AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5
Briginshaw v Briginshaw (1938) 60 CLR 316
Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Source
Original judgment source is linked above.
Catchwords
AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Hayes v Commissioner of Police [2022] NSWCATAD 234Heywood v Commissioner of police, New South Wales Police Force [2024] NSWCATAD 122Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117Keegan-Jaques v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 145Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315McDonald v Director-General, Social Services (1984) FCA 57, (1984) 1 FCR 354Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10Sterjovski v Director-General, of Transport [2002] NSWADT 10
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Watkin v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 393
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110
Zaroun v Commissioner of Police [2022] NSWCATAD 262.
Texts Cited: None cited
Category: Principal judgment
Parties: Mr Kyle W. Rush (Applicant)
Judgment (18 paragraphs)
[1]
Reasons for decision
The applicant Mr Kyle William Rush applied to this tribunal on 22 July 2024 for review of a decision by the respondent Commissioner on 26 June 2024 to refuse his application for a category A firearms licence. The applicant has never been licensed for firearms in New South Wales.
On 3 December 2013 he was convicted of assault occasioning bodily harm in Western Australia, following an incident that occurred on 3 September 2013 when he was involved in a bar fight and struck a man to the back of the head, causing him to lose consciousness and fall forward to the ground (fact sheet exhibit R3).
On 17 March 2021 police attended the 7/11 in Blacktown, where the applicant was observed to be extremely unsteady on his feet. When police approached his vehicle he began to cry, stating that he was struggling with his mental health. He said he was very stressed because his company recently had a job go wrong and the money was needed to keep paying staff and creditors. Police contacted a PACER clinician who reviewed him and concluded that he was not a threat to himself or to the public and therefore did not need to be scheduled under the Mental Health Act 2007.
The applicant's wife contacted police on 16 October 2022, as she believed he had been cutting himself with a knife while cooking dinner. When police arrived he was sitting on the front porch crying and said he was sorry and did not need police to attend. Police scheduled him under the Mental Health Act 1997 and conveyed him to Nepean Hospital for assessment. When searched before entering the ambulance, he was found to have a 15 cm blade in his pocket, a cooking knife that he had been using to prepare dinner.
The applicant had a poor traffic record that could be explained at least in part by an inability to focus his attention as he had been diagnosed with ADD as an adult. It also made it more likely that he would tend to act impulsively.
The applicant first applied for a licence on 3 March 2021 (exhibit R1, pp 38 ff), that application being mandatorily refused because of his assault conviction within the previous 10 years (id., 54 - 55). He applied again on 6 November 2023 (id., 43 - 45), that application also being refused on the same grounds on 13 November 2023 (id., 57). He applied for a third time on 3 March 2024 (id., 48 - 50), and that application was refused on 11 April 2024 (id., 58 - 59) on public interest grounds and because of a previous self-inflicted injury.
On 1 May 2024 the applicant requested an internal review of the refusal decision (id., 65 - 67), which was refused on 26 June 2024 (id., 97 - 101). He applied to this tribunal for review of that decision on 22 July 2024, and the matter came on for hearing on 3 December 2024.
[2]
Applicable legislation
Section 11(4)(b) of the Firearms Act provides that a licence must not be issued if the Commissioner (or on review this tribunal) has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of a previous attempt at suicide or causing a self-inflicted injury.
Section 11(7) of the Firearms Act stipulates that an application for a firearms licence must be refused if it would be contrary to the public interest for the licence to be issued.
[3]
The evidence
The respondent did not call oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1), and on cross-examination of the applicant's witnesses.
[4]
Mr Kyle Rush (applicant)
At the hearing the applicant adopted his statement dated 20 September 2024 (part exhibit A1) in which he declared inter alia that obtaining a licence was very important to him for a few reasons. His father is heavily involved in the sport of clay target shooting, and a licence would allow him to spend quality time with him. Furthermore, when he was a juvenile he was very much into the sport himself, and believes that engaging in it again would be very beneficial for him.
His applications had been rejected in the past for a number of reasons, including his driving history. He was ashamed of it and over the last six months had really within himself come to realize that this was something he needed actively to do better at. He is diagnosed with ADHD, which played a part; for example he was put on notice for speeding heading east between Lithgow and Katoomba, in a place where the speed limit dropped from 80 to 60 km/h and the road was very busy. In such a scenario he tended to hyperfocus on his proximity to other road users and not necessarily on the fact that he was now travelling at 75 km in a 60 zone. That was just one example, and he could offer more, his point being that he was not just flouting the rules of the road and in turn public safety, nor was he claiming he could not do better, because he can and he will continue to improve.
As regards mental health, during 2020, 2021 and 2022 he went through the most difficult set of circumstances he had ever faced. In 2019 he lost his mother, on whom he relied heavily for moral support and who was his best friend. Later that year he came to realize that his partner at the time had been cheating on him while they were in the process of moving from Sydney to Port Macquarie. He had been living and working in Sydney while his partner was supposed to be setting up their new business venture, a café restaurant. In 2020, his father fell very sick, undergoing major surgery, leaving the full weight of managing and growing the family business on his shoulders. In 2021 he lost his grandfather. That left him little or no room to look after his own well-being.
