Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Finnigan v Commissioner of Police, NSW Police Force [2014] NSWCATAD 102 Hearing dates: 30 June 2014 Decision date: 17 July 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Naida Isenberg, Senior Member Decision: The decision under review is affirmed. Catchwords: Firearms licence revocation - public interest Legislation Cited: Firearms Act 1996 Administrative Decisions Review Act 1997 Cases Cited: Shi v Migration Agents Registration Authority [2008] HCA 31 Wiltshire v Commissioner of Police, New South Wales Police HYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWADT/2005/75.html" \o "View Case" [2005] NSWADT 75 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 Jones v Dunkel [1959] HCA 8 Commissioner of Police v Toleafoa HYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWADTAP/1999/9.html" \o "View Case" [1999] NSWADTAP 9 AML v Commissioner of Police NSW Police Force [2013] NSWADT 5 Category: Principal judgment Parties: Applicant: Ashley Finnigan Respondent: Commissioner of Police, NSW Police Force Representation: A Finnigan (Applicant in person) Minter Ellison Lawyers (Respondent) File Number(s): 141201 reasons for decision Background 1The Respondent has decided to revoke the firearms licence of Ashley Finnigan, the Applicant, on the basis that there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of a previous attempt to commit suicide or cause self-inflicted injury: see s.24(2)(a) and s.11(4)(b) of the Firearms Act 1996 (NSW) ("the Act"); and because it is not in the public interest for the Applicant to continue to hold a firearms licence: see s.24(2)(d) of the Act and cl. 19 of the Firearms Regulation 2006 2The Applicant sought internal review of the decision to revoke his firearm's licence, but the decision was affirmed. He has applied for review of the Respondent's decision. The Law 3The general principles of the Firearms Act 1996 ('the Act') are set out in s.3 of the Act: 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. 4Section 24 (2) provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. 5Section 24(2) of the Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. 6The Act, in setting out restrictions on the issue of licences, provides, in s.11, relevantly: ... (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: ... (b) any previous attempt by the Applicant to commit suicide or cause a self-inflicted injury, ... (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. .. 7Section 63 of the Administrative Decisions Review Act 1997 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 decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. EVIDENCE 8In addition to the s.58 documents, I had before me the records of Gosford Hospital in respect of the applicant's admission on 20 December 2013. The applicant also tendered other records from the hospital and references from Robert Morgan, an instructor at the applicant's course, and Alana Clavin, a former employer. He also provided 2 reports from Belinda Preston, registered psychologist dated 23 May and 26 June 2014. The applicant gave evidence, as did Ms Preston. CONSIDERATION 9In the internal review decision the Respondent noted there was no issue about the Applicant's character and there was no indication that the Applicant had previously breached firearms legislation. The revocation was due to the incident when the applicant was admitted to Gosford Hospital on 20 December 2013 when it was reported he had taken an overdose of a number of drugs and had a superficial self-inflicted wound on his arm. As concerns for his mental health had not been eliminated, the delegate was not satisfied that the Applicant currently had the capacity to personally exercise continuous and responsible control over firearms. 10The applicant recounted the events of the evening. He said he had just completed his year's studies in Certificate III and Diploma in Outdoor Recreation, having crammed 2 years study into one. This was the first opportunity to have some time off. He had been out with friends during the preceding week, but on Friday 20 December he went out with a close friend whom he hadn't seen for a few months. He started with one tequila shot, then, to the best of his recollection, had about 4 schooners of full strength beer, 4-5 bourbon and lemonades, and 3-4 Midoris and pineapple juice. Before leaving the club at about 10.30pm, he used the club's breathalyser which indicated a blood/alcohol level of 0.178. He said he went home, had a shower and got ready for bed. He took his usual bedtime medication: one Oxycodeine (for his shoulder pain) and 4 Temazapan, although his usual dose was 2 Temazapan. He understood it had been prescribed to help him sleep, and, as he wanted to have a good night's sleep, took 4, when they accidentally came out of the bottle, instead of putting them back. In summary, with the exception of taking 4 instead of 2 Temazapan, it was his usual nightime routine. He has no recollection of what occurred after that until he came to in hospital the next day, but was adamant though that his recollection of the medication he consumed was reliable. He understands he fell asleep with the light on and when his godmother came home from work late that night, she tried to wake him. When she was unable to rouse him and he told her he had taken his medication, she called the ambulance. 