AIU v Commissioner of Police, NSW Police Force

[2012] NSWADT 36

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AIU v Commissioner of Police, NSW Police Force [2012] NSWADT 36
Hearing dates:	4 October 2011,29 November 2011
Decision date:	08 March 2012
Jurisdiction:	General Division
Before:	P. H. Molony, Judicial Member
Decision:	The Commissioner's decision to revoke AIU's firearms licence be set aside.
Catchwords:	Firearms Act - firearms licence - revocation - public interest
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996
Cases Cited:	Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266 Director of Public Prosecutions v Smith (1991) 1 VR 63 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 Ward v Commissioner of Police (2000) NSWADT 28
Category:	Principal judgment
Parties:	Applicant - AIU Respondent - Commissioner of Police, NSW Police Force
Representation:	Applicant in person Respondent - C Zoppo
File Number(s):	113163
Publication restriction:	S 75(2) of the Administrative Decisions Tribunal Act 1997 - order prohibiting the disclosure or publication of the name of the Applicant and his wife.

REasons for decision

Anonymisation

1. The Tribunal has made an order under s 75(2) of the Administrative Decisions Tribunal Act 1997 prohibiting the publication of the Applicant's name or that of his wife. That order was made because the evidence and this decision traverses matters affecting her mental health, which the parties and Tribunal considered should not be publicly disclosed. As a result the Applicant's name had been anonymised.

Background

1. AIU has held a Category A firearms licence since 12 January 2000.

1. On 8 April 2011 that the Commissioner made a decision to revoke his firearms licence on the ground that it was not in the public interest for AIU to continue to hold a licence.

1. AIU sought an internal review of that decision. On 23 May 2011 the Commissioner confirmed that decision on internal review on the same grounds. One basis for the decision was AIU had threatened self-harm on two occasions over a lengthy period of time, and in October 2010 had taken steps to achieve that object by placing a cord around his neck.

1. AIU subsequently filed an appeal against that decision with the Tribunal.

1. The hearing of AIU's review application took place over two days on 4 October and 29 November 2011.

1. During the haring the Tribunal heard sworn evidence from:

AIU

• his wife
• Dr Susan O'Loughlin, Consulting Psychologist
• a friend of AIU
• Senior Constable Matthew Robertson

1. The Tribunal also listened to recordings of 000 calls made by Mrs AIU on the evening of 1 December 2010.

1. The Tribunal considered the following material:

• AIU's application and attachments
• The s 58 documents filed by the Commissioner
• A transcript of a 000 call made by Mrs AIU on 1 December 2010
• The statement of Senior Constable Matthew Robertson

The Applicable Law

1. 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.

1. The term 'public interest' is not defined in the Act or Regulation.

1. 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 whether to exercise their discretion adversely to an individual.'

1. 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.

1. A discretion to issue or revoke a licence must be exercised having regard to the licensed activities. Thus the objects and purposes of the Act are relevant.

3

In Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266 at [21] the Tribunal said:

"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."

1. 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."

1. The issue for determination was, therefore, whether, in the light of the evidence concerning AIU's mental health, it was not in the public interest that he continue to hold a firearms licence.

The evidence

1. AIU has been married to his present wife since 1999. They live in country NSW. Mrs AIU told me that she suffers from severe depression and acute anxiety. Dr O'Loughlin is treating her for her mental health issues.

1. AIU told me that in 1997 he had separated from his first wife in difficult circumstances. He was clearly bitter about this, and about the subsequent division of matrimonial property between them.

1. In 1998 he was diagnosed with PTSD following an incident where he had been threatened with a gun, by a parent, in the course of his employment as the principal of a country school. This had led to him being medically retired in 1999, He had difficulties relating to parents and when dealing with crowds. A psychiatrist treated him at the time including prescribing Zoloft, an antidepressant (SSRI). That treatment was successful and he has not experienced difficulties as a result of PTSD for some years. He has moved to his new home and married his present wife.

1. The events, which precipitated the Commissioner's decision to cancel AIU's firearms licence, occurred on 1 December 2010.

