Smith v Commissioner of Police, NSW Police Force

Applicant's case

1. The Applicant contends he should be granted a firearms licence because he is no risk to public safety as any mental health issues he may have had have resolved and he requires firearms to hunt recreationally with his father and his child.

Respondent's case

1. The Respondent contends the correct and preferable decision is to refuse the firearms licence application because granting a licence would not be in the public interest (relying on s 11(7) of the Firearms Act 1996 (the Firearms Act)) due the Applicant's history of mental health issues and his poor driving record.

Jurisdiction

1. The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 75 of the Firearms Act provides that applications may be made to the Tribunal for administrative review of a decision to refuse a firearms licence. The Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

1. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
2. The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act.
3. The Tribunal is required to base its findings of fact on logically probative material: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 and 68; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17].

Relevant Legislation

1. The underlying principles of the Firearms Act are set out in s 3 and include: (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…
2. Section 11 of the Firearms Act allows the Respondent to issue or refuse a firearms licence application relevantly providing: (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, and … (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.

Applicant's history

1. The Applicant has held a security licence for decades and at least 20 years in the past was permitted to carry firearms for the purposes of security work.
2. In March 2009 the Applicant was fined for negligent driving following an accident on 17 March. As a result of a welfare check carried out by NSW Police on 25 March the Applicant was forcibly hospitalised (the 2009 incident) and received treatment for his mental health. It was agreed the Applicant had a significant mental health episode at this time, although some of the details of the interaction between the NSW Police and Applicant are not agreed. It is sufficient to describe this as a time of significant stress in the life of the Applicant.
3. Disclosed in material obtained by the Respondent under summons, in oral evidence the Applicant confirmed an incident of attempted self harm in the late 1990s where he drank a litre of weedkiller at a difficult time in his life. At that time he was admitted to hospital for treatment including for his mental health. In the same circumstances, the Applicant also disclosed in oral evidence previous drug taking over an extended period of time including on occasion between the 2009 incident and 2016. The Applicant acknowledges it took a long time for him "to grow up".
4. The Applicant is a witness of credit. He answered questions with candour and did not seek to obfuscate or hide when evidence was not in his favour. He candidly described the significant challenges that have occurred in his life and the difficulties he has had seeking the correct medical treatment and advice over many years. He has taken steps to address his mental health since the 2009 incident and the Tribunal makes no negative inference regarding the Applicant's continued engagement, via mental health plans, with psychologists and/or counsellors as a strategy to maintain good mental health since 2009.
5. In the application to the Firearms Registry of the Respondent, the Applicant failed to disclose the previous incident of self harm by answering no to a specific question. The Tribunal accepts the evidence of the Applicant this was a mistake and was not knowingly false and misleading: see Hook v Commissioner of Police [2020] NSWCATAD 250 at [96].

Medical evidence

1. The Applicant applied for a firearms licence in March 2022. Given the 2009 incident, the Respondent requested the Applicant obtain particular information in the form of a risk assessment questionnaire from a psychiatrist or psychologist to address mental health concerns.
2. The Applicant first provided a letter from his treating psychiatrist, Dr Scott in August 2022 but was informed the letter was not sufficient. After some time the Applicant obtained a risk assessment report from Dr Williams of Distinct Directions Pty Ltd dated 12 July 2023. The report of Ms Williams was based on consideration of psychometric tests and an interview with the Applicant. Ms Williams left the Distinct Directions practice and her assessment was essentially adopted by Mr Jarvis in a letter dated 15 March 2024.
3. By letter dated 1 February 2024, the Applicant's treating psychiatrist Dr Scott provides support for the grant of a firearms licence to the Applicant, noting the Applicant was diagnosed with ADHD in 2022 and subsequent treatment has addressed the Applicant's anxiety. The letter discloses Dr Scott had reviewed the report of Ms Williams and states: I am aware and in possession of a copy a risk assessment completed by Madeline Williams dated 12 September 2023. I advised Jason to seek this after informing him I was unable to perform such an assessment myself. There is no evidence Jason poses a risk to others or to himself. There is no evidence of psychotic, depressive, antisocial or suicidal symptoms or ideation. I am aware of the historical incident of 2009, and consider this event, of now 15 years ago, to not carry current relevance to his psychological risk profile. …
4. The Applicant's treating psychiatrist and other medical practitioners were unable to provide information in the form requested by the Respondent, so the Applicant sought the report from Ms Williams. On the material before the Tribunal, particularly the specific evidence of Dr Scott and Mr Jarvis, I am satisfied the Applicant was not 'doctor shopping' and instead was attempting to provide the information sought by the Respondent.
5. However, the letter from Dr Scott and the assessment report of Ms Williams, as adopted by Mr Jarvis, do not reference the Applicant's self-harm attempt described at [19]. It was Mr Jarvis's evidence that such an incident could have the potential to impact on any assessment of the Applicant. On that basis those reports can be given little weight because the Tribunal is unable to be certain the medial practitioners were fully informed as to the Applicant's whole relevant history in providing their opinions: see Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311 at [44]-[51].

Public safety and risk

1. Under the Firearms Act, public safety is the primary consideration: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134. The interest of an applicant in obtaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at [69].
2. In Ward v Commissioner of Police [2000] NSWADT 28 Deputy President Hennessy said (at [27] - [28]): …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.

1. In addressing the assessment of risk an applicant is not required to prove a near-absolute negative, instead the assessment is to occur in a "nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety": see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 where the Tribunal discussed Ward and other authorities (at [64] - [66]).

Is it in the public interest for the Applicant to hold a licence?

1. The term public interest is not defined in the Firearms Act. In Constantin v Commissioner of Police [2013] NSWADTAP 16 the Appeal Panel stated (at [33]): The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.
2. The mental health of an applicant is a consideration in the context of firearms licences: see DEP v Commissioner of Police, NSW Police Force [2023] NSWCATAD 298 at [73]. As discussed at [26] above, the medical evidence before the Tribunal is such that the Tribunal cannot be satisfied the Applicant's mental health issues have fully resolved such that he does not pose a risk to himself or the public.
3. Further, the Applicant acknowledges he has a poor traffic record. While the majority of the many offences occurred more than ten years ago, in the past three years he has four speeding offences on his record, three occurring in 2022 and one as recently as February 2024. In April 2024 the Applicant was warned he was approaching the maximum limit for demerit points as a result of those speeding offences.
4. Given the Applicant's traffic record, the Tribunal must conclude he has demonstrated a disregard for the law and for regulatory schemes which are designed to protect public safety in relation to driving: see Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 at [81]. While the Applicant's driving record has improved, there has not been enough time pass since his last traffic offences. The Tribunal cannot be satisfied the Applicant would not pose a risk to public safety if granted a firearms licence on this consideration alone at this time.
5. Therefore, in all the circumstances, on the material before the Tribunal, it is not in the public interest under s 11(7) of the Firearms Act for the Applicant to hold a firearms licence.
6. It follows that the correct and preferable decision is to affirm the decision of the Respondent to refuse the Applicant's firearms licence.

Order 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: 13 August 2024