11The hospital records noted that the applicant was admitted, having taken 10 Temazapan, 4 Oxycodeine, 20 Phenergan, 2 Panadeine forte, 4 or 5 anti-depressants and with a superficial cut to the left forearm. The applicant or his godmother were reported to have provided information to the hospital which was noted in the history of the presenting problem. "Suicide is the only option when you run out of things to help you cope". The previous Wednesday his girlfriend had ended their relationship when she moved out of the property at Scone where the applicant had been spending half the week with her and looking after the horses, and half the week with his godmother; there had been increased alcohol intake for a week and no food since the breakup. 2 days beforehand the girlfriend had relented, then the previous night she had reportedly sent him a text message ending their relationship. There had been no previous suicide attempts but the applicant had held a gun to his head when his mother had died in 2011. There was a report of deliberate self-harm in relation to scars on his thighs: "cutting started in high school". There was a report that the applicant had used cannabis after his mother had died and had used it again a week before the admission. He was recorded as having had one Midiori and pineapple juice the previous night although had increased his alcohol intake over the past week. In the mental health assessment his mood was recorded as being "2" on the "happiness" scale of 1-10. "I failed", he was quoted as saying, which was said to relate to his suicide attempt. He was said to be ambivalent about living or dying. 12The applicant took issue with nearly every entry in the hospital records. He said those records were unreliable because he was clearly drunk and would have said anything. He thought the barrage of questions he had been asked were suggestive of the required response. In support of this contention he referred to the notes (page 19) have described him as being, for example, drowsy, confused, unable to pay attention, upset and experiencing hallucinations. He pointed to anomalies in the records, for example, that the amounts of drugs he had allegedly taken differed in the various notations throughout the records. He said the notation about breaking up with his girlfriend would suggest that had occurred on 3 different occasions. 13The applicant was invited to identify other aspects of the notes which he said were misleading. He said that the quote about suicide was one he had learned in his studies because one of the aspects of the course is dealing with troubled young people. As to how the question of suicide had come up, he said that the hospital had assumed his admission was due to a polysubstance overdose, so as far as the hospital was concerned, it was a suicide attempt. They must have asked "Did you try to commit suicide?" or "Have you ever thought about suicide?" If that were the case, he submitted, what he was reported to have said was an appropriate answer. 14He was asked about his mood, being recorded as being "2" on the "happiness" scale of 1-10. He said at the time he was very unhappy about being in hospital because he hates hospitals, and that is what the answer reflected. He denied that he was 'ambivalent about living or dying' as had been recorded, and denied that "I failed" related having failed in a suicide attempt. 15As to the cut on his arm, he referred to the letter from his friend who was with him when he had an accident in the garden. As to the reference to deliberate self-harm and 'cutting started in high school', the applicant said that he had cut himself on some horse equipment when he was at school and it needed only to be treated with home remedies. As to the use of the term 'cutting' he said that hospital staff had mis-interpreted his scars and assumed they were deliberate because they were examining him in the context of what they believed was a suicide attempt. 16He agreed that there had been 'issues' with his girlfriend in the previous couple of weeks but things were never 'extremely bad'. He said they needed time to communicate properly. She had had to move out because she got a job that required her to live on-site. He said he must have told the hospital staff that she had moved out and that accounted for the entry. The text message must have been her message that she had finished moving out but needed his help with the horses. As to the relationship having 'ended', he said that they are in fact still together. He denied that the relationship had ended the previous Wednesday, as recorded. 17As to the notation that he had used cannabis after his mother died, he said he had been offered cannabis but had not used it. He denied using it a week beforehand as recorded, because it would be damaging to his body and he is very committed to his fitness. He denied having used Phenergan for 2 years 'on and off to sleep', as recorded, because it was a medication prescribed for sinus relief after his rhinoplasty. He denied holding a gun to his head on his mother's death in 2011, as recorded, because he was not licensed to have firearms until August 2012. 