On 17 March 2021, he was in a very frustrated state which was heightened for several reasons. His grandfather's passing was clearly in the front of his mind at the time, which is what he told police. When asked by the psychologist Michael Kruger-Davis a few years later what was most prominent at that time, he said it was the financial stress they were going through and the stress brought on by the business. He had also called his girlfriend at the time to collect him. Had the police not been in the service station getting fuel at the time, he would simply have waited to calm down, as he was in the process of doing, and called his girlfriend (now wife) to collect him.
[5]
Mrs Sonia Rush
In oral evidence at the hearing Mrs Sonia Rush, the applicant's wife, adopted her statement of 16 June 2024 (part exhibit A1) in which she stated inter alia that she has been in a relationship with the applicant since 2019. During that period he had endured serious adversity, starting with the passing of his mother, and his father being diagnosed with cancer in the same 12-month period, and on top of that he had been running the family business with up to 15 employees.
She had read the police report and was fully aware of the reasoning behind the refusal of his licence, and having herself been a factor in more than one of those instances, she feels compelled to write that she was a contributing factor to how those events were portrayed, and was not proud of her own actions during those times. She also wanted to add that she did have a hysterectomy due to long-term health issues and was not acting normally in those instances.
As regards event E91841054, Kyle had been smoking meat that evening and was being very dismissive towards her when she asked him how he cut his hand. That enraged her and caused her to call an ambulance. As it turned out he did not need stitches. It is not unusual for Kyle to keep a cooking knife or other things in his pocket when he is using his smoker. When police arrived he did indeed start to cry and was very emotional, having at that point had a considerable amount of alcohol.
Turning to event E 1148789390, Mrs Rush stated that she "can be very toxic and jealous". The arguments arose from her holding Kyle to ransom over his gun licence and her undergoing menopause. While Kyle accepts her for who she is, she felt compelled to put that in writing and for the truth to be known.
He is a dedicated husband and father, and is responsible every day for the safety of his workers and members of the public, doing high risk work in public places. Admittedly he has a colourful driving record which is not proud of, and is trying very hard to be better in that regard. He is absolutely responsible enough to hold a firearms licence.
Asked about the 15 October 2022 incident, the witness said the applicant had been smoking [i.e. cutting and smoking meat] and drinking, and came in with a cut on his hand. "I'm a panicker", she said, always going to the worst-case scenario, and had called 000. Many people had come in response to the call and they had been overwhelmed. Her husband was very upset and had three cuts on his hand, which she had thought had resulted from self-harm. The previous day, he had cut his leg while working in the garage and she had told him to get the doctor to check it out.
[6]
The references
The applicant tendered five character references, including one from his brother-in law Mr Andrew Romeo, who writes that Kyle had always been there to support him and his family without hesitation. He would also be Mr Romeo's first contact if he needed a helping hand or in an emergency situation. He has always consistently led with his actions and stayed true to his word.
Mr Romeo had read the s 58 documents and sympathizes with him and Sonia, as the reports in no way reflect the true nature of Kyle or how responsible he really is. He bears enormous responsibility in his work and home life and has helped his wife through multiple challenging operations, which in turn affected her own mental health, Kyle taking it all in his stride, in a way which Mr Romeo did not know if he could do himself. He has no hesitation in saying Kyle is no risk to himself or the public holding a firearms licence.
Mr Tim Smith worked with the applicant for approximately seven years after he had moved from Western Australia and began working for Mr Smith's company. He had told Mr Smith that he was currently going through some issues about his firearms licence because of his driving record. He has been working on improving that. He regularly drives the company vehicles and they have seen a definite improvement in his approach to driving and adhering to the road rules.
During the time of his employment, Mr Smith had come to appreciate his qualities and demeanour towards others. He demonstrates a strong work ethic and dedication to his responsibilities. He is often responsible for multiple work crews in some very challenging situations, including high risk work activities, worksite traffic management and extreme work environments.
Kyle had made him fully aware of the reasons why his licence had been refused and he does not believe that the report is in any way a true representation of his ability to uphold the law in relation to firearms licensing. He always demonstrates honesty, trustworthiness, accountability and a willingness to go above and beyond to support friends and colleagues.
Mr Kym Menere writes that the applicant is not only a friend, but also a stakeholder in the company that Mr Menere manages. Over the years he has had the pleasure of working with the applicant's company, which has completed projects for the organization he works for within the aged care industry. He has always been a valuable asset to their organization. He acknowledged that Kyle had previously been confronted with challenges in his 20s, with the loss of his mother from cancer, the breakup of his relationship with his partner and the resulting separation of his sons because of their mother relocating within regional New South Wales.
[7]
The psychologist's reports
The applicant tendered two psychologist's reports prepared by a clinical psychologist, Mr Michael Kruger-Davis and dated 11 June 2024 (exhibit R1, pp 69 - 90) and 26 September 2024 (part exhibit A1) respectively. Their contents are outlined below.
[8]
Respondent's submissions
The respondent relied on the written submissions (exhibit R2) which, after setting out the background and the applicable law, referred to the reported self-harm incident or 15 October 2022 in which the applicant submitted that he was highly intoxicated and cut himself while using his smoker. The police records and summons material, however, describe that incident as being of a more serious nature and revealed that the applicant had engaged in self-harm.