1. According to AIU, after retuning home from golf with a friend, he became involved in a verbal argument with his wife. The cause of the argument was his belief that her siblings were shirking their familial duties and placing an undue burden on her. There had been a discussion between Mrs AIU and her brother that afternoon that had left her upset. The argument between AIU and his wife became more heated when AIU insisted that he speak with her brother, contrary to her wishes.

1. AIU says that during this argument he threw a glass of scotch to the ground in frustration. He then resolved to go and visit her brother and, anticipating that he would not be allowed back home if he did so, grabbed some clothes and left the house. When asked by his wife where he was going, he said, "You will hear about this within 48 hours." He got in his car and sped of up their long driveway, leaving his wife at home with his friend.

1. At 7:41 that evening AIU's wife rang 000. The transcript of that conversation shows that the following interchange occurred:

Operator: Thank you. Police emergency, this is Lisa, hello?

Caller: Uh, hello, my husband has just driven off in a rage, um, has threatened to, urn, do himself in, he's speeding, urn... (sighs)

Operator: Alright, what, what, what premises you need? What's the address?

Operator: Urn, [address] .

Caller: Ok, and do you know the registration of the car?

...

Caller: It's a olivey green, um, Holden adventure station wagon. His name is AIU .

Operator: That's alright. Now has he been drinking or taking drugs?

Caller: He's been drinking

Operator: Ok

Caller: I don't know how much

Operator: Alright. How old is he?

Caller: He's 58

Operator: Alright, has anything happened like this before?

Caller: Ah, once

Operator: Ok, he doesn't take medication for anything?

Caller: No

Operator: No? Did he indicate where he might be going?

Caller: No

Operator: But he was speeding when he left?

Caller: He was, and he said in 48 hours I'll read the notice in the paper

Operator: What direction did he leave?

Caller: I don't know whether he's likely to turn right or left when he gets onto, on the (indecipherable)

Operator: Ok, and he was by himself, there was no-one else in the car with him?

Caller: Yes

Operator: Ok. I'll get a description of him as well just in case he does leave the vehicle. Ok, so is he white Australian?

Caller: Yes

Operator: Ok. And how tall would he be?

Caller: He's 5'6" and a half

Operator: Ok, what colour hair?

Caller: Grey

Operator: And what's he wearing today?

Caller: What's he wearing? A pair of blue jeans and (away from phone) What coloured top was he wearing, Richard?

Male voice in background

Caller: Might have been an olivey greeny colour, but I'm not sure.

Operator: That's fine. Alright, I'll get Police out to see you at [address] . We'll also get Police to keep a lookout for the vehicle in the area. So that will be broadcast out to all the cars in your area, ok

Caller: Thank you

1. Mrs AIU's evidence was that she made this phone call because she was concerned that AIU may have had too much to drink and may come to harm, especially given the way he had driven off. She had made the call againsth the advice of AIU's friend.

1. She said the friend then called AIU who said he would come home.

1. Mrs AIU then rang 000. This call was timed at 7:50pm. The following conversation is recorded:

Operator: Yes. Police emergency, how can I help you?

Caller: Urn, I called about 15 minutes ago, um, expressing concern about my husband who'd gone off in a rush. I've been in contact with him and he's on his way home so I, I think the danger has passed.

Operator: So he's ok do you think, or...?

Caller: Yes (indecipherable)

Operator: What was the address that Police were coming out to?

Caller: [address], so can you tell them please not to come because they, it will only, urn, probably escalate the situation

Operator: That's fine, it was [address]. And what suburb was that?

...

Operator: Yes? And your name?

Caller: [name]

Operator: Alright, [name], I'll advise Police not to come out there, but if anything else happens, [Name], just call us straight back and let us know.

Caller: Thank you

1. Mrs AIU then rang AIU. He was at the front of her bother's home and Police were there. She, with AIU's friend, then left the house and drove to that location.

1. Senior Constable Robertson said that he, with Probationary Constable Simpson, were driving in the area when police radio carried a message about AIU. AIU was said to be possibly intoxicated and had threatened to kill himself. They responded to the call. Probationary Constable Simpson contacted AIU on his mobile telephone and got his location. Mrs AIU had provided that number to the 000 operator. While that conversation was occurring, police radio broadcast a message that AIU was coming home, and that Police attendance was no longer required.

