Appealing A Firearms Act Mental Health Revocation Part 2 - The Loose Cannon

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Simon Munslow answers your questions on firearms law.
Simon Munslow answers your questions on firearms law.

PART 2

SUMMARY OF THE LAW:

BACKGROUND

Since 1996, Australia has had strict gun laws that require an applicant be:

  • ·         over 18 years of age
  • ·         pass a course
  • ·         have a genuine reason and in respect to high powered firearms also a special need for a firearm
  • ·         be a ‘fit and proper person’, and
  • ·         that there be no public interest reason why they should not own a firearm.

One area that can be problematic is the issue of someone who is, or has been mentally ill, or had a drinking problem, and whether they should have access to firearms.

Section 3 of the Firearms Act 1996 sets out the principles of the Act. Relevantly they include:

(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

The legislation then goes on to impose a requirement that a person have a genuine reason, and in respect to high power firearms, a special need for requiring them, it also requires that a person be a ‘Fit and Proper Person’ and that there be no ‘Public Interest’ reason for not granting them a licence.

In determining that an Applicant is a ‘Fit and Proper Person’ and there are no ‘public interest’ grounds for rejecting the applicant, mental health is not an absolute bar to firearms ownership.

In order for someone to hold a firearms licence there must be ‘virtually no risk’ associated with them doing so (Ward v Commissioner of Police (2000) NSWADT 28). This is achieved by taking a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be considered. Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, “Minimal, fanciful or theoretical risk can be excluded from consideration”.

Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] – [66].

In a recent case in which a licence was revoked on the basis of perceived stressors arising from a difficult family breakdown and protracted litigation, the Tribunal were not satisfied that there was any appreciable risk as the ‘stressor’ argument was entirely speculative. EJU v Commissioner of Police (2020) NSWCATAD 270 the reasoning of the Webb decision that ‘only real and appreciable risks should be taken into account’ was applied. His licence was restored.

Risk to the public includes, of course, risk to the applicant
himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74]

Interestingly, it is clear from the instructive case of AML v Commissioner of Police NSW. (2013) NSWADT 5 (10 January 2013) that not every attempt at suicide will justify loss of a firearms licence.

‘Not every suicide attempt will justify the revocation of the person’s firearms licence. The Tribunal must assess the likelihood of attempted suicide or self harm again, and if that happens, the likelihood that a Firearm will be used.

The Tribunal did not accept the Commissioner's submission that before the reasonable cause test or the public interest test can be satisfied a person needs to enjoy a lengthy period of stability following treatment’.

Additionally:

However, as with the fit and proper person test, which requires a real and appreciable risk and discounts fanciful, theoretical and speculative ones, ‘reasonable cause to believe’ is not satisfied by mere assertion, and evidence is required to support the belief. EEN v Commissioner of Police (2010) NSWCATAD 87.

In granting a licence a commissioner must not issue a licence where:

11 (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.

The Firearms Act 1996 does not define ‘unsoundness of mind’.

This requires that the mental condition that the shooter suffers from render the applicant unsuitable for owning a firearm, and not all mental conditions do this.

You may or may not be of the view that in some, though not all, cases, suspension of, or loss of licence, can have a negative effect.

If so, please indicate this, and explain your reasoning.

REPORTS

In NSW, the Firearms Registry expects reports to answer the questions posed below. A report that does not answer these questions, or that does not provide reasons may be considered unacceptable.

The following questions are taken from the NSW Firearms Registry medical questionnaire, and you are asked to answer them.

Please read to the end before answering, consider the notes to assist that appear after the questions, and if you are not familiar with them read Uniform Civil Procedure rules that you are asked to read and acknowledge.

a. Providing a summary of their relevant experience or attach your CV.

b. Provide a Brief outline of relevant history taken.

c. How long you been treating the patient.

d. What, if any condition or impairment has the applicant been diagnosed with or suffered. Please utilise the current edition of the DSM or ICD.

e. Is the Applicant taking any medication that would have an adverse effect on their alertness (i.e., ability to operate a motor vehicle or machine) if so, to what extent are they impaired? Has the Applicant been told not to drive or operate machinery? Would this impact his ability to operate a firearm safely.

f. Has the Applicant ever deviated from any prescribed course of action or medication, relevant to the above-mentioned impairment? If so, what were the circumstances and results?

g. In your expert opinion:

(1) Is there a current risk that the Applicant’s condition or impairment may impact on their ability to exercise continuous and responsible control over firearms?

