Spinks v Commissioner of Police

Issues for the tribunal

1. The role of the tribunal is to review the merits of the decision by the Commissioner for Police to revoke the applicant's firearms licence. In undertaking such a review, the following issues arise: 1. whether there are concerns for the applicant's domestic situation; 2. the applicant's history of holding a firearms licence; 3. whether there are concerns for the applicant's mental health; 4. whether, in completing his application for a firearms licence, the applicant provided misleading information; 5. whether the applicant has displayed intimidating behaviour towards others; 6. whether the tribunal can be satisfied that the applicant poses virtually no risk to himself or others if he were to possess firearms; 7. whether it is in the public interest for the applicant to hold a firearms licence.

Are there concerns for the applicant's domestic situation?

1. On 11 November 2020, Mr Spinks and his wife, Mrs Spinks, had an argument which involved discussion of a marital separation. The couple's seventeen-year-old daughter, who was in the house at the time, thought she heard her father say, 'would you be happy if I took my own life?' She also heard her father go to the study where she thought he might be looking for keys to the firearms safe. At school the following day, the daughter was upset about her parents' possible separation and was taken to see the school counsellor. When the daughter confirmed that her father had firearms, the school counsellor, a mandatory reporter, accompanied the daughter to the police station. Mr Spinks' firearms were subsequently seized by the police.
2. In evidence to this tribunal, Mr Spinks agreed he had been upset that evening but denied having been suicidal. He also denied having looked for keys to the firearms safe, noting that the keys were not kept in the study and that only he and Mrs Spinks, who holds a firearms licence, were aware of their location.
3. In a statement provided in these proceedings, the daughter confirmed that she had not seen her father with a firearm that night. She denied telling the school counsellor that she was in fear and denied any violence having occurred. She confirmed that she had never been told the location of the keys to the firearms safe.
4. Mr Spinks and Mrs Spinks subsequently separated, initially under the same roof. In police records contained on file, a follow-up note dated 25 November 2020 confirms that the couple had 'beg[u]n the process to separate and both state that things are amicable. The daughter was happy and felt comfortable with the decisions her parents have made.'
5. Mrs Spinks has provided a letter in support of her former husband in which she confirms that couple had argued on the night in question after she advised him she wished to separate. In relation to Mr Spinks' comment 'I may as well go and kill myself', she said 'I did not believe that [he] was actually threatening self-harm nor did I feel threatened or intimidated by his comment, as I deemed it to be a statement made in exasperation and an emotional outburst.'
6. Mr Spinks denied having threatened or attempted self-harm on 11 November 2020. He also denied having looked for the keys to his firearm safe or having wanted to obtain a firearm that night.
7. In oral evidence in these proceedings, Mrs Spinks, a licensed firearms holder, agreed that she had taken the keys to the firearms safe to give to the police. As a former police officer, Mrs Spinks was aware that the firearms would be seized in accordance with police procedure and wanted to be prepared to comply with the request. She told the tribunal that she and the applicant were the only people who knew where the keys to the firearm safe were kept.
8. Mrs Spinks also gave evidence that she and Mr Spinks 'have remained in an amicable relationship as we share two children from our marriage, we also have stock and other farm items that we both hold a joint interest in.' She is also on friendly terms with Mr Spinks' new partner, describing her as 'lovely' and the couple's relationship as a very stable one.
9. Mrs Spinks has no concerns for Mr Spinks' mental health and has seen no signs of him suffering from depression or anxiety: I am currently employed as a registered nurse with [the local] Community Adult Mental Health Team, where I have worked for a period of two years. My role included assessing acute mentally ill people that are suicidal and potentially going to carry out their threats. In my opinion, Greg was not acutely suicidal or showing any symptoms of mental illness on the 12 November 2020, nor has he since that date. He has been upset by our separation and end of our marriage, Greg has exhibited frustration and disbelief that the incident has led to the state of his Firearms Licence now being revoked…I believe Greg is not a threat to himself or any other member of the public, including myself and my family members.
10. On the evidence before me, I am satisfied that on 11 November 2020, Mr Spinks and Mrs Spinks argued and spoke of separating in the presence of their then seventeen-year-old daughter. It is not disputed that Mr Spinks said something to the effect of 'I may as well go and kill myself'. On the evidence before me, however, I am satisfied that this was simply a comment made during an argument and not an indication that Mr Spinks was contemplating suicide.
11. I accept that, in the context of her parents' arguing, their discussion of separation and her father's comment, the daughter feared that her father might harm himself with a firearm. On the evidence before me, however, I am not satisfied that this was ever Mr Spinks' intention.
12. Whilst the daughter spoke of her concern that her father had gone into the study to retrieve the keys to the firearms safe, I accept Mr Spinks' evidence that his daughter was not aware of the location of the keys. I also accept the evidence of Mr Spinks and Mrs Spinks that the keys to the firearms safe were not kept in the study and that their location was never disclosed to their daughter (or to anyone else).
13. I am satisfied that it has now been well over a year since Mr Spinks and Mrs Spinks separated and accept that the relationship is amicable, with the family going out for dinner together and retaining joint financial interests.
14. Given her role as a registered nurse working in the mental health area, I am satisfied that Mrs Spinks is aware of indicators of mental illness. I accept her evidence that she has no concerns either about Mr Spinks' mental health or about him holding a firearms licence

