Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Woods v Commissioner of Police, NSW Police Force [2013] NSWADT 218 Hearing dates: 29 July 2013 and 19 September 2013 Decision date: 09 October 2013 Jurisdiction: General Division Before: Naida Isenberg, Judicial member Decision: The decision under review is affirmed Catchwords: Firearms licence - possible suicide attempt - public interest Legislation Cited: Firearms Act 1996 Administrative Decision Tribunal Act 1997 Cases Cited: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. Commissioner of Police v Toleafoa HYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWADTAP/1999/9.html" \o "View Case"[1999] NSWADTAP 9 Weckert v Commissioner of Police, NSW Police Force [2011] NSWADT 197 Ward v Commissioner of Police, New South Wales Police Service HYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWADT/2000/28.html" \o "View Case"[2000] NSWADT 28 Category: Principal judgment Parties: Steven Woods (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: S Woods (Applicant in person) Commissioner of Police (Respondent) File Number(s): 133044 reasons for decision Background 1The Applicant, Steven Woods, applied to the Respondent for a firearms licence. His application was refused, in essence on the basis of his way of living/domestic circumstances, attempted self harm, and that it would be contrary to public interest for him to hold a firearms licence. 2He has applied for review of the Respondent's decision. Relevant Legislation 3The general principles of the Act are set out in section 3: 3 Principles and objects of 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 (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (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 sales of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms. The Act, in setting out restrictions on the issue of licences, provides, relevantly in s.11: ... (4) ... 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, ... (7) ... the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. ... 4Section 63 of the Administrative Decision Tribunal Act 1997 ('the ADT 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. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. EVIDENCE 5The Respondent provided a bundle of documents under s. 58 of the ADT Act. Included in those documents was a copy of the application and also of the Applicant's criminal history. A copy of hospital records from Liverpool hospital was also tendered. Evidence was also given by Constable J Bowling who had attended the Applicant's premises on 6 April 2012. 6The Applicant provided a statement, a statement by his sister, Vicki Simpson, a statement by his ex-partner, Sherri-Ann Stone, telephone records in respect of his parents' landline and his ex-partner, certificates of attainment for SES training, some character references, photographs of his premises, photographs of medication packaging, a psychological report dated 1 May 2013, and medical information and receipts in relation to his hernias and a recent blood test. He also provided medical information about his brother. 7The Applicant gave extensive evidence. CONSIDERATION Is there reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of his way of living or domestic circumstances? 8In this regard, in its internal review the Respondent relied on the fact that the Applicant lived at the same premises as his father and brother and that neither had a firearms licence and, if they applied, would be subject to mandatory refusal. In particular it noted his brother's extensive criminal history and his hallucinations and threats to kill people who might be on an adjoining property. It noted the domestic violence incidents between various family members involving alcohol and threats made by his brother to harm the Applicant and his father. It was considered that his father or brother may try to convince, intimidate or force him to give access to his firearms. 9The Applicant gave evidence that he lives in a granny flat at the back of his parents' home, in which they and the Applicant's grandmother live. He generally has a good relationship with them, but he never really got along with his brother, who has an extensive criminal and drug-abuse history. The Applicant's evidence, which was largely supported by the medical evidence was that, tragically his brother was in a serious motor vehicle accident last year and suffered very extensive brain damage. The Applicant said his brother's current condition is such that he lives in a rehabilitation centre and on a couple of days a week visits the family home. In March this year the prognosis was that it was unlikely he would ever be able to live independently. The applicant said he is like a child. In the circumstances I do not consider the Applicant's brother would be likely to pose any risk or influence the Applicant. On the limited evidence available to me I also do not find that his father may pose any risk or influence the Applicant. 10The Applicant described the granny flat. He said it had a lockable glass door and locks on the windows. It is alarmed and only he has the code. There is extensive CCTV about the external premises because his brother, he said, had installed it because of his previous drug-induced paranoia and hallucinations. The Applicant has an expensive computer and TV. Behind a bookcase is his concealed gunsafe, operated by a swipecard, with a 3 second time delay. From the evidence I accept that if he were to have weapons it would appear that they would be likely to be capable of being reasonably secured. 