Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FXZ v Commissioner of Police, NSW Police Force [2023] NSWCATAD 214 Hearing dates: 17 July 2023 Date of orders: 09 August 2023 Decision date: 09 August 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: T Simon, Principal Member Decision: (1) The decision of the Commissioner to revoke the applicant's category AB firearms licence is affirmed. Catchwords: FIREARMS ACT – firearms – ADHD diagnosis – threats to self-harm - contrary to the public interest Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Firearms Act 1996 (NSW) Cases Cited: Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368 Mikhail v Commissioner of Police [2022] NSWCATAD 73 Category: Principal judgment Parties: FXZ (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel C Nowlan (Applicant) Solicitors Richard Cummins Lawyer (Applicant) Sparke Helmore (Respondent) File Number(s): 2023/00060053 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the applicant, his child and his wife is prohibited, except to the respondent and officers of the New South Wales Police Force or Firearms Registry Reasons for Decision 1. This is an application for administrative review of a decision made by the Commissioner of Police (the Commissioner) to revoke FXZ's category AB firearms licence. 2. The Tribunal has decided to affirm the decision to revoke the firearms license. Background 1. FXZ was initially issued a firearms licence on 1 December 2008. The licence was subsequently re-issued on 22 January 2014 and 22 January 2019. The most recent licence was due to expire on 22 January 2024. 2. In his statement dated 29 April 2023 (exhibit 1, p 2) FXZ states that he started working on the family farm undertaking vermin control in December 2008 and that he has been hunting with family and friends for over 18 years without incident and that he is called on by many other farmers to assist with vermin control. 3. FXZ's firearms licence was suspended on 11 May 2022 after concerns were raised regarding comments made by his daughter that FXZ's threatened to harm himself. 4. On 25 October 2022 a decision was made to revoke FXZ's licence. For reasons that are unclear, a second notification of revocation was also sent on 25 November 2022. 5. FXZ made an application for internal review of the decision to revoke the licence. An internal review was not conducted. FXZ made an application to the Tribunal for administrative review of the decision on 22 February 2023. That application was lodged outside the 28 days required by s 55(2) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and r 24 (3) (b) of the Civil and Administrative Tribunal Rules 2014 (NSW). 6. On 28 March 2023 the Tribunal made an order extending the time to make the application. 7. FXZ appeared at the hearing before the Tribunal and was cross examined at the hearing. No other witnesses appeared at the hearing. The Legislative Framework 1. Section 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states that the ADR Act provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Pursuant to s 9(1) of the ADR Act, NCAT has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to NCAT for administrative review under the ADR Act. 2. Section 75 (1) (c) of the Firearms Act 1996 (NSW) provides for the applicant to apply to NCAT for an administrative review under the ADR Act of the decision to revoke a licence 3. Section 24(2)(a) of the Firearms Act provides that a licence may be revoked for any reason for which the licensee would be required to be refuse a licence of the same kind. Section 11 of the Firearms Act allows the Commissioner to issue or refuse a firearms licence in respect of an application. 4. Section 11(4)(b) of the Firearms Act 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 any previous attempt by the applicant to commit suicide or cause a self-inflicted injury. 5. Clause 20 of the Firearms Regulations 2017 (NSW) provides that the Commissioner may revoke a license if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the license. 6. Section 11 (7) of the Firearms Act also provides: (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. 1. The expression "public interest" is not defined in the Firearms Act. 2. In Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368, the Court of Appeal was interpreting the Firearms Act in the context of a licence being issued or refused under s 11. The Court of Appeal considered whether the public interest considerations in s 11(7) include the applicant's fitness or character which are mentioned separately in s 11(3)(a). Basten JA held at [41] that there is no "bright line" that can be drawn between the factors relevant under subs (7) and those which must be addressed under the other subsections. His Honour went on to say that: there may be characteristics of the applicant which do not lead the Commissioner to refuse a licence under one of the other provisions, but nevertheless permit the refusal of a licence under subs (7). 1. Leeming JA at [93] and White J at [106] agreed that the matters that can be taken into account in making an assessment of the public interest pursuant to s 11(7) are not limited to matters not otherwise dealt with by s 11(3). In White J's stated at [106]: Such considerations may include an applicant's fitness or character if that is relevant to an assessment of the public interest (as it would usually be), notwithstanding that an applicant's fitness or character is a separate matter to be considered under s 11(3)(a). 