18As to the record of a week-long alcohol binge following the breakup, he said that he had been drinking when catching up with mates but had not been drinking heavily until the night of his hospitalisation. As to the notation that he had not eaten for a week, he said he was heavily involved in fitness and was taking protein powders and thought his godmother must have reported that he was missing dinner. As to the report that he had 'staggered' from the bedroom and told his godmother he had overdosed he said she had tried to wake him up. 19He said that since that time he has consumed a total of only 2 light beers. He takes no medication except Panadeine forte, which has been prescribed to take, as necessary, for his kidney stones. 20The Respondent submitted that the applicant's account of what had occurred was far-fetched. It was conceded that, many aspects of his account, taken in isolation are plausible, but when taken together, required the suspension of disbelief in order to accept that the hospital records could have so inaccurately recorded what had occurred and what the applicant had said. 21I agree that most of the entries disputed by the applicant could, individually, could be discounted by the explanation he offered. I accept that the applicant was unwell and perhaps somewhat incoherent during his hospitalization, especially in the initial stages. Still, he was not the only person providing the history - his godmother was responsible for arranging his admission and is likely to have provided some of the information which was recorded. Even allowing for the possibility of some over-statement by a concerned friend, this still does not adequately explain some explicit entries. The godmother was not called to give evidence. Neither was the girlfriend, who could have explained the breakup 'misunderstanding'. The applicant claims to have been incoherent because of alcohol consumption, whereas the hospital records note minimal consumption that night. His friend, with whom he was drinking was not called to give evidence. (The toxicology results were unhelpful in deciding if it were alcohol or drugs which were affecting him.) While statements had been arranged from others, such as his friend who was present when his forearm was cut, and from referees, no statements were provided by these important witnesses. While I may not expect an unrepresented Applicant to understand the niceties of Jones v Dunkel [1959] HCA 8, from his evidence, he is still in a relationship with the girlfriend so a statement from her would have been readily obtainable. The applicant himself invited attention to the hospital discharge referral notes that noted that his "story changes depending on who asks him the question". I consider this to be an accurate assessment of his evidence in this matter. Even on the applicant's own evidence he had consumed large quantities of alcohol and then taken, what he knew to be additional medication. He took that medication, he said, in the belief that it would help him sleep, but in circumstances where he had consumed so much alcohol, it seems unlikely that he would reasonably have understood he needed to take a double dose in order to achieve a 'good night's sleep'. 22It was against this background then that I must consider the weight to be attached to Ms Preston's evidence. Not every suicide attempt will justify the revocation of the person's firearms licence: AML v Commissioner of Police NSW Police Force [2013] NSWADT 5 23In her first report Ms Preston wrote that the applicant had attended for treatment and she supplied a psychosocial assessment in support of his application to have his gun licence re-instated. She had taken a history that the applicant had been diagnosed with Major Depressive Disorder in 2011 at which time he was prescribed Temazapan, an antidepressant medication, although the applicant believed it was to assist his sleeping. Furthermore, the applicant stated that he has only been prescribed one antidepressant that he was aware of at the time, but now realises he was prescribed an antidepressant on another occasion. 24The applicant told her he disagreed that he was hospitalised in December 2013 for a suspected suicide attempt or for engaging in deliberate self-harm. He explained to her how he had previous problems with a dislocated right shoulder and was prescribed Panadeine Forte by a doctor as a pain relief. He told her he was taking Phenergan 5mg each morning in December 2013 to assist with treatment for problematic sinus due to previous broken nose on a three separate occasions, and was taking Oxycodeine to assist pain with right shoulder injury. 25He was assessed with stable mental health and that he was in remission from depression and presented as a compassionate, kind, polite young man who, in her view, is responsible and safe to carry firearms. 26In her second report Ms Preston referred to the medical information she had available to her. These did not include the Gosford Hospital notes in relation to his admission in December 2013. 