The respondent submitted that the record of events in the s 58 material and the summons material should be afforded more weight than the summary of events provided in the initial and subsequent psychologist reports, or the applicant's own statements. That approach is consistent with the approach taken by the tribunal in Heywood v Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 122, [88], where the tribunal preferred the contemporaneous COPS event reports to the evidence of the applicant.
Having regard to the relative recency and severity of the event described above, and the evidence held by police in relation to it, the respondent submitted that the tribunal could be satisfied that the applicant did attempt to cause a self-inflicted injury and that a licence should be refused in accordance with s 11(4)(b) of the Firearms Act.
Noting the authorities on the public interest criterion in s 11(7), the respondent contended that the licensing scheme set out in the Firearms Act is not about punishment but instead about the protection of public safety. In making a decision to refuse to grant a licence, the tribunal was required to identify the possible risks to the public and to make decisions that are consistent with the reduction of risks to a minimum.
The applicant's conduct that gave rise to the charge for assault occasioning bodily harm in Western Australia was not conducive to the safe use and possession of a firearm. The assault was significant: striking a stranger in the head and causing him to lose consciousness was a serious offence. On that basis, the tribunal could not be satisfied that there would be virtually no risk to public safety should the applicant be in possession of a firearm.
The assault charge had resulted in a 10-year mandatory exclusion period from obtaining a licence, pursuant to s 11(5)(c) of the Act. While the exclusion period concluded in 2023, in the intervening period there have been three incidents involving the applicant in which he was suspected of being engaged in suspected domestic violence involving his wife. In Zarour v Commissioner of Police [2022] NSWCATAD 262, [46], the tribunal had said that while the applicant's 10-year disqualification period had expired, the evidence showed that his history of aggression and domestic conflict posed a risk to public safety. The risks included verbal aggression in both public and private settings and threats of self-harm in the context of domestic conflict.
[9]
Approach
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the Civil and Administrative Tribunal Act 2013 (CAT Act) (s 30) and the Firearms Act, including the Commissioner's refusal of a licence or permit: s 75(1)(a). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3)(a) states that a licence must not be issued unless 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". Section 11(4)(a) also provides that 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 the applicant's way of living or domestic circumstances.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
[10]
Self-harm: s 11(4)(b)
This provision states that 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 "any previous attempt by the applicant to commit suicide or cause a self-inflicted injury".
The tribunal explained in Watkin v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 393, [68] - [69] that the provision is to be applied by reference to an applicant's prior conduct. A prior attempt can be an indication of possible future action of the same kind that might compromise the applicant's exercise of continuous and responsible control over firearms.
At the same time, AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 established "that not every suicide attempt will justify licence revocation [or refusal]. It is necessary to assess the likelihood of future self-harm, and if that happens, the likelihood that a firearm will be used": Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315, [40].
[11]
Main incidents
The 17 March 2021 incident (E 81301616) arose because police at a 7/11 observed the applicant to be unsteady on his feet and later sitting inside his vehicle. When police approached, he immediately began to cry and said he was struggling with his mental health. He was intoxicated and informed police that he had drunk half a bottle of Fireball liquor. A police clinician attended and concluded that he did not need to be taken to a mental health facility in accordance with s 20 of the Mental Health Act. He did not state that he wanted to self-harm, nor did he make comments related to suicide. Police did not believe that he was a threat to himself or the public at that time.
The applicant agrees that he had been struggling at that time, coping with problems of finance and dealing with his grandfather's death. He had consumed half a bottle of Fireball that had been given to him and was not proud of his behaviour, but was having a hard time. The police had noticed his condition only because they had come into the 7/11 to refuel their vehicle. His intention had been to call his girlfriend (now Mrs Rush) to ask her to come and collect him. He is no longer suffering from financial stress as the business has been doing progressively better over the past 14 months. He is also better equipped to deal with problems that arise.
Of more concern is the 15 October 2022 episode. Police were called to the applicant's address at Silverdale in response to a call from Mrs Rush who thought he had locked himself in the bathroom and had been cutting himself with a razor and a knife (E91841054). On arrival they found him on the front porch crying, intoxicated, apologizing and saying that he did not need police there. Paramedics arrived shortly afterwards and scheduled the applicant under s 20 of the Mental Health Act. In his pocket they found a 15-centimetre knife.
The Nepean Hospital mental health assessment corroborated that account and noted that the ambulance had been called because the applicant had cut himself to deal with emotional distress. The results of the assessment noted that he had been "seen and cleared by TAC" and "cleared by psychiatry". The summons material recorded that he had cut his hand three times (exhibit R2, attachment A, p 8).
The applicant said he had been wrong to put his wife, who had made the call, in that position. He had been drinking, but not over a 48-hour period as had been recorded by the paramedics (id., 3). He should not have been preparing meat in his highly intoxicated condition and had accidentally cut the back of his hand. But there had been no suicide attempt - he has two children and a wife and would never consider it. He had not locked himself in the bathroom but became emotional because so many police and paramedics were approaching.