1. The Court of Appeal's conclusion was supported by the fact that s 11(7) is prefaced with the words "[D]espite any other provision in this section". 2. Section 3 (1) (a) of the Firearms Act provides as one of the underlying principles the following: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, … 1. The Commissioner submits that the firearms licence should be revoked because it is not in the public interest for FXZ to continue to hold the licence because he has threatened self-harm, has a history of traffic infringements and has a diagnosis of Attention-deficit/hyperactivity disorder (ADHD). Attention-deficit/hyperactivity disorder 1. The Commissioner has raised concerns as to FXZ's mental health and, more generally, his diagnosed condition of ADHD. The Commissioner conceded at the hearing that there was no evidence before the Tribunal that a diagnosis of ADHD impacts on a person holding a firearms licence. 2. The Commissioner also acknowledged that there is currently minimal case law addressing what, if any, impact ADHD has on a person's ability to hold a firearms licence. The Commissioner referred to Mikhail v Commissioner of Police [2022] NSWCATAD 73 where the Tribunal stated as follows: 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 also 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. 1. On 26 July 2022, the Firearms Registry sent correspondence to FXZ requesting a doctors assessment. FXZ complied with the request and presented to Mr Warren Freeman, a registered psychologist for assessment. On 28 August 2022, Dr Freeman provided a written response to the Firearms Registry (exhibit 4, p 79 - p83). Mr Freeman reported that FXZ is taking medication for ADHD and that FXZ has had a historical diagnosis of ADHD since age 6. 2. The Tribunal also had before it a letter dated 24 October 2018 from Dr Eoin Wilson, the applicants treating psychiatrist (exhibit 5). The letter is addressed to FXZ's general practitioner. Dr Wilson notes that FXZ had been taking medication called Concerta for the last 15 years. FXZ had run out of the medication the month before he saw Dr Wilson because his previous psychiatrist had died, and the previous psychiatrist had not arranged for FXZ's general practitioner to prescribe the medication. Dr Wilson states: Since being off Concerta, he has noticed that he is distractable and ineffective at work. He forgets to pack up his tools properly (he is a refrigeration engineer in the mines), although he is able to sustain short bursts when things are very important. He is medically well. He does not take any other medications. He does not use illicit drugs and sparingly uses alcohol. He is married with two young children. He thinks his 6-year-old daughter may have ADHD as well. There is a strong family history on his father's side with many cousins having this diagnosis. 1. Dr Wilson concludes that FXZ 'was asymptomatic psychiatrically with good insight.' 2. A consultation note from Dr Wilson dated 28 August 2019 (exhibit 6) sets out the following: Lost script after last appt I rewrote a private script – did not fill as too expensive (extra $60…) Now asking if can inc as 54 was not lasting all day Can try for a few days then add 27 for 63 total Has definitely struggles without it – mistakes at workj – father angryu – distractable – evident today 1. In cross examination FXZ explained that he takes Concerta for his ADHD on days when he goes to work. He stated that it helps him concentrate on tasks at work. He also explained, by way of an example, that he takes medication at times when he goes fishing to help him focus on tasks such as tying a knot. 2. FXZ has also obtained a report from Dr Antony Henderson, a forensic psychiatrist (exhibit 3). Dr Henderson's report provides a general overview of ADHD and the available options for treatment of ADHD. Dr Henderson's report is based on a review of a medical certificate from Dr Wilson dated 21 March 2022 and correspondence from Mr Freeman dated 17 December 2022. 3. Dr Henderson states, in his report at p 7 – p 8): … ADHD is not a mental disorder that is characterised by a serious disturbance of mood, disturbances of though, delusions or hallucinations that would translate into an individual representing a risk to themselves or other, that would necessitate involuntary treatment., 1. Dr Henderson provides the following comments about whether it is contrary to the public interest for the applicant to hold a firearms licence: Although ADHD does not directly give rise to circumstances whereby the individual may represent a risk to themselves or other person, ADHD is associated with comorbid depression, anxiety disorders, substance used disorder, conduct disorder, personality disorder and educational outcomes, unemployment, criminality and suicide. Although ADHD has been 'indirectly' associated with an increased risk of suicide and criminal behaviour, the relationship is more strongly determined by the presence of comorbid depression, substance abuse or personality disorder, rather than ADHD itself. 1. The Commissioner submits that FXZ's history of mental health concerns, together with the diagnosis of ADHD, present significant concerns that are relevant to FXZ's fitness to hold a firearms licence. The Commissioner submits that while the report discusses ADHD in general terms, it provides minimal assessment of FXZ's own ADHD condition, and, as such, the Commissioner submits the Tribunal should give the report minimal weight. 