11I do not consider that the evidence supports a finding that there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because domestic circumstances or his way of living. Is there reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of any previous attempt to commit suicide or cause a self-inflicted injury? 12The aspect of the evidence about which there was the greatest dispute related to the events of 6 April 2012 and whether the Applicant had on that occasion, or previously, attempted to commit suicide. 13The Applicant said he went to the home of his ex-partner at about 3.30pm that day and they had a major argument about her having an affair. She took back from him his mobile phone, for which she had been paying the bills, because he is bankrupt. The Respondent produced the records of the Applicant's mobile phone. Several calls were made from that number to his ex-partner's phone after he said he left her, including a call at 9.18pm. A short time later, at 9.42pm and 9.52pm calls were made from his phone to the Poisons Hotline and to Lifeline, respectively. 14Lifeline records were produced by the Respondent. They note a call from the Applicant's mobile number by a highly distressed unidentified male of 4 minutes duration at 9.52pm. The caller was said to be considering suicide and had already taken something or harmed himself. The caller said he had previously tried to hang himself. Const. Bowling said, to the best of his recollection, the Applicant had told him he had phoned Lifeline. He also recalled that the Applicant said that he had not asked for help though. In his evidence the Applicant denied that he had phoned Lifeline, because he was, he said, at that time, on the phone to his sister. 15The records from the Poisons Hotline note that the caller enquired about the effects of soldering flux. In the Applicant's granny flat is his workshop where he repairs and builds electrical equipment, such as radios and motion detectors. He uses soldering flux and other chemicals but said these are locked away because he would not want his daughter mistakenly drinking them. The Applicant denied he had phoned the Poisons Hotline and said that it clearly did not refer to him because he was 'angry', not 'distressed', as had been recorded. 16Const. Bowling gave evidence that he had received a message on police radio at 10.20pm that night that the Applicant had called Lifeline about hanging himself. His mobile phone was recorded and the last known address was [that of his ex-partner]. Const. Bowling said he attended that address and Ms Stone gave him the address of the Applicant's granny flat. When he arrived there the Applicant said he had been talking to his sister in WA on the home phone. Const. Bowling had the Applicant phone his sister again and he, Const. Bowling spoke with her. She said her brother had said he wanted to kill himself and that he was going to hang himself. Const. Bowling said the Applicant told him he had been taking Roxithromycin for depression but had not taken it for 2 years because of his hernia. 17The Applicant said that after the argument with Ms Stone he went home and helped his father with some chores during which he had 3-4 cans of beer. At about 6.00-6.30pm he started drinking heavily, possibly as many as 12 long-necks. Const Bowling observed that he smelt of intoxicating liquor and formed the view he was moderately affected by alcohol. The Applicant told him he had been drinking heavily because of the breakup of his relationship with Ms Stone. The Applicant conceded in his evidence that he was very drunk. 18The Applicant said he had gone to the bathroom, threw his ipad into the basin because he was angry and it bounced up and smashed the bathroom mirror. He denied smashing the mirror intentionally. 19The Applicant said that after watching TV for about 2-3 hours, at about 6.00-7.00pm he called his sister in Perth using the house landline, which had an extension in the granny flat. She re-assured him, telling him how beautiful his daughter is. She told him there was no point in getting angry. He produced phone records for the landline showing calls to his sister that day at 5.17pm (3 hours 33 minutes), 8.55pm (7 minutes), 9.04pm (13 minutes), 10.13pm (21 minutes), 10.34pm (2 minutes). The Applicant said he may also have phoned her on 'the mobile'. The records for his phone suggest she was also phoned her several times between about 9.40pm and 11.10pm that night. He denied he told her he was contemplating suicide. 20Const. Bowling said that when he spoke with the Applicant's sister she was clear that the Applicant had mentioned self-harm and she asked the constable what he proposed to do about it. In his evidence he said she told him her brother had sounded distressed. The Applicant said he thought the constable must be confused with another case, and noted that Const. Bowling had no notes of the conversation with the Applicant's sister. 21The Applicant agreed that he had not been on the phone to his sister when the calls were made to Lifeline and the Poisons Hotline and said that was when he was in the bathroom. 