[12]
Traffic record
The applicant has a poor driving record, having accumulated 22 violations between 2017 and the present, including speeding, use of a mobile telephone while driving and disobeying traffic signals. He had previously explained that his non-compliance in that regard resulted from his ADHD diagnosis as he tended to hyperfocus on his proximity to other road users and not necessarily on his speed in relation to the posted maximum.
He said in his statement that he is very shameful about his driving record and over the last six months had really within himself come to realize, after his licence had been suspended for failure to complete a Driver Education Course, that this was something at which he needed to do better. He had failed to attend the course initially because of heavy work pressures, as he had been working 12-hour shifts, but he did complete the course on 19 April 2024 (exhibit R1, p 68), and is now doing much better in that regard. He was, however, involved in a further violation, driving at not more than 10 km/h over the limit, on 17 June 2024 (id., 11).
[13]
The Kruger-Davis reports
Mr Michael Kruger-Davis's report dated 11 June 2024 (id., 69 - 90) followed a series of seven interactions and telehealth videoconferences between 13 April 2024 and 10 June 2024, including a talk with the applicant's wife. The 22-page report embodied eight different psychological assessments, including mental status examination, suicide risk assessment, self-reporting questionnaires and the video-conference interview on 6 May 2024.
The report is very detailed and concludes inter alia that:
In my expert opinion, when Mr Rush answered questions regarding his background, the concerns the NSW Police raised in the refusal of his firearms licence, and the mental status examination and suicide risk assessment, I found his narrative to be truthful and honest and I could not detect any indications of any intent to deceive or otherwise influence the substantive effect of my report.
From the information provided above, it is my professional opinion, that Mr Rush is of sound mind and would be able to continue to exercise rational judgment and responsible control over the possession and use of firearms.
It is my professional opinion, Mr Rush is very unlikely to pose a threat to the public or himself, if he were to possess or use firearms.
The respondent submits that the report merits little weight, especially because it states that "He does not have any criminal convictions….." (id., 72). In the later report dated 26 September 2024 Mr Kruger-Davis explains that incorrect statement making no reference to the 2013 conviction as having been the result of a misunderstanding. He notes that the applicant has no recent criminal convictions (less than 10 years ago) or hold any criminal associations. "Mr Rush does have a criminal conviction. This was discussed in our videoconference interview. Mr Rush stated that he had disclosed this to the Firearms registry in his initial application, however because this was not included in the information originally requested by the Firearms Registry, it was not deemed by me to be significant".
The respondent also criticizes the fact that the report does not refer to the incidents of 19 January 2023, 21 May 2023 and 8 January 2024. As Mr Kruger-Davis was not required for cross-examination, it is not possible to know whether they were discussed with the applicant and whether the psychologist considered them revealing or relevant. At all events, those incidents did not involve any acts or threats of self-harm by the applicant or (apart from a reference to "pushing and shoving", which the applicant denies) any violence or threatened violence.
[14]
Evaluation - self-harm
Born in Belfast, Northern Ireland, the applicant is a man aged 33 who lives at Badgery's Creek with his wife and two children. He is qualified as a plumber but works full-time as the operations manager for the family company, which requires him to operate heavy machinery, sometimes in potentially dangerous worksites.
His record contains a conviction in Western Australia in 2013 for assault causing bodily harm resulting from a bar brawl, but no other criminal charges or any adverse notices for violence or threatened violence towards others. This is not a case similar to Zaroun, where the 10-year disqualification had expired but the applicant had an ongoing reputation for aggressive and violent behaviour.
He was diagnosed with ADD as an adult in Western Australia, but that condition is managed without medication, using coping skills he has been taught and to which he has diminishing recourse as the condition is of declining severity. He does not suffer from any other mental disorder, but has been involved in some incidents that have been outlined above.
The first occurred on 17 March 2021 when he was observed by police at a 7/11 to be in a mentally distressed condition because of financial and work problems. In his conversations with police he did not speak of self-harm or make any comments that could be viewed as suicidal ideation. A police clinician who evaluated him determined that he did not need to be taken to hospital and required no treatment.
Then on 15 October 2022 the most important episode occurred. According to the event report (E 91841054, exhibit R1, pp 21 - 22), his wife telephoned police saying that he had locked himself in the bathroom and was cutting himself with a razor and a knife. When police arrived they found him sitting on the front porch of the house crying, denying that he had attempted to cut himself and saying he was sorry and he did not need police there as he was "okay" and "all right" (exhibit R2, pp 3,8). He had a 15 cm branded kitchen knife in his pocket. As he was unwilling to go to hospital, he was scheduled under s 20 of the Mental Health Act and taken to Nepean Hospital, where he was discharged after evaluation. He had three cuts on the back of his hand, which did not require sutures.
His evidence was that he had been drinking heavily (although not over a 48-hour period as was stated in the ambulance record) and should not have been cutting meat for his smoker in that condition. He had accidentally cut the back of his hand in three places, but it was not intentional and was not an attempt at self-harm. He had become emotional when so many police had arrived.
[15]
Public interest
The other ground on which the respondent argues for licence refusal is that it would be contrary to the public interest for the applicant to hold a licence, within the meaning of s 11(7). In this case that ground overlaps with the ground under s 11(4)(b), that there is reasonable cause to believe that the applicant might not personally exercise continuous and responsible control over firearms because of any previous attempt by the applicant to commit suicide or cause a self-inflicted injury.