1. Senior Constable Robertson decided that they would continue on and meet with AIU.

1. AIU was parked in the driveway of a house - that of his brother in law. Police pulled up short of the driveway. Senior Constable Robertson spoke with AIU. They discussed the events that had led to him leaving home. Senior Constable Robertson said that AIU became "upset and even angry" when he was asked direct questions. He formed the opinion that AIU was not affected by alcohol. AIU denied threatening to harm himself before he left home, and denied leaving home in a hurry. Then, asked why his wife would say he did, Senior Constable Robertson's said that AIU said, "I do not know, we had an argument."

1. A short time later AIU's wife and friend arrived. Senior Constable Robertson went to speak with Mrs AIU. In his statement Senior Constable Robertson said that his conversation with her was lengthy.

During the conversation I would describe [Mrs AIU] demeanour as volatile. She ranged from co-operative and concerned to hostile and verbally aggressive towards me, often within very short periods."

1. Senior Constable Robertson did not take notes of his conversations on that night. Probationary Constable Simpson took some notes that Senior Constable Robertson had consulted, but Simpson was not always within hearing when the conversations occurred. Indeed, the evidence was that when Senior Constable Robertson was talking to AIU, Probationary Constable Simpson was with Mrs AIU, and vice versa . In refreshing his memory Senior Constable Robertson also had regard to the COPS event of the incident written by Probationary Constable Simpson. In his statement Senior Constable Robertson said that during his conversation with Mrs AIU:

12, To the best of my recollection I asked, "What did [Name] say that would make you think he was going to harm himself?"

[Name] said words similar to, "He said that I would read about it in the morning" or "He said I would read about it in 24 hours".

I asked, "What did you think he meant?"

She said, "I thought he was going to kill himself." I said, "Has he ever tried to take his life before?"

She said words similar to, "About 3 months ago I found him with the power cord to a jug wrapped around his neck and he was going to hang himself."

I said, "What happened to make him leave and say that he was going to kill himself tonight?"

She said, "We had a fight." [Name] would not elaborate on the original cause of the verbal argument and while I was talking to her she disclosed that [Name] threw a scotch glass across the room.

I asked, "Did the scotch glass hit you?" She said, "No".

1. Senior Constable Robertson said that when speaking about the jug cord incident Mrs AIU had made a wrapping motion around her neck. He asked further questions about the glass being thrown, and formed the opinion that a criminal offence may have been committed. Mrs AIU became hostile and said, "You're not going to do anything about this I'm not going to make a statement." He explained that it was incumbent on Police to investigate claims of domestic violence and that he was concerned about AIU's mental health. He then asked whether either of them had a firearm. She asked why, and dismissed his concerns about domestic violence and self-harm. Mrs AIU's view of that conversation was that Senior Constable Robertson was asking her leading questions going to matters that were not of concern.

1. Senior Constable Robertson then spoke to AIU's friend who remained in the car. He said that he had not witnessed an argument between the two of them, nor seen AIU take off in a hurry.

1. Senior Constable Robertson then returned to AIU, whom he described as being calm and cooperative, and asked him a series of questions:

I said, "[AIU] there is an allegation that you threw a scotch glass across the room at [Name]. I have to caution you now. You do not have to say or do anything. Do you understand that?"

He said, "Yes"

I said, "Anything you say or do may be recorded and used as evidence in court. Do you understand that?"

He said, "Yes".

I said, "[Mrs AIU] said that you threw at scotch glass across that room at her. What can you tell me about that?"

He said, "I didn't throw it at her. I threw it across the room."

I said, "Did you try and hit her with the scotch glass?"

He said, "No"

I said, "[Name] also said that you have attempted self harm in the past. Did you attempt to hang yourself with the power cord from a jug a few months ago?"

He said something similar to, "I wasn't really going to hang myself."

1. Senior Constable Robertson then told AIU that he would be seizing his firearm.

1. In evidence Senior Constable Robertson was challenged about whether AIU said he had thrown the glass into the garden or in a room. He could not recall precisely what had been said but added, "I would infer it was inside."