(ii) Is there a history that the condition or impairment has affected his or her ability to exercise the desired control over firearms in the past?

(iii) If there is a previous history, yet no current concern, why have circumstances changed?

(iv) Is it possible that the applicant will relapse?
2. In your expert medical opinion does the Applicant-

(I) Currently have the ability to form a rational judgement or to exercise will power to control physical acts in accordance with rational judgement?

(ii) Has the Applicant previously demonstrated an ability in this regard.

(iii) If there is a previous history, yet no current concern, why have the circumstances changed?

(iv) Is it possible that the Applicant will relapse? 3. In your expert opinion: -

(I) Does the Applicant’s condition or impairment have the current potential to put public safety at risk if they if they were to have possession or use of a firearm (please note that a reference to ‘public safety’ includes the safety of the person being assessed’).

(ii) Has the Applicant previously posed as a safety risk?

(iii) If there is a previous history, yet no current concern, why have the circumstances changed.

(iv) Is it possible that the Applicant will relapse?

4. Any other matters you consider relevant.

5. Is there any history that the condition or impairment has affected their ability to exercise control and responsibility over firearms in the past?

6. If there is a previous history, yet no current concern, why have circumstances changed?

7. Is there a possibility of relapse? Has the Applicant relapsed in the past? If so, please discuss their nature and extent of the relapse. Are you able to make predictions of how the Applicant may handle a relapse?

8. Whether the Applicant has the ability to form a rational judgement or to exercise will power to control physical acts in accordance with rational judgement.

9. Does the Applicant’s condition or impairment have the current potential to put public safety (public safety includes the Applicant) at risk?

10. Please acknowledge that you have read understood and complied with the expert witness code of conduct.

POINTERS

Some of the questions suggest a yes or no answer shall suffice. This is not the case, as your recorded observations should support your reasoning. If there is insufficient detail or reasoning, little or no weight shall be given to the report.

Describe the symptoms and the degree of symptomatology observed not just the diagnosis, as a patient may not manifest all of the symptoms that comprise of the DSM category.

Describe the patient's, ‘experience’ of the relevant condition, for example, in respect to depression, do they have violent, self-destructive, or impulsive tendencies? If so, describe them.

Comment in so far as you are able on whether a prediction can be made about the manner in which the Applicant may behave in the event of a relapse. Is it likely that they would seek timely help appropriately? In this regard, were you able to quickly develop a good therapeutic relationship with them, did they co- operate with treatment, including medication?

Have they learned any ‘lessons’ or had insights in therapy that would lead to them dealing with things differently? Please give examples.

If there was past suicidal behaviour, was a firearm available? and if so, was it used? was the attempt ‘real’ or a ‘cry for help.’ How did you form that view?

 

UNIFORM CIVIL PROCEDURE RULES

Your report must also comply with the NSW Uniform Civil Procedure Rules which provide as follows, and I draw your attention to paragraph 3 which has specific requirements.

An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness.

 

Simon Munslow

National Firearms Lawyer
P: (02) 6299 9690
M: 0427 280 962
E: solicitor@bigpond.com
W: firearmslawyer.com.au

Simon Munslow is a lawyer who has a lifelong interest in shooting, having acquired his first firearm at the age of nine, and has had an active interest in firearms law since writing a thesis on the topic over thirty years ago at university.
Simon Munslow practices extensively in Firearms Law matters throughout Australia.

He is a regular contributor to the Australian Sporting Shooter magazine’s website on Firearms law matters, has published articles on firearms reviews and firearms law, and occasionally is asked to comment in the broader media on firearms matters.

This article is written for general information only and does not constitute advice. 
He can assist you with:

Criminal law & Administrative law and in particular that related to Firearms

• All firearms, weapons and game charges
• Avoiding & setting aside Apprehended Violence Orders
• Possession of unregistered firearms
• Unsafe transportation & storage matters
• Applications for prohibited weapons
• License Appeals
• Freedom of Information / Government Public Access matters
• Importation & Customs problems
• Advice & opinions related to Firearms law matters

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