What is the applicant's history as the holder of a firearms licence?

1. Mr Spinks provided the following history as the holder of a firearms licence: I have no criminal convictions or criminal history. I have held a NSW firearms licence continuously since the age of 16 (41 years) without any incident. I was a member of the NSW Police force for 30 years. During that time, I was a member of the TRG (Tactical response group) and SWOS (Special Weapons and Operations Squad). Both these squads required ongoing training with firearms. I was operational for 30 years within the police force and was required to carry a revolver every shift. Throughout my career there were no adverse issues or incidents involving firearms. Throughout my career I attended numerous firearms related incidents. I have a thorough and complete appreciation and understanding of firearms and their impact on the community in the wrong hands. For this reason, I respect firearms and have never used them outside of lawful purposes. Since retiring from the NSW Police Force, I have been a primary producer. This vocation has required me to euthanise sick and dying animals. I am not an avid gun user. I only utilise firearms as described above and to eradicate foxes when and if the need arises.
2. On the evidence before me, I am satisfied that, until the revocation of his licence in 2020, Mr Spinks, who is now fifty-nine years old, had held a firearms licence since the age of sixteen.
3. I accept Mr Spinks' evidence that during his employment as a police officer he was issued with a firearm which he carried on him whenever he was on duty. There is no evidence before me of any incidences involving a firearm during the thirty years he spent as a police officer.
4. I accept that Mr Spinks continues to run a farm and requires a firearms licence to shoot foxes and magpies and other vermin.

Are there concerns for the applicant's mental health?

1. In 2012, Mr Spinks was on worker's compensation for two months due to work-related stress. At this time, he was diagnosed with post-traumatic stress disorder (PTSD) and in 2013, he was medically discharged from the NSW Police Force. Following his discharge, he took anti-depressant medication on an intermittent basis which, I accept, he has not taken since 2018.

Medical report by Dr Sanjay Sinha

1. In January 2021, the consultant psychiatrist, Dr Sinha, completed a risk assessment report for Mr Spinks. In his report he made the following findings: 1. Mr Spinks does not have any psychiatric condition at this time and I do not feel he suffered from any condition on 12 January 2020. 2. Despite a diagnosis of PTSD in 2012, he has no current impairment. The PTSD symptoms he had were of anxiety related to work experience as a police officer and they abated when he finished work as a police officer. They did not impair him enough for him to lose his gun permit when still a police officer. 3. He is not on any medication now. He has used [it] irregularly between 2010 and 2018. He never experienced any adverse effect on it. 4. He denied suicidal thoughts either currently or in [the] past. Even during the years he was being treated for PTSD he had no thoughts of harming self or others.
2. Dr Sinha gave the following opinion: In my expert opinion, Mr Spinks is suffering from no condition that has a potential to put public safety at risk if he had possession of firearm…He did not show any behaviour in the past suggestive of that either.'
3. In oral evidence in these proceedings, Dr Sinha referred to Mr Spinks' long history of holding a firearms licence and reiterated his view both that Mr Spinks had been very responsible with firearms over this period and that, in Dr Sinha's view, he would not pose a risk should he have a firearms licence. He confirmed that, during their consultation, Mr Spinks had presented well, and had given his answers openly and honestly.