22In her statement his sister said that she had spoken with him at length from about 3pm Perth time (which would be 5pm Sydney time) until the police arrived at his place. Because he was on the phone to her, with the exception of when he hung up so he could go to the toilet, he could not have phoned Lifeline or the Poisons Hotline. 23The Applicant's explanation was that his ex-partner's boyfriend had phoned Lifeline because it might be funny, or because it might assist in the likely custody dispute about the Applicant's daughter. He said there were other people at his ex-partner's home who may have used the phone. It was pointed out that his mobile phone records would suggest, on his version of events, that his ex-partner (or someone to whom she subsequently loaned the phone that night) was making calls to his sister in the evening of 6 April 2012. 24Const. Bowling's evidence was that the Applicant had denied wanting to kill himself but on the way to the hospital had said he "wanted the pain to stop" and "wanted the shit to stop". 25The hospital notes record that the Applicant said he was 'upset' because he had found out about his ex-partner's affair. He admitted to being intoxicated. He was said to have admitted making suicidal threats but at the hospital, and in his evidence, denied that he had made such threats, although he had made threats in the past. 26The Applicant said that when the police came to the premises and he thought they were looking for his brother, as they had often done in the past. He said he remembered telling the constable that he had anti-depressants but never said he had taken them. He said he had a 'triple hernia' so did not take the medication. In cross-examination he said he could not remember who had prescribed the anti-depressants. He said he went to the doctor about his stomach. When he told the doctor he thought people were talking about him and his ex-partner who accompanied him told the doctor that he was paranoid, the doctor prescribed the anti-depressants. More recently, about 3 months ago, he has again been prescribed anti-depressants to help him sleep. He said he had ceased Roxithromycin a long time go. He only took it for 3 days because it made him sick. He was prescribed some further medication but that also made him ill. 27He said he keeps boxes and blister packs of used medication. He said that evening he had taken 2 Panadol when he got home after the argument; an hour later he took 3 Advil; an hour and half after that he took 2 or 3 Panadol. He agreed he had taken a total of 7-8 tablets in 2½ hours. Although he had Endone, he did not take any, which he said, showed he wasn't trying to commit suicide. 28Const. Bowling decided the Applicant should be scheduled and be conveyed to hospital by ambulance, as is standard procedure. He formed that view on the basis that he understood the Applicant to have contacted Lifeline, what he had told his sister, that he had medication for depression, he had 'broken up with his girlfriend', and the empty blister packs. His view was confirmed when the Applicant told him in the ambulance that he "wanted the pain to stop" and "wanted the shit to stop". 29The Applicant noted that the ambulance officers allowed him to have a cigarette before conveying him to the hospital, and that at the hospital he was compliant, so he wasn't suicidal. He said he wanted to see a doctor and was agitated until he was medically examined. He was discharged, without treatment or follow-up, by sunrise. When asked why he had given his ex-partner as a contact and provided her phone number, he said he had done that through force of habit. In any event, his parents disconnect their phone early in the evening. He said that, notwithstanding that he lived at the same address as his parents they did not know he had been taken to hospital by ambulance that night. The hospital notes however record that his parents were on holidays at the south coast at the time. 30Const. Bowling said he recalled the Applicant was permitted to keep a phone with him in the ambulance, but in his evidence, the Applicant said it was his father's phone which he had taken. In any event, he said, the phone was confiscated from him by a security guard at the hospital. The Applicant referred to the hospital admission notes in support of his contention but these were inconclusive in my view as to whether the phone may have been confiscated as he claimed. He denied telephoning his sister from the hospital, which is contrary to the phone records for his mobile. 31The Applicant said he and his ex-partner were on reasonable terms. He noted she had provided a statement, although she had decided not to give evidence. In her statement she wrote that she had taken the phone back from him on 6 April 2012. She said when the police arrived at her home that evening she had told them where the Applicant lived. She said she gave him the phone back about 3 days later. 32The Applicant said he had never mentioned to her that he had engaged in any self-harm at any time, which might be considered unusual in circumstances where they had been in a relationship for some years and had attended counselling together in 2011. By contrast he also said, when asked in cross-examination, that she 'knows everything'. 33There was no medical evidence that the treatment of the Applicant was to counteract the administration of flux, nor other ingested material which required, for example, that his stomach be pumped. He, by his own admission, was very drunk. He had taken a large amount of non-prescription medication which, generally speaking, and in circumstances where a large amount of alcohol was being consumed, was an ill-advised quantity, but there was no medical evidence that this was dangerously excessive. 