The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to 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.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [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 under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police [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. "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" (at [7]).
[16]
Orders
1. Decision under review set aside.
2. A category A firearms licence is to be issued to the applicant.
[17]
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
[18]
Amendments
03 January 2025 - Orders: Coversheet; End of Decision; Para 1 - Category of Firearms Licence amended.
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: 03 January 2025
Parties
Applicant/Plaintiff:
Rush
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
As regards 16 October 2022, it was a Saturday night and he was indeed highly intoxicated in his own home. Once or twice a year he does drink beers and fire up his smoker [a slow-cooking barbecue apparatus] and cook through the night, which at the time was his only hobby. He did cut himself while smoking and was very dismissive to his wife. He does not know exactly what he said to police or why he started to cry, but does know that he was very overwhelmed by their presence. He had absolutely no idea that his wife had called the ambulance and the next minute there were multiple police inside their property. He does not believe that he intentionally concealed a cooking knife on himself, but he understands how that could be a bad reflection on himself.
The comments regarding the psychologist Michael Kruger-Davis's report portray him as being elusive or intentionally deceitful about those matters. He talked to the psychologist about both those events and the account he gave him does not match the police report completely. He believes that is because he remembers little of the events, having spent the last three years looking forward, taking care of his head space, and seeking out healthy positive relationships. Being a good father, husband and worker are all that really matters to him, so if he came across as being deceitful, he does apologize, as until he read the latest refusal letter, he had no further recollection of the event. He believes Mr Kruger-Davis's report is a true reflection of his mental health.
He is a very simple family man with no proclivity for violence or self-harm. His children and family are his life. He has paid a substantial amount of money to get to this stage of the application, which to his mind would indicate that he has no ill intentions nor is at any risk to himself or any other person if he obtains a firearms licence. He is driven to succeed with the family business for one simple reason, his children, so as to give them the opportunities he had as a child, operating excavators and tractors et cetera. He is not at all the person the police have seen on these unfortunate instances.
In evidence in chief at the hearing the applicant added that he was born in 1990 and was 23 in 2013. He was younger and he admitted that he had done wrong, but had learned that he needed to improve. He was very sorry for the offence, which was uncharacteristic for him and he had pleaded guilty. He had no other charges. He wanted a firearms licence so that he could return to the sport of clay target shooting with his father, and by so doing repay in part what his father had done for him.
Cross-examined by Ms Tipene, he admitted having had 20 interactions with police since 2017, and until he had lost his driver licence, his record was bad, but after it was suspended, he had learned that he needed to do better and had done so, completing an RMS Driver Education Course on 19 April 2024 (exhibit R1, p 68). He had incurred some fine defaults, including on a fine payment plan, at a time of financial uncertainty when his business was starting out and he was unable to pay. He had a heavy work schedule, with 12-hour shifts, usually in the country. He had never exceeded the speed limit when there were children in the vehicle, but he did incur one contravention when he was driving with his mobile telephone resting on his lap. He had intended to defend the matter.
As regards the incident on 18 March 2021 (id., 18), it had been a time when he was struggling because of financial problems and his grandfather's death. He had a bottle of Fireball liquor [flavoured whiskey] that had been given to him. His financial situation had improved progressively over the last 14 months as the business became established and he was no longer under financial stress. He had grown up and was now better equipped to deal with any problems that occurred.
Concerning the incident on 16 October 2022 (id., 21), he had been highly intoxicated in order to "blow out" and became emotional because there were so many paramedics and police approaching him. He could be dismissive when he was drunk and had been so while preparing the meat in the smoker. His wife had called the ambulance. He had been wrong to put her in that position and should not have been preparing meat in that intoxicated state. There was no suicide attempt, however. He has a wife and two children and would never consider it. He was not locked in the bathroom.
The ambulance record stated that he had been drinking over the past 48-hours periodnand had cut himself the previous day to the point of needing sutures in his right leg (exhibit R2, p 3). He had been drinking, but not overnight, and not over a continuous 48-hour period. His right leg had needed stitches because he had fallen over in the workshop on the previous day. His hand had needed no stitches.
The ambulance request for a mental health assessment said that he had "cut himself to deal with emotional distress" (id., 8), but he had not intentionally cut himself. The knife in his possession had been for cooking purposes. He had been distressed, but not until the ambulance arrived.
On 19 January 2023 (event E 76708671, exhibit R1, p 23) it was he who had called the police, as his wife was hitting the walls. It was two weeks after they had been married, but the house was full of relatives, some of whom had come from Ireland and had stayed for 6 weeks. They had not been able to have any time alone, and some family members were drinkers and hard to handle. An argument broke out with his wife and it escalated, but he should not have called the police. His wife had experienced a number of medical complications at the time. She had indeed hit the door, but he was not sure that she had caused significant damage.
On 21 May 2023 (event E 77845043, id., 26), his wife had called the police. They had had an argument, and she had left the scene to stay with a friend, but he had never pushed or shoved her. Now he drinks to the extent of exceeding the PCA limit only about once a month. They will have some wine every week, but not enough to be over the limit.