2. There is no evidence before me which demonstrates that FXZ has a history of mental health concerns. FXZ has been diagnosed with ADHD, which is not a mental illness. FXZ takes medication to assist him to focus on tasks and his evidence is the medication allows him to do that. 3. FXZ's diagnosis of ADHD does not present a risk in relation to the granting to him of a firearms licence. Mr Henderson's evidence does suggest an indirect statistical association of an increased risk of suicide and criminal behaviour in people with ADHD, however, that is more strongly determined by the presence of comorbid depression, substance abuse or personality disorder. There is no suggestion that FXZ has any of those co-morbidities. 4. Based on the evidence before me, I determine that FXZ's diagnosis of ADHD does not demonstrate a risk to public safety in the context of FXZ holding a firearms licence. Traffic infringements and warning 1. Repeated breaches of traffic laws can indicate a disregard for a regulatory scheme aimed at ensuring public safety. 2. FXZ's traffic record history (exhibit 4, p 11 – p 14) discloses traffic infringements between 2008 and 2022 including 6 speeding offences across 2009 – 2022. The offences include: * an offence for exceeding the speed limit by more than 20km per hour but not more than 30km per hour in 2016 and * failures to comply with conditions of provisional licence on multiple occasions in 2008 to 2009, which resulted in the suspension of the FXZ's P2 Provisional licence. 1. FXZ was also issued a warning by police for intoxicated behaviour in a public place on 20 March 2010 (exhibit 4, p 20). 2. The traffic offences and the warning for intoxicated behaviour are in the moderate range and most of them occurred a long time ago. Having considered FXZ's traffic history and the warning, I do not find that the offences demonstrate that FXZ has a disregard for regulatory schemes. Threat of Self harm 1. The Commissioner submits that it is a threat to public safety for FXZ to hold a firearms licence because of comments he made about harming himself. 2. FXZ's daughter made a report to a teacher at her school that her father had threatened to harm himself. FXZ denies that the incident occurred and believes that his daughter misunderstood the meaning of what he had said. FXZ also stated he never threatened to self-harm. 3. In the report from Mr Freeman (exhibit 4, p 79), Mr Freeman states: I have not seen any independent verification that would persuade me that FXZ has any intentions regarding self harm, and there was nothing in his presentation, self report or my observations that would suggest this. 1. Relevantly s 11 of the Firearms Act provides as follows: … (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 (b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State. (4) Without limiting the generality of subsection (3) (a), 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— (a) the applicant's way of living or domestic circumstances, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind. … 1. The Commissioner relies on s 11(4) (b) and submits that the Tribunal has reasonable cause to believe that the FXZ may not personally exercise continuous and responsible control over firearms because of the FXZ's daughter reported that he had threatened to self-harm. I accept from the evidence of Dr Freeman and FXZ that he has not had an intention to self-harm. On that basis, I do not find that there has been an attempt by the applicant to commit suicide or cause a self-inflicted injury for the purposes of s 11 (4) (b). 2. However, the fact that FXZ did not intend to self-harm, does not necessarily mean that the threat did not occur as it was reported by FXZ's daughter. It remains possible that FXZ did make the threat, without any intention of carrying it out. 3. The documents which have been produced under s 58 of the ADR Act (exhibit 4) contain a series of records from the NSW Computerised Operational Policing System (COPS) database. In an entry created on 18 November 2021, police noted that on 12 November 2021, FXZ's daughter spoke to a teacher at school in relation to an incident that occurred at her residence on an unknown date. FXZ's daughter stated words to the effect of "Dad went to the shed and took the gun out and said do you want me to kill myself." The school informed police of the incident on 18 November 2022 and police attended FXZ's home. 4. Police officers had a conversation with FXZ's daughter regarding the incident. FXZ's daughter stated to the police that she had told 'big lies' and that 'Dad didn't take the gun out.' FXZ's daughter further told police that her parents 'fight sometimes and she didn't want anyone to get into trouble'. The police notes record: Police explained to [the daughter] that she was not in trouble. During this conversation [the daughter] was forthcoming with information when asked questions, but could not specify dates or times the arguments between her parents had occurred. 