34I have come to the view that on 6 April 2012 the Applicant had not, by the time of police intervention, attempted suicide or self-harm. That is not to say though that I accept all his evidence in relation to that evening, by any means; I only find that he did not actually attempt suicide or self-harm. 35The Applicant conceded that once, after he had been sexually assaulted at the age of 15 or 16, he had attempted suicide. According to the hospital records it was in April 2000 (at age 18), when he was admitted to hospital after an attempted hanging, but recorded in the hospital notes as being after an argument with this girlfriend. 36In 2002 he was admitted to hospital with a cut to his left hand, and was reportedly feeling suicidal after having an argument. He denied at the time though that it was a deliberate cut. In cross-examination he denied telling the nurse who made the note that he had felt suicidal. He said he must have been mixed up with another patient. The notes also record that the 'patient reports multiple suicide attempts previously'. The Applicant agreed there had been a previous attempt but not 'multiple' attempts; "they" assumed if there was one attempt there must have been more. On further investigation the hospital accepted that he was not suicidal and that the knife wound was not deliberate. 37The Applicant was referred in cross-examination to an entry in the hospital notes dated 16 March 2008 (sic) that referred to him having 'mental health issues' and 'schizophrenia and paranoid'. He said this was an error because the date was actually 2009, his name had mistakenly been recorded as 'Scott' and he was said to have been 27 years old whereas he was 28. He said he thought people were talking about him at work and in fact they were. He was referred to a psychologist because 'they' thought he was paranoid. He said he only became that way when his ex-partner started 'misbehaving'. 38He had also been hospitalised at least twice with excessive alcohol consumption. He said his ex-partner had wanted him to stop drinking. He said he went to the doctor once about it and 'they' wanted him to be an in-patient which he refused to do. He denied he was alcohol dependent but said he really enjoys drinking. 39The Applicant provided an undated report from Thwahida Rangiah, a psychologist. She wrote that the Applicant had been referred to her by his GP on 18 January 2011 for treatment of his Generalised Anxiety Disorder and Conduct Disorder. He attended a total of 12 sessions for personal and marital counselling. She had not seen him since August 2011. Her report was not particularly helpful. 40On the evidence I find that the Applicant had attempted suicide by hanging in April 2000 which he related it to a particularly brutal sexual assault 2 years beforehand, although the hospital notes record that it was after an argument with this girlfriend. At the time he was aged 18; he is now aged 31. I do not consider that there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of one previous attempt to commit suicide now 19 years ago. Would issue of the licence would be contrary to the public interest? 41In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual". Lack of honesty and candour 42When applying for the licence, the Applicant did not record that he had previously attempted suicide. 43The Applicant was referred to having answered 'no' to the question: Have you ever attempted suicide or self-harm, or in the past 12 months been referred to treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?' 44Section 70 of the Act provides that a person must not, in connection with a licence application, provide information that the person knows is false or misleading in a material particular. 45The Applicant denied that he had deliberately attempted to mislead the Respondent and said he understood the question to mean whether he had attempted suicide in the past 12 months. He said the question was ambiguous and in any event he had comprehension problems, citing by way of example that it had taken him years to get his driver's licence. In contrast, his evidence was that he was able to set up computers and repair radios but these he said were 'not that hard'. 46I consider the Applicant's explanation to be naïve in the extreme. On the plain reading of the question, the Applicant was asked to indicate if there had been any previous suicide or self-harm attempts. On the Applicant's own evidence this was clearly the case. 47Even if I were to accept that the statement was not made with intention to mislead, it was nevertheless made without an appropriate degree of care. I am concerned as to that lack of care and the lack of personal responsibility for the strict requirement for disclosure. 48I agree with the view of JM Montgomery in Weckert v Commissioner of Police, NSW Police Force [2011] NSWADT 197 that the 'public interest' requires that licensees provide accurate information in regard to their applications. The success of the firearms licensing regime is dependent on that occurring. 