An argument on 8 January 2024 (event E 1148789390, id., 34) had involved threats to call the police and she had left to stay with her sister because they had a firm rule of never arguing in front of the children. Now they have a mutually supportive relationship and would only have an argument about once a year.
In relation to Mr Kruger-Davis's report of 11 June 2024 (updated in September), he had met the psychologist on Zoom (id., 69). He had filled in a number of forms and they then had a long talk. He had supplied the background information (id., 71 - 72) and had told him about the 2013 charge. There had been no discussion about it because he had told him. As regards his driving history, he had explained to Mr Kruger-Davis that when he moved from Western Australia to New South Wales he did not take account of some of the differences in the road rules.
He said he had been diagnosed with adult ADD and as a result had been likely to act impulsively. He had been struggling with his concentration at the time and was prescribed Ritalin. He had learned ADHD coping strategies, (which include but are not limited to, keeping a diary) which he still uses, but he does not use them as intensively now as there is no longer a need to do so. At one stage he had laboured under a fragile mental state because of loss, grief and stress, but in the last 12 months has had stronger mental health, coupled with support from his wife and help from business associates. He now feels "great".
He had not locked himself in the bathroom and had been outside on the porch when police and the ambulance arrived. Now they are getting on very well. Her hysterectomy had affected her, and her husband had had issues, but now they are a strong and happy couple.
In cross-examination she said she had thought the cuts on his hand had resulted from an attempt at self-harm because of her tendency to go to the worst-case scenario. There had been nothing of that nature previously.
The applicant acknowledges that he could have handled situations in a more mature manner, but his maturing has been gained with age and that is now demonstrated by the success of the family business and the close relationship he has with his boys. He now accepts his wrongdoings and is an exceptional individual who has made a positive impact on the lives of those around him, and has also been a good role model for his two boys. He believes the applicant will continue to make valuable contributions within the community and his family, and society as a whole. Mr Menere hoped his comments would be taken into consideration in deciding whether he should be allowed to access a gun licence.
Mr Geoffrey Menere has known the applicant as a friend for over five years and supports his being allowed to obtain his gun licence for recreational use. For the five years he has known Kyle, he has always displayed a mature nature and has always been hard-working and an excellent role model to his two boys. Mr Menere believes he would use the licence in a mature and safe way, in line with the gun licence laws. His past errors have allowed him to reflect on his wrongdoings and to ensure that such behaviour is not recurring. He supports the application for a firearms licence.
Mr Glenn Rush, the applicant's father, has read the s 58 documents and is disappointed that his son and daughter-in-law called the police and ambulance when they could have called him and avoided all of this. That, however, is in no way a true reflection on Kyle's attitude towards himself, his family and the safety of others. He is his mother's son and would always care more about others than about himself, to his own detriment at times.
The passing of his mother, his own sickness and taking a step back from the family business did lead Kyle to face some extreme adversity. Mr Rush has himself owned firearms for his entire life and feels more than qualified in this particular situation to assess that Kyle is absolutely no danger to himself or the public if he holds a firearms licence.
Police documents demonstrated that the applicant's character or conduct had not sufficiently changed in the intervening 10-year period, such that the grant of a licence would not be contrary to the public interest. The applicant's history of mental health concerns and self-harm indicated that he is not fit to hold the licence at this time and that the granting of such a licence would not be in the public interest. An insufficient period of time has passed since the incidents of self-harm for the tribunal to be satisfied that there is virtually no risk to the public safety, including the applicant's own safety, should he hold a firearms licence. A period of 15 months from the date of an applicant's suicide threat would be an inadequate period of time for the tribunal to be satisfied that there was virtually no risk, despite a psychologist's report indicating that the risk posed by the applicant was low: Allan v Commissioner of Police [2008] NSWADT 230, [33] - [34].
The respondent submitted that the two psychologist's reports prepared by Mr Michael Kruger-Davis on 11 June 2024 and 26 September 2024 respectively merited minimal weight because the initial report related that the applicant did not have any criminal convictions, which overlooked his conviction of assault occasioning bodily harm in 2013. His subsequent report clarifies that the applicant does not have any recent convictions (less than 10 years) but does have a criminal conviction, which was discussed in their videoconference interview. The applicant had stated that he had disclosed that to the registry and his initial application, but because that was not included in the information originally requested by the registry, Mr Kruger-Davis deemed it to be not significant.
Further, the initial report did not refer to the events of 19 January 2023, 21 May 2023 or 8 January 2024. The version of events contained in the reports differed significantly from the material provided in the s 58 documents and the summons material. Thus, the version of events on 15 October 2024 summarized in the report did not record that the applicant was locked in the bathroom at the time police attended and contradicted the reports that he had been cutting himself with a razor and knife, besides failing to describe the serious injuries that were treated on his admission to hospital. Consequently, and because so many of the conclusions in the reports relied on the applicant's self-reports, the two reports merited minimal weight.
The respondent acknowledged that there is currently minimal case law considering what, if any, impact ADDADHD has on a person's ability to hold a firearms licence. In Mikhail v Commissioner of Police [2022] NSWCATAD 73, [73], however, the tribunal noted a psychologist's opinion that adult ADHD could cause attention problems that could affect impulse control, although the effect could also be to make them more risk-averse. In this case the respondent noted that the applicant's ADHD had been cited as the cause of an inability to focus while driving and frequent disobedience of road rules. That raises concerns about his ability to exercise his attention if he were to be in possession of a firearm.
