Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Heaney v Commissioner of Police, NSW Police Force [2023] NSWCATAD 36 Hearing dates: 14 December 2022 Date of orders: 10 February 2023 Decision date: 10 February 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: L Andelman, Senior Member Decision: The decision of the Commissioner of Police NSW made on 30 May 2022 to refuse the firearms licence is set aside. Catchwords: LICENSING – firearms licensing – refusal to issue licence – public interest – threat of self-harm – whether Tribunal should accept expert medical evidence. Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Cases Cited: Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors [1995] IRCA 540; (1995) 131 ALR 657 Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 Davos v Commissioner of Police [2013] NSWADT 7 Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 Texts Cited: None Cited Category: Principal judgment Parties: Justin Heaney (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel: D Hancock (Applicant) Solicitors: Maddocks Lawyers (Respondent) File Number(s): 2022/00222556 Publication restriction: N/A REASONS FOR DECISION 1. This is an application by Mr Heaney (the applicant) seeking a review of the decision of the Commissioner of Police (the Commissioner or the respondent) to refuse the firearms licence in a letter dated 30 May 2022. 2. The letter refusing the firearms licence referred to the applicant's suicide attempt and noted that while the applicant was back at work, engaging well in therapy and remaining well, the Commissioner was not satisfied that sufficient time had lapsed to mitigate risk to public safety and relied on the 'public interest' ground in s11(7) Firearms Act 1996 (NSW) (Firearms Act). 3. The applicant made an application for an internal review, but it was not determined within 21 days and on 29 July 2022 the applicant filed his application for review with the NSW Civil and Administrative Tribunal (Tribunal). Relevant Legislation 1. Section 63 of the Administrative Decision Review Act 1997 (NSW) (ADR Act) provides that in determining an application for review, the Tribunal is to make the correct and preferable decision, having regard to the material before it, and any applicable written or unwritten law. 2. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter and in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. 3. The principles and objects of the Firearms Act are set out in s 3, relevantly: Principles and objects of this Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and … (2) The objects of the Firearms Act are as follows: … (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, 1. Section 11(7) of the Firearms Act are in the following terms: … (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. Evidence Applicant's evidence 1. Mr Heaney relied on a statement filed in these proceedings dated 28 October 2022. Attached to his statement are character references. There was also evidence from Mr Heaney's psychologist, Dr Pineda. 2. Mr Heaney is currently employed with the Australian Federal Police (AFP). He carries firearms on a daily basis. He has been employed by the AFP since 2007. 3. In regard to the incident on 22 May 2019, Mr Heaney stated that it was a threat of self-harm. He denied that it was an attempt at self-harm. He described it as a 'progressive build up of bullying in his workplace and post-traumatic stress disorder (PTSD) diagnosed on 24 May 2019 as a consequence of his army service in Solomon Islands in 2008. 4. Following the incident on 22 May 2019, Mr Heaney voluntarily admitted himself into a 3 week in house treatment at a mental health facility. This was followed by a 10 week outpatient course and sessions with a clinical psychologist Dr Pineda. 5. In February 2020, Mr Heaney was certified fit to return to work and was issued with a firearm on 31 March 2020. He continues to use a firearm at work without incident. 6. Mr Heaney relies on character references from three men, Mr Succar, Mr Wilson and Mr Aravena. Mr Succar and Mr Aravena are both employed by AFP and were present at Mr Heaney's home during the incident on 22 May 2019. They contacted the NSW police on their way to Mr Heaney's home based on a phone call from Mr Heaney's wife that he was threatening self-harm and had his work issued firearm with him. They arrived at his home at 7.30pm prior to the arrival of the police. Mr Heaney's wife managed to take the firearm away from Mr Heaney but he picked up a large knife and continued to threaten self-harm. 7. Mr Heaney was in a bedroom with the knife while Mr Succar continued to negotiate with him, and Mr Heaney surrendered the knife to him. Mr Succar and Mr Heaney were crying, Mr Heaney was remorseful and vulnerable. 8. At this stage the police arrived, de-escalated the situation and removed Mr Heaney from the home. 9. During cross examination, it was put to Mr Heaney that on 22 May 2019 he did attempt suicide or self-harm, which he denied. Mr Heaney also denied that he 'barricaded himself in the room' and stated that the door to the room was not locked or blocked. 