AIE v Commissioner of Police, NSW Police Force
[2012] NSWADT 18
•09 February 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: AIE v Commissioner of Police, NSW Police Force [2012] NSWADT 18 Hearing dates: 2 November 2011 Decision date: 09 February 2012 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: The Commissioner's decision to revoke AIE's Category AB firearms licence is confirmed.
Catchwords: Firearms Act 1996 - revocation of firearms licence - public interest Legislation Cited: Firearms Act 1996
Firearms Regulation 2006Cases Cited: Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266
Comalco Aluminium (Bell Bay) Limited v O'Connor and Ors (1995) 131 ALR 657
Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9
Director of Public Prosecutions v Smith (1991) 1 VR 63
Ward v Commissioner of Police (2000) NSWADT 28Category: Principal judgment Parties: AIE (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: Counsel
G Brady
Nyman Gibson Stewart (Applicant)
Sparke Helmore (Respondent)
File Number(s): 113040 Publication restriction: s75 of the Administrative Decisions Tribunal Act 1997 applies
Reasons for decision
Introduction
[GENERAL DIVISION, P H Molony, Judicial Member] AIE is a 42 year old married man, with children, who runs his own security business. He was the holder of a Category AB Firearms Licence.
On 6 June 2010 while at premises for which his firm provided security (albeit for social purposes of his own), AIE, when saying goodnight to his guards, became involved in an altercation with two men who had been refused entry to the hotel. In the course of that altercation he punched one of them, who fell to the ground, hitting his head and sustaining a brain bleed. This man was taken to hospital and placed in an induced coma. His prognosis at that time was uncertain. As a result of this incident, AIE was charged with recklessly causing grievous bodily harm. He at all times maintained that he had acted in self-defence.
On 16 June 2010 the New South Wales Police received a disclosure of information by a health professional under section 79 of the Firearms Act 1996 (`the Act') relating to AIE. Section 79 provides -
(1) If a health professional is of the opinion that a person to whom the health professional has been providing professional services may pose a threat to public safety (or a threat to the person’s own safety) if in possession of a firearm, the health professional may inform the Commissioner of that opinion.
(2) A health professional is not subject to any criminal or civil liability, including liability for breaching any duty of confidentiality, if the health professional informs the Commissioner in good faith of the health professional’s opinion referred to in subsection (1).
(3) In this section:
health professional means any of the following persons:
(a) a medical practitioner, psychologist, nurse or social worker,
(b) a person who provides professional counselling services,
(c) a person who is of such other class of health professional as may be prescribed by the regulations.
An examination of the notification reveals that the health professional concerned advised Police that AIE had access to his own firearms. In response to a question concerning whether there “is a risk that the medical condition of this person my pose a threat to the public or a threat to their own safety in possession of a firearm,” the health professional ticked a box labelled “unknown.”
In a fax to the Firearms Registry which accompanied the notification a health professional wrote -
“New referral to this service after being seen at Gosford ED yesterday.
- Suicidal ideation
- Has firearm → given bullets to neighbour.
- Security guard.
- Lives with partner & 3 kids.”
In his evidence to the Tribunal AIE said that following the incident on 8 June 2008, and while the man he had hit remained in a coma, he had experienced anxiety and panic attacks. The prospect that the man might not recover, or might die, and the likely consequences to himself and his family weighed heavily on him. He did not want to go to prison.
AIE said that while he did not think about suicide at that time, he did think about not thinking about it. As a precaution, he removed his ammunition from his home and placed it in the custody of a friend. The anxiety also led him to seek medical help, by presenting at Gosford Hospital. It was following his presentation there that a health professional sent the notification to the Firearms Registry.
The next day AIE’s firearms licence was suspended. On 18 June 2011 the Firearms Registry wrote to AIE advising it had “received information that you have made threats of self harm.” It requested that he provide a report from a doctor, psychiatrist or psychologist to enable his suitability to continue to hold a firearms licence to be assessed.
On 29 October 2010 the AIE’s licence was revoked by a delegate of the Commissioner on the basis of the serious criminal charges that he had been charged with, as well as the concerns held by the Delegate about his mental health. The licence was revoked in accordance with Clause 19 of the Firearms Regulation 2006 on the basis that it was not in the public interest for AIE to continue to hold his firearms licence.
AIE made an application for internal review of the decision to revoke his firearms licence. The internal review was completed in 19 January 2011. The decision of the delegate was affirmed on two bases:
- First, AIE’s mental health. At the time of the internal review AIE had not provided the Commissioner with a report from a medical practitioner addressing the areas of concern regarding the applicant's mental health.
Secondly, the serious criminal charges laid against him.
On 22 February 2011 the applicant filed his application for review of that decision with the Tribunal.
On 4 May 2011 the criminal charge against AIE was dismissed by the Downing Centre Local Court.
AIE’s application for review was listed for hearing before me on 2 November 2011. He was represented by Mr Brady, while Mr Zoppo represented the Commissioner.