1. The entry records that police officers also had a conversation with FXZ, and he denied taking the firearm out of its safe or making the threat to kill himself. Police noted: When asked questioned in regards to self harm and making comments about shooting himself he stated words to the effect of "Yeah maybe years ago." The POI advised that during arguments he may make comments such as "I don't want to be here anymore." The POI continued to allude to possible comments he had made in the past of self harm but would not specify specific wording. The POI also referenced past incidents where he and his wife would argue and [the daughter] would become violent and pick up knives throughout these arguments. He stated that [the daughter] may suffer mental health issues but has not been diagnosed with anything. 1. Police also spoke to FXZ's wife. She told police that FXZ had not made specific comments to harm himself, but that he was currently not taking his medication. Police asked what the medication helps him with, and the notes record the following: police were told " I call them his happy Pills. It helps him to not be aggressive and calms him down." The victim sated that over the last few weeks verbal arguments had become more frequent due to the POI becoming frustrated with family and work issues. When questioned about incidents where the [the daughter] had picked up knives in previous incidents , she stated "That was years ago and we got her to speak to a psychologist. Nothing like that had happened recently." When asked if the POI has made threats to self harm recently the victim replied "mmmmmmmm yeah but not really." Neither the victim and POI were forthcoming with specific wording of the POI and comments had been made, which concerned police. During conversation with both the victim and POI, both parties provided police with a number of different time frames for arguments they were asked about, these dates ranged from 2 weeks ago to 4 weeks ago and even 6 years ago. Police have concerns that both the POI and victim were withholding specific information as they were aware the POI may have his firearms seized. Due to ongoing DV verbal argument, possible metal health issues of the POI and the [the daughter's] reluctance to specify specifics about the POI's comments of self harm, police seized all 17 firearms and ammunition at the location. 1. FXZ provided a statement dated 29 April 2023 (exhibit 1) responding to the incident and the COPS records. FXZ states the following: 19. On or around May 2021, me and wife had a conversation, however, I do not remember the conversation, but it had something to do with marital issues 20. During the conversation I said something to the effect of "I do not want to be here anymore". 21. My 8-year-old daughter overheard our discussion and went to school and reported to a teacher that I was going to top myself. My daughter misunderstood the context of the conversation and the meaning of the words I used. 22. I did not go to the shed to get my gun, and I did not say that "I want to kill myself, as that is not something I would say, and it is not something that even entered into my mind, and I would remember saying something like that. 23. Also, my guns are stored locked, in a sealed gun safe, in a safe environment with the keys stored in a separate locked cabinet 24. My understanding is that my daughter went to school and told a teacher that I wanted to kill myself. The Teacher then reported this to the police. 25. Moreover, when my daughter was spoken to by the police, my daughter told them that she lied…. 26. I was then visited by the police who confiscated my guns. The police kept telling me I had guns that were unregistered, even though I showed them the registration papers. 27. While the police were at my home, they asked me a bunch of questions, and one of them was about mental health. I responded to them that I have ADHD and that I am currently not taking my medication, because I do not need it. 28. As a result of the police conduct during this time, I became stroppy with the police because they were suggesting that I had illegal firearms in my possession, which I never would have. 29. I provided the Police with the paperwork, but they continued to be abrasive with me, and threatened to get a search warrant. 30. Six months prior to this event, the police had conducted an inspection at my home (as per Firearms Regulations Act), and there was no mention of illegal firearms or any misconduct. 31. At the time of the event, I was issued with a license suspension pending a review of the matter. 32. On page 33 of the police Commissioners S58 Bundle, Cops event E 85737768 My daughter told the police something along the lines of "Dad went to the shed and took the gun out and said do you want me to kill myself," However, I said something along the lines of "I don't want to be here anymore." Which has nothing to do with wanting to kill myself. 33. I was told by my psychiatrist, and GP that I only need to take my medication when needed, as I am growing out of my ADHD. 34. I take my medication every day, however, at the time the police asked me the question, I had not taken my medication yet. As such, my response was I did not take my medication. 35. I believe that the police misquoted me and that the reasons for revoking my licence are based on this misquote. 36. I also believe that my daughter did not understand the context or meaning of what me and my wife were talking about 1. In cross examination, FXZ was asked about why his daughter would make the statement to teachers. He responded that his daughter has mental health issues and was not in a good state of mind at the time of reporting and that she may have misunderstood what he meant. He stated that he never threatened to self-harm and had not pulled the gun out of the safe. He had only made the statement 'I do not want to be here anymore' and that was in relation to his marriage. 