The respondent pointed out that between 21 December 2017 and 18 June 2024, the applicant had accumulated at least 20 traffic contraventions. That history should be given significant weight, as was done in Keegan-Jaques v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 145, [81].
In oral submissions at the hearing Ms Tipene added that the correct and preferable decision was licence refusal, because of the instances of self-harm (s 11(4)(b)) and on public interest grounds (s 11(7)). His past self-harm conduct was a guide to probable future conduct, especially as he had been scheduled under the Mental Health Act because of those acts.
As regards the public interest, the applicant had committed a serious offence in Western Australia in 2013 and while the disqualification had expired, he had been the subject of three police interventions and an instance of hospitalisation. He argued that he had learned to conduct himself responsibly while driving, but his poor traffic record is relevant. He had produced a number of references, but only one of them mentioned the key events. The psychologist's reports were based on self-reporting and did not afford a persuasive picture of his current state of mind. They did not carry significant weight.
But he had not intentionally cut himself. He was distressed, but not until the police and ambulance had arrived. The knife in his pocket was the one he had been using for cooking. He had a cut on his leg (ibid.) caused by a fall in the workshop/garage the previous day which his wife thought required medical attention and for which he did later receive some sutures. The cuts on the back of his hand did not require stitches. He had been discharged from hospital after assessment.
Mrs Rush's evidence was that Kyle had been smoking meat that evening and was very dismissive towards her when she asked him how he had cut his hand. "[T]his enraged me and caused me to call an ambulance". It was not unusual for Kyle to keep a cooking knife or other things in his pocket when he is using his smoker. In oral evidence she explained that she is "a panicker" who always goes to the worst-case scenario. When she saw the three cuts on his hand, she had thought they might have been the result of self-harm and called 000. The previous day he had accidentally cut his leg in the garage and she had advised him to arrange for a doctor to look at it.
He had not locked himself in the bathroom but was sitting on the porch when police and ambulance arrived, but the number of people arriving had overwhelmed him and he had become very upset. Her hysterectomy had also affected her own state, and Kyle had had issues, but they were now a strong happy couple and getting on fine.
There were also some lesser incidents. On 19 January 2023, police attended the applicant's house after he had called police because his wife was hitting the walls. This was two weeks after they had married, but they had not had any opportunity to be alone because the house was still full of relatives and guests. Some family members had come from Ireland and had stayed six weeks. They were drinkers and some of them were difficult to get on with. An argument with Mrs Rush ensued, which escalated as she had been suffering from medical complications.
On 21 May 2023 Mrs Rush had called police in the course of an argument, but he denied pushing or shoving her as alleged. They had also argued on 8 January 2024 and threatened to call the police on each other, Mrs Rush proceeding to stay with her sister because they had a firm rule about not arguing in front of the children. In her statement she wrote that "I can be very toxic and jealous, these arguments arose from me holding Kyle to ransom over his gun licence and us going through menopause. While Kyle accepts me for who I am I feel compelled to put this in writing and for the truth to be known". On each of these occasions the applicant and his wife told police that they were engaged in an argument and did not wish to make a statement to police.
The respondent submitted that, following Hayes v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 234, [51], the psychologist's reports merited little weight as many of their conclusions relied on the applicant's self-reports. Self-reporting, however, is a common characteristic of such reports and according to evidence in other cases, psychologists claim to be able to detect attempts to mislead by using accepted techniques such as asking the same question in different ways. Reconciling an applicant's own account with official records when, as here, there is a conflict, is a matter that could be explored with the expert witness, but In this case, as was noted above, the expert was not cross-examined.
In his later report dated 26 September 2024, Mr Kruger-Davis maintains that his original formulation of the applicant's mental status in June 2024 was accurate given the information he provided, the information from the Firearms Registry and the information from the Nepean Hospital. He states that the applicant presents to be of "sound mind and does not currently present with depression, anxiety or overwhelming psychological distress. He does not have a mental disorder, personality disorder, PTSD or substance abuse disorder as listed in the [DSM-V].
This report draws attention to the following points:
the applicant was diagnosed with ADD as an adult when he lived in Perth. That is being managed effectively without medication
He drinks alcohol moderately and does not take illicit or prescribed drugs that would impact on his ability to possess and use firearms. He operates heavy machinery for a living and is often subject to drug testing when entering worksites.
He does have a criminal conviction (the 2013 charge) that was discussed in their video conference interview. For the reasons given above, Mr Kruger-Davis did not consider it to be significant but stresses that the applicant did not withhold that information or try to discount the significance of the psychologist's knowing about it.
He does not pose a suicide risk and has a number of sound protective factors that indicated he is looking towards his future.
There are currently no factors that would indicate that he would not be able to continue to exercise willpower and continuous control if he were authorized to possess and use firearms. He does not hold any anti-government or conspiratorial beliefs.
The predisposing, precipitating and perpetuating factors relating to the 17 March 2021 incident no longer exist and are not likely to recur in the future. At the time it was appropriate for the police to be concerned, but the police clinician obviously was not, as the applicant was not scheduled.