Medical report by Dr Murray

1. A further psychiatric report was undertaken for the applicant by Dr Murray on 13 August 2021.
2. Dr Murray first saw Mr Spinks on four occasions in 2012 while he was working as a police officer and noted his retirement from the NSW Police Force in 2013 following a diagnosis of post-traumatic stress disorder. He again saw Mr Spinks on 10 August 2021 for the purposes of providing a report for these proceedings, noting that Mr Spinks now works with Corrective Services on a part-time basis, runs his own farm and sub-contracts to other farms.
3. At interview, Dr Murray found Mr Spinks to be mentally well, scoring very low (7/80) on the PCL-5 test instrument and below the threshold for a diagnosis of post-traumatic stress disorder. Dr Murray formed the view that Mr Spinks was 'mentally well… and [had] no evident need for psychiatric treatment.' He formed the opinion that Mr Spinks 'has improved over time and now reports so few symptoms that the diagnosis can no longer be made in his case.' He does not believe Mr Spinks presents a risk to himself or anyone else and notes that there is no history that 'PTSD has in this case affected the patient's ability to exercise the desired control and responsibility over firearms in the past.'
4. According to Dr Murray: 1. Mr Spinks has the ability to form a rational judgement and to exercise will power to control physical acts in accordance with rational judgment; 2. Mr Spinks has never demonstrated an inability to form a rational judgement or to exercise willpower to control physical acts in accordance with rational judgment; 3. there is no significant risk of Mr Spinks losing for the first time his ability to form a rational judgment or to exercise will power to control physical acts in accordance with rational judgment; 4. Mr Spinks does not present a risk to himself or any other person; 5. it is highly unlikely that Mr Spinks ever would present a risk to himself or to any other person by reason of his possession and use of a firearm;
5. Dr Murray stated that he had no reservations about Mr Spinks being allowed ownership and access to firearms.

Mr Spinks' current mental health

1. I accept the expert opinions of Dr Murray and Dr Sinha that Mr Spinks is mentally well and no longer meets the diagnosis for PTSD. Any minor inconsistencies between the reports - namely the state of Mr Spinks' marital relationship at the time of writing the reports and the dates the applicant stopped taking anti-depressants - do not affect my findings in relation to the applicant's current mental health.
2. On the basis of the medical evidence before me in addition to the evidence provided by Mr Spinks, I accept that: 1. he is no longer taking anti-depressants; 2. he is not and has never been suicidal; 3. he no longer meets the criteria for a diagnosis of PTSD; 4. he is mentally well and able to make rational judgements.

In completing his application for a firearms licence, did the applicant provide misleading information?

1. Contained on file are completed applications by Mr Spinks for a firearms licence. Included on the form is the following question: 'Have you ever attempted suicide or self harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?'
2. On each of the applications contained on file, which were dated 26 July 2011, 28 January 2015 and 18 July 2016, Mr Spinks answered no to this question.
3. Whilst the Commissioner of Police has submitted that by answering no to this question, Mr Spinks has been wilfully misleading, I cannot be satisfied of this. The question contained on the form is not a clear one, including as it does a number of questions within it. The relevance of the question for Mr Spinks is whether he had been referred or treated for a mental or nervous disorder or illness within the last twelve months. On the evidence before me, Mr Spinks saw Dr Murray on four occasions in 2012, prior to his diagnosis of PTSD in 2013. There is no evidence that Mr Spinks had a referral or treatment for a mental or nervous disorder or illness in the twelve months prior to 2015 and 2016.
4. Mr Spinks told the tribunal that whilst he had been taking medication, he had not sought treatment since 2012 and answered the question on this basis. On the evidence before me and given the wording of the question, I cannot be satisfied that Mr Spinks has been wilfully misleading in this respect.

Has the applicant displayed intimidating behaviour towards others?

1. In 2015, Mr Spinks contacted police after a number of his sheep had been mauled. He believed that the neighbours' dogs had been responsible for the mauling and approached the neighbours about this.
2. I accept Mr Spinks' evidence that he asked the neighbours to keep their dogs in their yards when not on a lead and that when one of the neighbours stated her belief that dogs should be allowed to run where they wish, Mr Spinks told her that 'if land holders see dogs attacking sheep and cannot stop the attack, they are legally permitted to take action and this may entail shooting the dog.' I accept Mr Spink's evidence that, in this discussion, which I am satisfied did not take place on the neighbour's land, he was drawing her attention to the provisions of the Companion Animals Act 1998.
3. Whilst the incident occurred in 2015 and was documented on the police database, it did not impede the renewal of Mr Spinks' firearms licence in 2016.
4. On the evidence before me, I cannot be satisfied that Mr Spinks displayed intimidatory behaviour on this or any other occasion.

Can the tribunal can be satisfied that the applicant poses virtually no risk to himself or others if he were to possess firearms?

