Rose v Commissioner of Police

Judgment (4 paragraphs)

[1]

The Applicant's submissions

The Applicant relies primarily on the report of Dr Vernon, being in his words, "a trained professional in the field of mental health" who is satisfied that he is not a danger to himself or to the public and to the fact that the Incident was a singular and exceptional occurrence in circumstances very different than he currently is in. In this regard, the Applicant drew the Tribunal's attention to his most recent medical treatments in pain management as described at paragraph 30 above which have "dramatically improved" and reduced his pain which was the source of his depression, insomnia and anxiety.
The Applicant also placed reliance on AML v Commissioner of Police NSW Police Force [2013] NSWADT 5 for the proposition that not every suicide attempt will justify a revocation of a firearms licence. In this regard, the Applicant contends that the evidence supports he does not pose a danger to the public nor himself because: 1. The Incident occurred approximately three years ago; 2. Since the Incident, he has not shown any symptoms of suicidal ideation and no symptoms of major depression; and 3. Dr Vernon, an expert in the field of psychology, attests that he does not pose a danger; and 4. He is a person of good character as evidenced by the character references the most recent of which document an improved attitude and outlook corresponding with his improved physical condition and pain management.
In the words of the Applicant: "I will never put my family through this again. Although my body is broke [sic], I've worked very hard to make sure my mind isn't"

[2]

REASONS FOR DECISION

This is an application by the Applicant seeking administrative review of a decision by the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (the Act) to refuse his application for a Category AB firearms licence.
The Applicant was first authorised for firearm possession in 2009 and was issued with a Category AB firearm licence for the genuine reason of recreational hunting/ vermin control. In 2014, the Applicant renewed his firearms licence for a five-year period such that it was due to expire on 14 August 2019. Additionally, since approximately 2014, the Applicant has held an unrestricted explosives licence.
The Applicant held a firearms licence continuously from 2009 until it was suspended by police on 18 January 2019. The circumstances of that suspension are described below. The Applicant continues to hold his explosives licence.
On 31 July 2019, the Applicant applied for a Category AB firearms licence. On 18 November 2020, the application was refused by the Commissioner under s 11(7) of the Act. Specifically, it was the Applicant's mental state which was the basis upon which the Commissioner said it was not in the public interest for the Applicant to hold a firearms' licence.
On 30 November 2020, the Applicant sought an internal review of the Commissioner's decision. That review was not concluded within the 21-day timeframe specified in s 52(6) of the Administrative Decisions Tribunal Act 1997 (ADT Act) and s 30 of the Civil and Administrative Tribunal Act 2013 (CAT Act) and was thereby treated as a deemed refusal.
On 7 June 2021 the Tribunal determined, on the papers, to affirm the Commissioner's decision: Rose v Commissioner of Police [2021] NSWCATAD 158 (the Previous Decision).
In July 2021, the Applicant appealed from the Previous Decision to the Tribunal's Internal Appeal Panel. On 8 October 2021, the appeal was heard, and a decision delivered instanter.
The Appeal Panel found that the appeal should be allowed and the Previous Decision set aside because the Applicant had not been given a proper opportunity to comment on a medical report of Dr Albert Law relied upon by the Commissioner as evidence of the Applicant's mental state.
The matter was remitted by the Appeal Panel for determination. This decision is that determination.

The Commissioner's submissions

In making the case that the Commissioner's decision to refuse the Applicant's application for a Category AB firearms licence under s 11(7) of the Act is correct and preferable, the Commissioner relied primarily on Dr Law's progress notes and covering letter on the basis that it "provides the most recent evidence of the Applicant's mental health". In respect of the evidence of Dr Law, the Commissioner submitted that: 1. Dr Law had been the Applicant's general practitioner since 29 December 2017 2. The Applicant has not expressed any suicidal ideation since 5 June 2019 3. During a consultation with Dr Law on 19 June 2018: 1. The Applicant reported intermitted thoughts of suicidal ideation; 2. Had considered shooting himself and had guns at home but denied having active thoughts of self-harm; 3. The protective factors included the Applicant's wife and that the Applicant did not have access to firearms (the Applicant's wife having the key to the gun safe); 1. During a consultation with Dr Law on 3 July 2018, the Applicant denied a current suicidal ideation; 2. During a consultation with Dr Law on 1 August 2018, the Applicant was negative and displayed a sense of hopelessness and helplessness; and 3. During a call with the Applicant's Case Manager on 9 and 18 January 2019, the Applicant expressed described having had suicidal ideation.
Additionally, the Commissioner drew the Tribunal's attention to the alleged limitations in Dr Vernon's report in that it did not provide evidence of the Applicant's current mental health and to the fact that "the Applicant has not filed any evidence of ongoing treatment or medical evidence which provides evidence of the Applicant's current mental state". In these circumstances, the Commissioner maintains that the Tribunal cannot be satisfied that there was "virtually no risk" to the public of issuing the Applicant with a firearms licence given the Applicant's mental health history.
In respect of the oral evidence given by the Applicant as to his recent medical treatment and progress, the Commissioner maintained that this evidence should not be accepted absent some form of medical report or documentation to verify it.
In these circumstances, the Commissioner submitted that the Tribunal could not be satisfied that the Applicant was receiving effective treatment for his depression and in respect of evidence of a period of stability, the evidence supported that this period of stability was for only approximately 18 months. This calculation, however, was based upon Dr Law's reference in his covering letter to 5 June 2019 as being the most recent instance of suicidal ideation. Relying on AML v Commissioner of Police NSW Police Force [2013] NSWADT 5; Allan v Commissioner of Police [2008] NSWADT 230 and ELU v Commissioner of Police [2020] NSWCATAD 277, the Commissioner contended that this period was insufficient to find that the Applicant had showed stability.

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Judgment (4 paragraphs)

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