Issues
As the criminal charge against AIE had been dismissed by the time I heard the review application, the Commissioner was no longer relying on it as grounding a public interest for revocation of AIE’s firearms licence. The issue was whether, in the light of the evidence concerning AIE’s mental health, it was not in the public interest that he continue to hold a firearms licence.
The Applicable Law
Section 24(2) of the Firearms Act 1996 provides that a licence may be revoked for any reason prescribed by the regulations. Clause 19 of the Regulation provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for a licensee to continue to hold a licence.
The term 'public interest' is not defined in the Act or Regulation.
In Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9, a case concerning similar provisions in the Security Industry Act, the Appeal Panel said at [25] that the public interest is:
`...an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing weather to exercise their discretion adversely to an individual.'
The purpose of a reference in legislation to the public interest is to ensure the private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Limited v O'Connor and Ors (1995) 131 ALR 657 at 681. The relevant interest is therefore the interest of the public as distinct from the interest of an individual or individuals: Director of Public Prosecutions v Smith (1991) 1 VR 63.
A discretion to issue or revoke a licence must be exercised having regard to the licenced activities. Thus the objects and purposes of the Act are relevant.
In Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266 at [21] the Tribunal said:3
“The objects and principles of the Act state that the firearms are a privilege and inherent in the requirements is that persons who have access to firearms must act responsibly. Where there has been or is a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. The principle issue then is whether there is a risk to the safety of the public if Mr Albury retains the licence.”
In Ward v Commissioner of Police (2000) NSWADT 28 at [27 - 28] the Tribunal said:
“One of the objects of the Act as set out in Section 3 is to 'confirm firearm possession and use as being a privilege that is conditioned on the overriding need to ensure public safety'. In determining whether Mr Ward is a fit and proper person to hold a license consideration must be given to the circumstances surrounding his conviction for assault. The question for the Tribunal is whether, based on all of the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.
The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.”
The Evidence
The documentary evidence before the Tribunal consisted of:
The respondent’s s 58 documents.
Medical records produced by the Hunter New England Mental Health Service under summons. In accordance with a request from the mental health service the Tribunal made an order on 14 June 2011 giving both parties legal representatives access to those documents, but prohibiting AIE from having access to them himself.
- A psychological report dated 4 June 2011 prepared by Dr Clarinda Payne, Psychologist.
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In addition AIE gave sworn evidence and was cross-examined.
Consideration
The issue for consideration in this case is whether, in the light of the evidence, the Tribunal can be satisfied that there is virtually no risk to the public safety should AIE continue to hold his firearms licence.
In her report Dr Payne recounted a detailed history of AIE, including his past and present treatment for mental health issues. In brief, that history revealed that AIE had an episode on panic attacks, anxiety and depression when he was 34 years old: following his father’s death. About the same time he had back surgery. Her report also noted that AIE had attended numerous spiritual counselling sessions in pursuit of his own interest in such matters. This was confirmed by AIE in his own evidence. He said he had a long standing interest in matters of the spirit and self-improvement. Dr Payne indicated that she was unsure of the qualifications of these counsellors, but commented that AIE appeared to derive benefit from these sessions.
AIE confirmed that he had experienced anxiety and panic attacks when he was 34 following his father’s death.
That history is in marked contrast with that recorded by the health professionals at the mental health service, when AIE was referred to them by Gosford Hospital in June of 2010. The documents produced by that service record the history provided by AIE to them at that time. Among the details there recorded are:
“H/x of chronic anxiety and panic attacks and PTSD related to back surgery.” (16 June 2010)
“Has psychiatrist Dr Heather Tucker. Seeing her Thursday.” (16 June 2010)
“Has seen numerous psychologists and psychiatrists privately – no other MH contacts in chime.
Dx with PTSD by Dr Tucker.” (16 June 2010)
The mental health services attempted to contact Dr Tucker whose office advised that “she does not know [AIE].”
In his evidence AIE said that he had seen Dr Tucker at Gosford Hospital when he sought assistance in June 2011. There is no indication of this in the medical records produced under summons, which include those from the Emergency Department at Gosford Hospital.
AIE agreed that he had been treated for a mental health condition, which he variously referred to as anxiety and PTSD, about the time of his father’s death, when AIE also underwent back surgery. He explained he had experienced panic attacks following his father’s death, and had been traumatised by his surgery.
AIE said that he has seen two female psychologists. One of these was Dr Clarinda Payne whose report was before the Tribunal.
AIE said he had also consulted his General Practitioner, who had prescribed antidepressants, which he had taken until the news came through that the man he had hit was out of his coma. He had also been referred to a psychologist at Kogarah, Mr Borenstein, who he had had five sessions with. He considered that those sessions had been very beneficial, and said that if he experienced any problems in the future, he would immediately seek Mr Borenstein’s assistance.
In answer to a question asked in cross-examination AIE said that the last health professional he had seen following the events of June 2010 was Dr Payne. He had seen Mr Borenstein before then, and did not think that he needed ongoing counselling.