1. For the reasons set out above, I am satisfied that: 1. prior to revocation of his licence in 2020, Mr Spinks has been the holder of a firearm licence for over 40 years without incident; 2. as a police officer, Mr Spinks was a member of the Special Weapons and Operations Squad, Public Order Riot Squad and Tactical Response Group, which required continuous use of specialised firearms and weapons for thirty years. There is no evidence that, during this time, Mr Spinks ever came to attention in relation to his firearms use; 3. on 11 November 2020, whilst Mr Spinks and Mrs Spinks did have an argument, there was no violence and no firearms involved. Whilst Mr Spinks was upset by the argument and by the talk of separation, I am not satisfied he ever had the intention to self-harm or harm anyone else; 4. in completing the applications for firearms licences that are before me, Mr Spinks did not provide wilfully misleading information; 5. the 2015 incident considered above involved a discussion between Mr Spinks and his neighbours following the mauling of some of Mr Spinks' lambs. I am satisfied that any discussion in relation to shooting the neighbour's dogs was made in the context of Mr Spinks explaining the rights of animal owners in the context of the Companion Animals Act 1998; 6. whilst Mr Spinks had a prior diagnosis of PTSD that was treated with medication and resulted in his medical discharge from the police force, I accept the evidence of the psychiatrists, Dr Sinha and Dr Murray, that he no longer meets the criteria for a diagnosis of PTSD and no longer takes antidepressant medication; 7. Mr Spinks and Mrs Spinks retain an amicable relationship that includes going out together as a family and maintaining joint financial interests.
2. Although I could not be totally satisfied that Mr Spinks would not pose any risk to public safety if he were given access to a firearm, for the reasons set out above, I am satisfied that there is virtually no risk. (see Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28)

Is it in the public interest for Mr Spinks to hold a firearms licence?

1. A firearms licence may be revoked for any reason prescribed by the Firearms Regulations, including where the Commissioner of Police (or on review, this tribunal) is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
2. According to Lynch v Commissioner of Police (GD) [2006] NSWADTAP 80, relevant factors to be considered include matters of general public policy, which are informed by the principles and objectives of the Firearms Act, namely, to confirm firearm possession and use as a privilege conditional upon the overriding need to ensure public safety.
3. In this context, licence holders must not only understand the laws and regulations by which they are bound, but must also comply. O'Donnell v Commissioner of Police [2009] NSWADT 82.
4. In considering whether it is in the public interest for Mr Spinks to hold a firearms licence, I have taken into account (as considered above): 1. Mr Spinks' history of holding a firearms licence; 2. his medical history; 3. his interaction with his neighbours in 2015 in relation to their dogs; 4. the circumstances of the incident on 11 November 2020 which led to the seizure of his firearms; 5. his domestic situation; 6. his need for a firearms licence.
5. For the reasons set out above, I am satisfied that Mr Spinks no longer meets the criteria for a diagnosis of PTSD and, in this regard, requires neither medication nor treatment. I accept the opinion of Dr Sinha and Dr Murray that Mr Spinks is mentally well and that it is highly unlikely that he would ever present a risk to himself or any other person by reason of his possession and use of a firearm.
6. I accept the evidence of Mr Spinks and Mrs Spinks that on the evening of 11 November 2020, Mr Spinks was not suicidal, did not have a firearm and did not seek to obtain one from his firearms safe. I am satisfied that the couple is now amicably separated and spend time together as a family, including with Mr Spinks' new partner.
7. I am satisfied that prior to 2020, Mr Spinks held a firearms licence from the age of sixteen years and carried a firearm daily whilst a police officer, without incident. For the reasons set out above, I am not satisfied that Mr Spinks has wilfully provided misleading information when applying for a firearms licence.
8. I am not satisfied that Mr Spinks behaved in an intimidatory manner during his discussions with his neighbours in 2015.
9. I accept Mr Spinks' evidence that he has a farm and that he requires a firearms licence to control vermin and, on occasion, to euthanise stock.
10. I am satisfied that Mr Spinks is aware of the obligations of the holder of a firearms licence and, as a former police officer, has extensive experience in the safe management of firearms.
11. For these reasons, I am satisfied that it would be in the public interest for Mr Spinks to hold a firearms licence.
12. Accordingly, the decision by the Commissioner for Police to revoke the applicant's firearm licence should be set aside.

Order

1. The decision of 5 October 2021 to revoke the applicant's firearm licence is set aside.

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: 25 July 2022