2. I note that none of the police officers who made the entries or FXZ's wife or daughter provided statements to the Tribunal. FXZ denies ever making threats about self-harming, however that conflicts with what is contained in the COPS records. The entry in the COPS records indicate that when FXZ was asked about making comments about shooting himself, he stated words to the effect of 'Yeah maybe years ago.' The COPS records also note that FXZ stated that that during arguments he may make comments such as 'I don't want to be here anymore', however the COPS records also note that FXZ alluded to possible comments he had made in the past of self-harm but would not specify specific wording. 3. The COPS records reveal that there was about 7 days between when FXZ's daughter reported the threat at school on 12 November 2021 and when the school reported the threat to police on 18 November 2021. The COPS records indicate that when police attended the home, they had a conversation with FXZ's daughter relating to truth and lies and that FXZ's daughter stated to the police that she had told lies. FXZ's daughter also told police that she didn't want anyone to get into trouble. It is concerning that 7 days after first making the comments at school, FXZ's daughter subsequently stated that she did not want to get anyone in trouble and retracted her previous comments when police attended the home,. While I accept that it would be frightening for any 8-year-old child to speak with police, there remains some risk that FXZ's daughter retracted her story out of fear of the consequences that would arise for her family or her father. 4. FXZ indicates that the reason that his daughter may have told lies is that she may have mental health conditions. I note that the report of Dr Wilson (dated 24 October 2018) refers to comments made by FXZ that he thinks that his 6-year-old daughter may have ADHD. However, a diagnosis of ADHD would not explain why FXZ's daughter may make up a story as serious as the one she told her teacher at school. I also note that FXZ told police of an incident in which his daughter had become violent and picked up knives during an argument in the past. FXZ's wife confirmed that the incident occurred years ago and that the daughter has spoken to a psychologist and nothing like that had happened recently. Other than those matters, there are no other details of the daughter's mental health condition or why a mental health condition may cause her to tell a lie that her father went to the shed and took a gun out and said words to the effect of 'do you want me to kill myself.' 5. The COPS entries record that FXZ's wife indicated that over the previous few weeks, verbal arguments had become more frequent due to FXZ becoming frustrated with family and work issues. Although the COPS entry notes that FXZ's wife described his ADHD mediation as 'happy pills', I accept that the medication is not taken to alter FXZ's mood. However, it is concerning that FXZ's wife explains to police that the pills help him to not be aggressive and calm him down. That suggests that FXZ may be prone to being aggressive. That is also alluded to in Dr Wilson's note extracted at [27] above where he notes that FXZ struggles without the medication and Dr Wilson uses the word "angry". 6. The records also indicate that when FXZ's wife was asked about whether FXZ had made threats to self-harm recently, she replied 'mmmmmmmm yeah but not really.' That response indicates a level of hesitation. It seems to me that the police have a basis, on the evidence, for their concerns that FXZ, his daughter and his wife may have been withholding information, and that the daughter may have retracted her initial disclosure of the threat because she was aware the FXZ may have his firearms seized or because she was concerned about other 'trouble' that might arise out of the disclosure. 7. I am aware that I am weighing up evidence from COPS entries against the direct statements of FXZ. However, the consideration of the public interest also requires an assessment of actual risk. On the evidence before me I find that FXZ's category AB firearms licence should be revoked on the basis that it is not presently in the public interest for him to continue to hold the licence. I am comfortably satisfied that FXZ did make the threat to harm himself which was reported to the school by his daughter, and that his daughter later said she was lying for fear that she had brought about some adverse consequence for her family. I also find that both FXZ and his wife were not forthcoming in what they told police to avoid the consequences that might arise from the disclosure of the threat. In those circumstances, I find there is a risk to public safety if FXZ is given the privilege of continuing to have access to firearms. The correct and preferable decision is to affirm the decision of the Commissioner to refuse the FXZ's application for a Category AB firearms licence. Orders 1. The Tribunal makes the following orders: 1. The decision of the Commissioner to revoke the applicant's category AB firearms licence 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: 09 August 2023