10. Mr Heaney denied that he was diagnosed with PTSD prior to May 2019. He stated that he started to talk to a psychiatrist at work at the start of 2019 and that there was a mental health welfare officer at work with whom he engaged with as well. He stated that he did that at the request of his manager because he was being bullied by a member of his team but that he did not consider this to be mental health treatment as some of it was mandatory. 11. During re-examination, Mr Heaney expanded on his experience in the Solomon Islands in 2008. He stated that while he was assisting in an arrest he was attacked by about thirty people. He was speared, cut with stones and had bottles thrown at him. He was stood down for 2 days. He was having flashbacks and nightmares. He had a meeting with his army captain who told him about some techniques that he was able to use successfully. Mr Heaney explained that the PTSD diagnosis was based on the spearing, but it was triggered by the bullying at work in 2019. 12. Mr Heaney stated that he wanted a firearms licence as he had been shooting from the age of 5 in country Queensland. Hunting was part of his lifestyle that he wanted to share with his thirteen year old son. 13. Mr Succar has continued to have close contact with Mr Heaney and is of the view that Mr Heaney has overcome his mental health issues and does not hold any concerns that Mr Heaney poses a threat to public safety. 14. Mr Wilson is also employed by the AFP and has known Mr Heaney for a long period of time. He knows Mr Heaney at work and as a friend and entrusts him with his safety. They commenced to target shoot in 2017. 15. Mr Aravena stated that he has maintained close contact with Mr Heaney since the incident and that Mr Heaney has shown great strength and courage by allowing his circumstances to be used as a case study for others who suffer from mental health issues at work. 16. Dr Pineda has practiced in mental health for twenty six years. She commenced to treat Mr Heaney in 2019 and has been treating him consistently since that time. Before the Tribunal there were reports and letters prepared by Dr Pineda from February 2020 to February 2022. 17. Dr Pineda's evidence was that she engaged Mr Heaney in psychological education which involved in teaching him about triggers and circumstances around May 2019 that led to the trauma issue and the impacts that made on his cognition. Other parts of the education involved adaptive coping strategies and understanding general health symptoms such as sleep, exercise and mindfulness. Dr Pineda also undertook a comprehensive assessment of Mr Heaney using 5 diagnostic tools. 18. Dr Pineda described having supportive counselling with Mr Heaney which involved positive reframing, guided conversation and reflective thinking. Dr Pineda understood that Mr Heaney had been diagnosed with PTSD in 2018 based on his service in Samoa. 19. Dr Pineda's opinion was that Mr Heaney was in remission towards the end of 2020, would not relapse and did not pose a risk to himself or to the public as he was stable, had learned and was applying appropriate coping skills and strategies. Her clinical diagnosis was that based on current presentation there was virtually no risk based on objective evidence assessment, but she could not state that there was zero change that he would pose a risk. During cross examination, Dr Pineda explained that people get stuck with feelings of hopelessness which leads to suicidal thoughts, but that people are not defined by past experiences and part of the therapy is to get them out of the self-blame and get them 'unstuck'. Dr Pineda stated that it was important to focus on what Mr Heaney has done since the incident. In her opinion, Mr Heaney has taken full responsibility, is remorseful and willingly engaged and maintained commitment to treatment and has consistently applied the strategies that he has learned which indicated impressive level of insight. The circumstances now are very different, he has a better understand of the illness and that he needs to have realistic expectations that there will always be stresses and challenges. Dr Pineda opined that Mr Heaney is willing to re-engage with therapy if needed and is surrounded by a supportive workplace, family and friends. Respondent's evidence 1. The Commissioner relied on documents lodged pursuant to s 58 of the ADR Act. The material included a USB which contains footage from body worn video worn by Mr Plass, a police officer and a statement by Thomas Coventry, a police officer at the scene on 22 May 2019. 2. Mr Coventry received the call from Mr Aravena who told him that he had received a call from Mr Heaney who informed him that he was going to commit suicide across the road from his home in a park. At about 7.22pm, Mr Heaney's mother in law contacted the police and stated that Mr Heaney had a knife to his throat and a gun in his mouth and that children were in the house. By 7.33pm the police were informed by Mr Heaney's mother in law that the gun had been surrendered. 3. The police arrived at 7.48pm. Mr Heaney released the knife to Mr Succar, the police forced their way into a bedroom with a door slightly ajar, handcuffed Mr Heaney and removed him to an ambulance. Once the handcuffs were removed, Mr Heaney was resisting getting on the stretcher. 