1. Senior Constable Robertson then had a conversation with Mrs AIU in which he told her he would be seizing the firearm and investigating a possible domestic violence incident. She refused to co-operate and told her she would make his life "hell" if he did so. In his view pride was preventing her co-operating. He recalled her saying, "Everyone will know".

1. They all then returned to AIU's home. AIU drove himself. AIU retrieved his .22 rifle and surrendered it to Senior Constable Robertson. They had a conversation that Senior Constable Robertson thought lasted about 10 minutes concerning the seizure of the firearm due to mental health concerns, and the procedure for recovering it. The Police then left.

1. The COPS event was prepared by Probationary Constable Simpson. That document contained a number of factual inaccuracies that it is unnecessary to discuss. It recorded that both AIU and Mrs AIU "suffer from depression."

1. The next day Probationary Constable Simpson made an application for a non-urgent ADVO in which Mrs AIU was named as the protected person and AIU was the defendant. The application recited that it was based on allegations that Mrs AIU told Police that:

• AIU had thrown a glass of scotch at her; and
• AIU "tried to harm himself about three months ago by trying to wrap a power cord around his neck.

1. In his evidence Senior Constable Robertson indicated that he had not considered the domestic violence issue worth pursuing because of Mrs AIU's attitude. He also said he was not sure who was the victim, and who was the perpetrator. He did not issue the ADVO. He could not say positively who had organised it. He was referred to a note in the COPS event that said that both Mr and Mrs AIU suffered from depression. He agreed that, in his discussions on that night, there was mention of Mrs AIU having depression, but no mention of AIU suffering it.

1. After a series of complaints made to Senior Police by Mrs AIU the application for an ADVO was withdrawn and dismissed on 8 December 2010. Mrs AIU maintains that she had also been assured that the Firearms Registry would be notified of this. There is no evidence of this occurring before the initial decision to cancel AIU's firearms licence was made.

1. During the hearing I heard evidence from AIU's friend. He said he had not seen an altercation between Mr and Mrs AIU. He explained that he was inside, in the kitchen, when it occurred. He agreed that he had accompanied Mrs AIU to her brother's home where police were speaking to AIU. He had remained in the car, but did have a conversation with Senior Constable Robertson. When they had all returned to AIU's home, so that the firearm could be seized, he had asked for a receipt.

1. Mrs AIU gave evidence and was cross-examined. As already noted she told the Tribunal that she suffers from she suffers from severe depression, acute anxiety. She has been treated with this for some time. One aspect of her condition is thinking of suicide. She said that her interpretation of day-to-day events is coloured by that thinking, especially when she is stressed.

1. On 1 December 2010 she was extremely stressed and anxious. It had been a difficult day, dealing with the consequences of an attempted suicide in her family, for which a family member considered her responsible. In addition, there had been a torrential thunderstorm that she had thought may flood the house, and had flooded parts of the yard and drive.

1. Against the background of that day she had been anxious and upset when she picked AIU and his friend up from the golf course. She started to tell him about her day, He got angry, whether at the way she had been treated or at the flooding, she was unsure. On their arrival at home she and AIU went outside, with a scotch, while the friend remained inside with a beer. She was upset about being blamed for that the attempted suicide of her family member. She did not believe she was thinking clearly. AIU became annoyed and frustrated at the way she had been treated, and expressed his annoyance at the burden of her family responsibilities, suggesting other members of the family should do more. He became frustrated and threw his drink into the garden. He then went inside, got his bag and left, saying, "You will read about this in 48 hours." He then roared up the driveway in his car. Mrs AIU said that she has interpreted AIU's words as referring to a death notice in a newspaper.

1. Mrs AIU said that she had tried to ring AIU, but could not make the connection. She had then rung 000, against the advice of AIU's friend. She explained that she was concerned he was on the road having had too much to drink. She did not know what he had drunk at the golf club. Her concern, when she rang 000, was not that he would hurt himself, but that he would get hurt. In response to a question as to why she had told the operator that that AIU had threatened to do himself in, she said that was how she took his words. He had not said he would harm himself.

