recently returned from an extended trip to Canada and that he was about to re-stock his farm with a purchase of new cattle. He said he had recently been involved in litigation over a caravan and that he was successful in that he was awarded the money owed to him and costs.
The Applicant said that he had done nothing wrong, that he was the victim in this matter, that he was involved in community service for over 55 years and his son was the problem, although the son had been very helpful during the recent bushfires.
The Applicant was questioned about becoming emotional when he was talking with the police and about his reported comments about shooting himself. He said variously, Yes, I don't have a clear recollection, Yes I don't recall, I still don't, Its on the video, I cant deny it, Yes I said there's other ways of doing it. The Applicant was shown Firearms Registry records of telephone calls between him and Registry staff. It was put to him that he became emotional during those calls, as he did when he began crying on the police video. He said he didn't recall crying. He agreed he became emotional in the telephone calls and said yes, that's right. I'm a temperamental person. It's just part of my nature.
I asked the Applicant if he disputed the contents of the police report and video. He said he could not remember and did not dispute them. I asked him if there was anything relevant that had not been recorded. He said the police telling me to go to the doctor.

Consideration and Findings

Public safety, including the Applicant's safety, is the primary focus of the public interest issue in the Act and of the Firearms Act generally. A discretion to make a decision in the public interest is not confined, except by the scope and purposes of the legislation itself. The discretion must be exercised to promote the objects of the firearms legislation.
The Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence: s 24(2)(d) of the Act and Clause 20 of the Regulation. "Public interest" is not defined in the Act or Regulation. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the "public interest" is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding how to exercise its discretion. The discretion is not confined except by the scope and purposes of the legislation itself and the Tribunal must exercise its discretion in a manner that promotes the principles and objects of the Act: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15] and Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23]. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. The public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP 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. 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].
The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum - see also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
I accept that the Applicant has no criminal record, is active in the community and that he seeks a firearms licence to manage the animals on his farming property. Private interests, however, are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. As the Tribunal has observed many times, this includes 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].
There are a number of examples of the Applicant's conduct over time which bear heavily upon the exercise of the discretion, and these relate to his mental health. He was involved in a verbal altercation with his son which led to his son seeking the assistance of the police. He did that because he was concerned the Applicant might self-harm. The police body-worn video shows the Applicant in a highly emotional state and he conceded that he had said words to the effect of I'm going to blow my head off. The Applicant conceded that he is temperamental and emotional, which fact is demonstrated by the video on 2 October 2020 and the telephone conversations several months later with Registry staff. The Applicant displayed similar emotional behaviour during the Tribunal hearing by interrupting, talking over and arguing with counsel.
The Firearms Registry because of this conduct asked the Applicant to obtain a mental health assessment by a psychiatrist or psychologist. The Registry provided a proforma document for the treating mental health professional to complete. That proforma is quite specific and detailed in its requirements and criteria for mental health assessment. The Applicant declined to obtain an assessment by a psychologist/psychiatrist because of the cost, while at the same time making apparently significant expenditures on a holiday in Canada and re-stocking his farm. Of course, his spending priorities are a matter for the Applicant but the failure to obtain an adequate mental health assessment is clearly his choice. The medical report from his GP that he got instead is manifestly inadequate, stating only that "He appeared well and exhibited an appropriate mental health affect and appearance today. There is no documented history of Mental Health issues …". The doctor makes no mention of the incident of 2 October 2020, nor does he address any of the risk factors specifically identified in the Registry proforma mental health assessment document.
In these circumstances, I consider the potential for self-harm is not a "minimal, fanciful or theoretical risk" and that revocation of the Firearms Licence is the correct or preferable decision. I find that the Applicant's circumstances are such that it would be contrary to the public interest for him to hold a firearms licence at this time.

Decision 1. The decision under review is affirmed.

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: 31 October 2022

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Judgment (7 paragraphs)

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Cases Cited (4)