4. Mr Coventry had a conversation with Mr Aravena about Mr Heaney being placed on active duties in the Solomons Island and being harpooned with a spear and as a result suffering from PTSD. Mr Aravena also stated that Mr Heaney was working during the day and had been triggered by an unknown incident and that Mr Heaney has been making unsuccessful attempts to contact the AFP psychiatrist on at least 3 occasions. Applicant's submissions 1. Mr Heaney submitted that he carries firearms for work without incident and that this demonstrates that he does not pose a risk to the public if he was granted a firearms licence. The applicant submits that the Tribunal should accept his evidence, the evidence of those who have known him for a considerable period of time and his psychiatrist and find that Mr Heaney poses no risk to the public and that a firearms licence ought to be granted. 2. As Mr Heaney went into full remission in November 2020 any relapse would have been seen by now, yet his health has improved in the last 3 years, despite him having to manage difficult and stressful situations at work. Respondent's Submissions 1. The respondent submitted that first, Dr Pineda's report is unequivocally positive, which is extraordinary and her opinion should not be accepted. Secondly that insufficient time has passed to assess whether there is a risk to public safety. Third, that in threatening to use the firearms on 22 May 2019 the applicant committed an offence under s7 of the Firearms Act, although no charges were ever laid. 2. Also, the Commissioner submitted that while the applicant uses firearms at work, he should not be granted a firearms licence as there is a higher risk profile between the two different regimes. 3. The Commissioner pointed to the inconsistencies in Mr Heaney's evidence as to whether or not the room was barricaded, whether the children were at home at the time of the incident and when he was diagnosed with PTSD and submitted that the Tribunal would have concerns about his credibility as Mr Heaney has had a serious mental health condition since his time in the Solomons in 2008 and cannot be seen as a single incident in 2019. Consideration Public Interest 1. Section 11(7) of the Firearms Act permits a refusal of a firearms licence if it is contrary to public interest. Public interest includes the applicant's safety and that of the whole community. In considering public interest, the objects and scope of the Act are amplified; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors [1995] IRCA 540; (1995) 131 ALR 657 at 681 per Wilcox and Keely JJ and are given paramount consideration Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. 2. Consistent with s 3(1)(a) of the Firearms Act, the applicant's individual interest in obtaining or retaining a firearms licence is subservient to the public's right to safety. 3. In considering the question of public interest, the Tribunal takes into account the interests of public protection, public safety and the proper functioning of the legislative requirements of the firearms scheme. Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. 4. Firearms possession is a privilege and his conditional on the need to ensure public safety. Misuse of firearms can result in catastrophic consequences. Davos v Commissioner of Police [2013] NSWADT 7 at [117]; Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 (Ward). 5. The Tribunal has to consider all of the evidence in the exercise of its discretion and no burden falls on either party. Risk must be considered taking into account all of the relevant circumstances of the case. The risk in question must be a real and appreciable risk. The question for the Tribunal is whether granting Mr Heaney with a firearms licence would cause a risk to the safety of the public. The effect of the licencing regime is not to punish, it is to protect the public. 6. Taking into account the objects and purpose of the Act, the Tribunal must be satisfied that that there is virtually no real and appreciable risk posed to the public safety by the granting or reinstating of a firearm licence. Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 [32]; Ward [28]. 7. The Tribunal is satisfied that Dr Pineda's evidence to the Tribunal is thorough and considered. She had developed a long term professional relationship with Mr Heaney and is in prime position to form an opinion about his mental health. The Tribunal accepts her evidence that Mr Heaney has been in remission since 2020 and that there is virtually no risk of him self-harming. The Tribunal also accepts Mr Heaney's evidence and that of Mr Succar that there was not attempt at self-harm but a threat of an attempt of self-harm. 8. I also accept Mr Heaney's evidence that he was formally diagnosed with PTSD following the incident on 22 May 2019, however it is also clear that he had undiagnosed mental health issues before the incident in May 2019. Nothing turns on this finding as the issue before the Tribunal is whether at the present time and into the future, Mr Heaney poses a risk to public safety if he is granted a firearms licence. Conclusion 1. Based on the material before it the Tribunal, I do not consider that the issue of the firearms licence to Mr Heaney would be contrary to the public interest. 2. The correct and preferable decision is to overturn the decision of the Commissioner to refuse Mr Heaney's application for a firearms licence. Orders 1. The decision of the Commissioner of Police NSW made on 30 May 2022 to refuse the firearms 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: 10 February 2023