1. Mrs AIU's attention was drawn a letter she had written to Inspector Burton, dated 5 December 2010, complaining about Police conduct. She had written, with respect to her husband's "You will read about this in 48 hours," that, "I took this to mean that intended to harm himself based on a similar threat made some 3 or 4 weeks prior." Her response to this was that she had never heard her husband threaten to harm himself. She did not, however, dispute interpreting things he said as indicating an intention to harm himself. She considered this more a reflection on her own state of mind than of his.

1. Mrs AIU agreed that she had told the operator about an incident with an electrical cord when asked, "Has anything like this happened before?" She strongly disputed ever saying the at the time of this incident he had an electric cord wrapped around his neck. She said that this was another occasion where she and her husband had been arguing. She was very low, and had been thinking about suicide. Following the argument he had gone outside and got an electric jug cord. He told her that he was going to use it. At the time it was wrapped in a circle in his hand.

1. Mrs AIU said that the Police had totally misinterpreted the cause of her concern when she rang them. She had made no allegations of domestic violence against her husband.

1. AIU's evidence with respect to the power cord incident was that, at the time, he was aware that a cord was required at his mother in law's place. That day he and his wife had another argument about the lack of input her brothers put into family care, and the burden cast on Mrs AIU. He had left the house and gone out to the shed, where he retrieved the power cord. He returned to the house and said he was taking it over tho her mother-in-laws. He explained that he hoped that he could speak with his wife's brother. He had told his wife that he was going to do so; he denied that at any time he had the power cord around his neck.

1. AIU also gave evidence with respect to a COPS event recording an incident on 25 November 2007 following AIU's separation from his first wife. The document records a confrontation between AIU and his first wife, whereby he ejected her from his flat. Following this, it recorded that AIU had attended at her home and borrowed a vacuum cleaner. It continued -

POI has then left a letter with his wife apologising for his actions and making reference to having no further problems. The victim has believed this to be a suicide note and contacted Police concerned about the POIs welfare. She contacted him on his mobile and he told (sic) he was a long way away . Police contacted the POI by phone and arranged for him to attend the Police Station to assess his well being."

1. There the entry ends. There is no evidence of any follow up by Police or of their being concerns held by them that he might self-harm.

1. AIU's evidence about this was somewhat hazy, which is unsurprising given the time that has passed. He could not precisely recall whether he had left a note or had a conversation with his ex-wife. His recollection was that he had either written or told her that they were dead to each other. He added that they had not seen each other for the following 12 months. He vaguely recalled presenting at the Police station following a request. He denied threatening or intending self-harm.

1. With respect to the incident on 1 December 2010 AIU agreed that he and his wife had argued in the garden about the lack of input from her siblings. In frustration he had thrown a glass at a step. He had then decided to go and confront her brother, despite her not wishing him to do so. Expecting that he would not be welcome home, he went and put some clothes in a bag. He then left telling her, when asked where he was going, that she would "hear within 48 hours." He agreed that he had put his foot down when driving up their long drive.

1. The Tribunal also heard evidence from Dr O'Loughlin who provided a number of reports with respect to AIU's mental health. He was initially referred to her by his GP, for assessment for the purposes of obtaining his firearms licence back. In her first report, dated 9 February 2011, she found no evidence of AIU having an anxiety or depressive disorder, but did note some enduring symptoms of post traumatic stress from the school incident.

1. Following this report the Firearms Registry wrote to her outlining, with some clarity, the allegations with respect to the jug cord incident. Dr O'Loughlin responded on 18 May 2011, She advised that AIU had completed some self-report assessments. The DASS indicated "the experience of insignificant depressed mood, no reported anxiety and minimum stress", while the Kessler (K10) indicated little psychological distress "as evidence in people likely to be well." Because of her limited contact with AIU, she was unable to state whether or not there was a risk. She referred the Firearms Registry to his GP, who had a longer history with him. She said that her assessment revealed "no significant or other psychological impairment," but that, in good faith, she was unable to give a definitive opinion as to his suitability to hold a firearms licence "given my limited history of him."