27She wrote that she had been treating the applicant since 21 May 2014 and he had had six counselling sessions. She referred to his diagnosis of Major Depressive Disorder following a depressive episode occurring between August and December in 2011, which, in her view, was a grief reaction to the death of his mother. She noted his dislocated right shoulder for which he was prescribed Panadeine Forte for pain relief around the same time. He told her how he had recovered from depression during 2012, which is evidenced by having completed a Diploma in Agriculture, and his ability to currently undertake full time study of a Diploma in Outdoor Recreation. He currently takes no medication. 28The applicant had told her that on the night of 22 (sic) December 2013, he was admitted to Gosford Hospital for an alleged suicide attempt. He explained how he took 4 Temazapan tablets and one Panadeine Forte for pain relief for his shoulder after arriving home from being out drinking with a friend. When his aunty (sic) arrived home at 11pm, a short time later she was unable to wake him and called an ambulance. He denied that he had attempted suicide that night or previously. 29The applicant had been assessed on 16 December 2013 by Dr P Mala, psychiatrist. She noted he had previously experienced suicide ideation although with no intent to die or specified plan to take his life. Additionally she had conducted a suicide risk assessment and determined that the applicant had a twelve month history of suicide ideation in 2011-2012. He reported that he has never willingly (sic) attempted to take his life. 30She viewed the applicant as currently presenting with no risk of suicide or homicide. Furthermore he had been assessed as being in remission from depression since January 2014. He had spoken openly about his thoughts of suicide after the death of his mother in July 2011, although acknowledges that at no time did he have any intention to use a firearm on himself or another person or animal which is not considered a pest to farmlands (ie foxes, pigs, wild dogs). In summary, she assessed him as safe to carry, possess and use firearms at this time. 31As to the possibility of relapse she wrote that there is always a possibility of a relapse in that he may experience another episode of depression in the future. Onset of depression would depend on his life circumstances and he would be at an increased risk when and if he was exposed to numerous stressful experiences or if he experiences the loss of a loved one. The effects of accumulative grief may increase the likelihood he would experience an onset of depression and the return of suicide ideation. Historically, he had not presented with a history of intentional deliberate self-harm and has no history of intentionally suicide attempts. 32Ms Preston gave evidence confirming she had not seen the Gosford Hospital notes of the applicant's admission in December 2013 and said that she had come to her view on the basis of the history given to her by the applicant, and such information as she had available to her. Aspects of the notes were read out to her, noting that the applicant denied most of the information that had been recorded in the notes. As she had noted in her report there was a possibility of relapse if the applicant were again to experience loss, such as the loss of a loved one, as he had done when his mother died. That is not to say he would consider suicide, but if the Tribunal were to accept the hospital records as an accurate history, she considered there was increased risk. 33I find her evidence did not unequivocally rule out the possibility of suicide if the applicant's circumstances were such as to cause a relapse of his diagnosed depressive disorder. 34I accept that the applicant seeks the return of his firearms licence so he can continue to participate in clay shooting. I also accept that he may find the use of firearms helpful in controlling pests on his family property. To a lesser degree I also accept that having a firearms licence may be advantageous if he were to obtain employment in the United States. However, it is well accepted that any licence in respect of firearms or weapons, is a privilege and not a right. The Applicant's desire to pursue a particular sport, or to maximise possible future careers options, or for that matter, to assist in the control of rural pests, does not outweigh the need for public safety: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [22]. His personal interest in having his licence cannot outweigh the public interest: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [22]. 35In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, the Appeal Panel said at [25], in the context of the licensing regime for the security industry, that the public interest is: ... an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal. 36The 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. 37In all the circumstances, I am reasonably satisfied, based on public interest grounds, that there is no reason for the Applicant to continue to hold a firearms licence. In coming to this view, I note that the applicant is not precluded for applying for a licence again, when a clearer picture of his long-term mental stability is to hand. DECISION 38The decision under review is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2014