When he was scheduled on 15 October 2022, he presented at the emergency department and was cleared by the TAC team at the hospital, and by psychiatry, and was sent home immediately after consultation. There was no referral, follow-up or cause for a safety plan.
The report reaffirms the conclusion of the earlier report, that the applicant is of sound mind and would be able to continue to exercise rational judgment and responsible control over the possession and use of firearms. He was very unlikely to pose a threat to the public or himself if he were to possess or use firearms.
Mrs Sonia Rush testified that he had been smoking meat that evening but was very dismissive towards her when she asked him how he had cut his hand. "[T]his enraged me and caused me to call an ambulance…. It is not unusual for Kyle to keep a cooking knife or other things in his pocket when he is using his smoker. When police arrived, yes, Kyle did start to cry and was very emotional and had at that point a considerable amount of alcohol". She said that she is inherently liable to focus on the worst-case scenario and had thought his cuts could have resulted from self-harm. He had not, however, locked himself in the bathroom. At that time her own emotional stability had been affected by menopausal factors.
At the relevant time the applicant was working with a knife cutting meat for cooking in his smoker. He had been drinking heavily and admits that he should not have been using the knife in that condition. He said he had cut himself accidentally and had not intended to do so or to commit any act of self-harm. The fact that the three (apparently relatively shallow) lacerations were on the back of his hand, not the front, supports his claim that the injuries were accidental.
Mrs Rush called 000 when she became infuriated at his dismissiveness towards her when she asked him how he had cut his hand. Her anger, coupled with what might be called a catastrophizing tendency, caused her to describe the cuts as the result of an attempt at self-harm, a version of the events that the applicant has consistently rejected. I conclude that the episode on 15 October 2022 was not an attempt by the applicant to self-harm, and I so find.
There were also incidents involving police intervention on 19 January 2023, 21 May 2023 and 8 January 2024 arising out of domestic arguments. None of the incidents involved threats of self-harm or acts or threats of violence and the parties told police that they were having an argument and did not wish to make statements to the police. Both spouses declare that they now enjoy a stable and mutually supportive relationship. The three lesser occurrences mentioned do not in my view merit significant weight.
The respondent also draws the tribunal's attention to the applicant's significant traffic infringement history (see exhibit R1). The applicant accumulated 22 traffic contraventions between 2017 and the present, including speeding, use of a mobile telephone while driving and disobeying traffic lights. He states that he is ashamed of his driving record and over the last six months had within himself come to realize that this is something he needs actively to do better at. His conduct did not stem from any flouting of the law but had resulted in part from his ADHD, which caused him to hyperfocus on his proximity to other road users and not necessarily on the posted speed limits.
He had completed a Driver Education Course on 19 April 2024 (exhibit R1, p 68) and while he did have a low-range speeding violation on 17 June 2024, his record since then has substantially improved. Mr Tim Smith explains in his character reference that the applicant regularly drives vehicles belonging to his (Mr Smith's) business and he has seen an observable improvement in the applicant's driving.
The applicant's traffic record does not in my view rise to the level of justifying licence refusal or of indicating an unwillingness to abide by laws aimed at securing public safety. In his work he has to operate heavy vehicles and machinery and is subject to random breath tests on some worksites, and there is no evidence of any disregard of safety in that role. He has tendered five character references that are highly supportive, including with respect to his observance of safety standards.
In light of all the evidence I therefore conclude that neither the reports of self-harm nor the applicant's traffic record warrants refusal of a firearms licence, and I so find.
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, [64] - [66] 66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [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". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
The matters considered above in relation to the self-harm reports are also relevant to the question of public safety and therefore of public interest, and the evidence leads to the same conclusion. Ms Tipene drew attention, however, to the applicant's condition of ADD/ADHD and while acknowledging that there is currently minimal authority on what impact, if any, ADHD would have on a person's ability to hold a firearms licence safely, noted the tribunal's remarks in Mikhail v Commissioner of Police [2022] NSWCATAD 73, [73]:
Also material was the psychologist's acknowledgement in oral evidence that while ADHD is regarded as a childhood disorder by the DSM-5, some adults also have attention problems that could affect their impulse control, although the effect could be to make them more risk-averse. The applicant's current mental state was entirely satisfactory, but it was difficult to make any firm prediction about how people will behave in the future. The applicant's situation could change if there were some alteration in his life circumstances, such as the development of alcohol or drug problems.
In this case the psychologist recorded that while the applicant had been diagnosed with ADD as an adult, "this is being managed effectively without medication" (exhibit R1, p 21). The applicant declared that the coping strategies he had learned had enabled him to master the condition and that he had increasingly less need to make use of them as the condition was of diminishing significance. His Driver Education Course had also helped him in that regard. While at one stage he had been prescribed Ritalin for ADD, he now manages the condition without medication. In his work as operations manager of the family company he operates heavy machinery, sometimes in hazardous work sites, without any adverse incidents or observations. On the evidence available to the tribunal, ADD/ADHD does not constitute a safety risk in this case.
In light of all the evidence I conclude that if the applicant had access to firearms he would not present any real or appreciable risk to public safety, as understood in Webb, and that it would not be contrary to the public interest for a licence to be issued to him. I so find. The decision under review is to be set aside.