In her report Dr Payne noted that AIE told her that he had been prescribed antidepressant medication when he was charged with assault. This is consistent with AIE’s oral evidence to the Tribunal. The records produced by the mental health service, however, show that when triaged AIE was prescribed Cipramal 20mg (an antidepressant), Antenex 5mg PRN (Diazepam) and Seroquel 25-50mg PRN (an antipsychotic). The Seroquel was prescribed at the Gosford ED on 15 June 2010. He said that his General Practitioner had prescribed the antidepressant. The mental health service records of 19 June 2010 also record that AIE’s wife “phoned Wyong Hospital, asking if he could get more Seroquel.” While Dr Payne gained access to the medical records after she had assessed AIE, he did not tell her and she did note that he had been prescribed Seroquel.
In her report Dr Payne outlined the history AIE had provided her with, and reported on a number of psychological tests she had AIE perform. She noted that his responses to the PAI yielded a score on the positive impression management scale outside the normal range –
The client's pattern of responses suggests that he tends to portray himself as being relatively free of common shortcomings to which most individuals will admit, and he appears somewhat reluctant to recognize minor faults in himself. Given this apparent tendency to repress undesirable characteristics, the interpretive hypotheses in this report should be reviewed with caution. Although there is no evidence to suggest an effort to intentionally distort the profile, the results may under-represent the extent and degree of any significant findings in certain areas due to the client's tendency to avoid negative or unpleasant aspects of himself.
Despite this, Dr Payne described AIE as open and honest and concluded that his test results were consistent with his stated motivation of demonstrating “that he is not pathological.” She observed that he did not “appear to omit information about significant problems.”
During the course of her examination AIE denied experiencing suicidal ideation now or in the past. In his evidence before the Tribunal AIE also denied thinking about harming himself. When pressed he said had been afraid that he might think about self-harm. Dr Payne had regard to a number of entries in the mental health service records where AIE was noted as demonstrating suicidal ideation. She concluded –
It appears [AIE] has thought about suicide and may
have considered the plan of using a firearm to kill himself in the event that a prison sentence appeared imminent, however, at no time did he report any intention of following through on these thoughts, nor did he have access to the means to take action on his plans since he gave his ammunition away; further, he reported that he would contact mental health professionals if he ever had thoughts of suicide in the future. Ultimately, it seems [AIE] presents a low risk of suicide; this risk would be increased at times when significant stressors elicit anxiety and panic, however, it appears likely he would respond adaptively by presenting to mental health services should his risk increase.
She concluded that at the time of her examination AIE was “free from psychopathology and could not be diagnosed with any psychiatric condition.” She thought he might profit from ongoing cognitive behavioural therapy “to better manage stress and avoid experiencing anxiety at a clinical level again if/when faced with extreme stressors in the future.” She wrote that –
It is possible that if faced with extreme stressors in the future he could show reactive anxiety which is likely to affect his ability to think and concentrate. There is a low risk that reactive anxiety could be associated with thoughts of suicide. However his past behaviour suggests that if this occurred he would identify the problem and act appropriately to reduce any risk. This, it is highly, unlikely that [AIE’s] ability to exercise continuous or responsible use of his firearm would be negatively affected by his psychiatric status.
As already noted AIE had not sought any treatment since he was seen by Dr Payne. He indicated that he did not consider that ne needed such assistance at this time, but would seek appropriate treatment if and when he required it. He was confident that there was no risk to himself or the public should he continue to hold a financial affairs.
While I accept that AIE honestly holds this opinion and that the risk to himself and the public, should he hold a firearms licence, is a low risk, I am unable to find that there is virtually no risk. There a number of reasons why I have reached this conclusion.
First, AIE continues to operate his security business. It was in the context of that business that the events which precipitated the decline in his mental health in June 2010 occurred. While the precise events of that night are unlikely to repeat themselves exactly, as part of his duties he regularly deals with similar situation that are capable of going wrong, and could provide a trigger for his mental health to again deteriorate.
Secondly, it is apparent both from Dr Payne’s report and AIE’s evidence to the Tribunal, that AIE has consistently refused to accept that he demonstrated suicidal following the events of June 2010. While this may reflect his desire to present himself as “not pathological” it is entirely at odds with his conduct in handing his ammunition to his friend and the records of the mental health unit.
Thirdly, the evidence concerning AIE ‘s history of treatment for mental illness is in my view unsatisfactory. The mental health team was unable to sort this out. AIE in his evidence was unable to give a coherent account of who had treated him before the events of June 2010. Similarly, his failure to refer to the fact that he had been prescribed Seroquel is of concern.
Fourthly, as each of the above factors tends to demonstrate, I am not satisfied he has a clear insight into the condition he suffered in June 2011, focussing as he does on the external circumstances which precipitated it. I am not satisfied that he has an insight as to what that events says about his future vulnerability, especially given his rejection of Dr Payne’s recommendation that he undergo further cognitive behavioural therapy.
In those circumstances I am unable to find, at this time, that there is virtually no risk should AIE continue to hold a firearms licence. As a result I confirm the decision of the Commissioner to revoke his firearms licence.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
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Decision last updated: 09 February 2012
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