49Of particular concern to me was the Applicant's evidence before me. The Applicant went to some lengths to attempt to distance himself from the telephone calls to Lifeline and the Poisons Hotline. Central to his contention was that he could not have made those calls because he was on the phone to his sister at the time the calls were made, and in any event, he did not, at that time, have the phone by which those calls were made. There are major flaws in the Applicant's contentions. Firstly, I reject his evidence and that of Ms Stone, that he no longer had the mobile phone on which the calls were made, and find the Applicant's explanation that Ms Stone's boyfriend had phoned Lifeline because it might be funny, or because it might assist in a potential custody dispute to be entirely implausible. While there may have been other people at Ms Stone's home who may have had access to the phone, the Applicant offered no explanation as to why they might have made those calls, and indeed, no likely explanation comes to mind. Furthermore, his mobile phone records would suggest, on his version of events, that his ex-partner (or someone to whom she subsequently loaned the phone that night) was making calls to his sister in the evening of 6 April 2012, before the police attended his premises and also while the Applicant was in hospital. (The hospital notes are equivocal as to whether the phone was confiscated.) 50Secondly, a number of calls were made from his phone to Ms Stone after the time he said she reclaimed the phone. One call was during the evening, only about 20 minutes before the Poisons Hotline call. It is highly unlikely that Ms Stone was telephoning herself. 51Thirdly, after comparing the phone records, it was entirely possible that the Applicant was using both the landline and the mobile during the course of the evening. The calls do not overlap. 52I also reject the Applicant's evidence that he did not tell his sister that he intended to kill himself. His sister, in her statement did not deny their conversation, noting instead, somewhat enigmatically, "I don't believe he is a threat to anyone and I don't believe that he is suicidal. He can be silly sometimes." This was not, in my view, inconsistent, with the evidence of Const. Bowling that she had said her brother had said he wanted to kill himself and that he was going to hang himself, but instead was a statement of her belief in whether he generally would carry out such a threat. I note in that regard too that there was no evidence that Const. Bowling knew of a previous suicide attempt by hanging, and would therefore have no reason to mention that the Applicant had intended to hang himself, other than if he had received that information from the Applicant's sister or from the Applicant himself. Further, I accept the evidence of Const. Bowling, as recorded contemporaneously in his notebook that the Applicant had said he "wanted the pain to stop" and "wanted the shit to stop". 53While I have accepted that the Applicant did not in fact attempt self-harm on 6 April 2012, I find that he, while affected by alcohol, and angry with his ex-partner, contemplated suicide, and but for the intervention of police, may have acted on that intention. 54His admitted suicide attempt by hanging in 2000 occurred after an argument with his girlfriend, according to the hospital notes. I reject his claim that it was in response to a sexual assault some 2 years beforehand. While that occurrence may have influenced his decision to take his life, the precipitating event was the argument with his girlfriend. 55As to his hospital admission in 2002 with a knife wound when he was reported to be "feeling suicidal after having an argument", he denied that this was an accurate entry and that he must have been mixed up with another patient. While I accept that he pointed out some errors in aspects of the hospital records generally, I doubt that such a serious and specific notation could have been made inadvertently. 56While he professes to have a reasonable relationship with his ex-partner, it was clear, from his evidence, that it is fact, at least from time to time, tempestuous. This is also clear from the several police reports of having to intervene: in September 2002, October 2002, March 2009, July 2009, and July 2011. His evidence in relation to 6 April 2012 was that the events of that evening were also precipitated by an argument. 57He also has a history of excessive alcohol abuse, such that rehabilitation was contemplated but the Applicant, on his evidence, declined intervention. There were a number of police reports of violent altercations in which alcohol was a factor. Conclusion 58I accept that the Applicant has only a modest criminal record. While it may be that some events in which he has come to notice were precipitated by the conduct of others, it remains, however, that he, has retaliated when provoked. Alcohol abuse also featured and his excessive alcohol intake continues. 59There is evidence of volatile relationships with others, especially his ex-partner. Given the opportunity, I cannot be assured the Applicant would not use a firearm when angry. 60The underlying principles of the Act stated in s. 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at [28], DP Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk". I cannot be so satisfied. 61In my view, the correct and preferable decision is to affirm the decision to refuse the Applicant's application for a firearms licence. DECISION 1. The decision under review is affirmed. ********** 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 October 2013