1. In evidence Dr O'Loughlin said that since she had written her reports she had ongoing contact with AIU, in supporting his wife in her treatment for depression and anxiety. She described him as "responsible, caring and supportive" in that role. She considered, as a consequence of all her contact with him, that his mental health is not an issue. From her observations of AIU she thought that he functions at a very high level. When asked whether she considered that AIU was virtually no risk should he hold a firearms licence, she was reluctant to give an opinion, regarding it as something that was "impossible to say."

1. When writing her reports Dr O'Louglin did so with the benefit of both the information provided by the Firearms Registry and documents provided by AIU and his wife concerning the alleged events. When asked to assume that each of the three threats of self-harm alleged to be made by AIU were true, she indicated that she was troubled by the hypothetical nature of the question. When pressed on the issue she said that she would reconsider her position.

1. These was also before the Tribunal a very short letter from AIU's GP, dated 13 April 2011, to which was attached a copy of Dr O'Loughlin's first report. In that letter the GP wrote:

I interviewed [AIU] in January this year and found no mental health problem nor any other problem which should effect [AIU's] fitness to hold a firearms licence.

Submissions

1. The Commissioner submits that the material before the Tribunal evidences three episodes that give rise to concerns that there is a risk should AIU continue to hold a firearms licence. These are:

• That allegation that he threatened self-harm in a letter to his ex-wife in November 1997.
• The evidence with respect to the electric cord incident.
• The evidence of the events of 1 December 2010.

1. The Commissioner argued that Dr O'Loughlin's report was unreliable because she had not independently verified the facts, but had accepted what she had been told by AIU. The Commissioner also submitted that she had failed to obtain or consider a report from those who treated AIU, with respect to his PTSD. Without a full and complete psychiatric or psychological assessment the Commissioner submitted that the Tribunal could not be satisfied that there was virtually no risk should AIU continue to hold a firearms licence.

1. AIU on the other hand argued that there was no evidence that he had at any time threatened self-harm. He agreed that his wife had interpreted the events relating to the electric cord and those of 1 December 2010 as threats of self harm, but argued that they were perceptions that resulted from her own mental illness and her admitted focus on suicide. He pointed to the opinions of Dr O'Loughlin and his GP as verifying that he does not suffer from a mental illness.

Consideration

1. Turning first to the events of November 1997 when it is alleged that AIU threatened self-harm in a letter to his ex-wife. The only evidence relating to this is the COPS event created at the time, and AIU's somewhat vague recollection of the circumstances. In my view the COPS event does not contain evidence upon which I could reasonably conclude that AIU threatened self-harm at that time. It merely records that he wrote a letter that his wife interpreted that way. It can be inferred from the COPS event, combined with lack of any further action after AIU presented to the Police station, that Police did not hold concerns for his welfare. AIU denies ever contemplating or threatening self-harm. I am not satisfied that AIU threatened self-harm at this time.

1. Secondly, it is necessary to consider the electric cord incident. The initial evidence concerning this came from Senior Constable Robertson's conversation with Mrs AIU. Senior Constable Robertson is firm in his recollection that Mrs AIU said he had the cord around his neck and that she made a wrapping gesture in the course of their conversation. Senior Constable Robertson did not make any notes of this conversation that could be referred to in order to verify his recollection. His recollection was strongly denied by Mrs AIU.

1. While she agreed that she thought of that incident as one in which her husband threatened self-harm, she denied he had the cord around his neck, or that she made a wrapping gesture to Senior Constable Robertson. She also denied telling Senior Constable Robertson that he did. Her evidence was that he had the cord held in his hand, and that she had interpreted his statement that he was going to use it as a threat of self-harm. She did so in a context where she had just an argument with AIU about an ongoing issue of contention, and was herself suffering from severe depression in which her mind often turns to suicide.

1. AIU's evidence as to how he held the cord is consistent with that of his wife. He says that his statement that he was to going to use it meant that he was taking the cord to his mother in laws, to use there.

1. The weight of the evidence, together with the fact that Senior Constable Robertson has no contemporaneous record of his conversation with AIU and his wife, leads me to conclude that AIU did not have the cord around his neck, but was carrying it in his hand. That being the case, I do not accept that AIU's words and conduct at that time gave rise to a reasonably held concern that he was threatening self-harm. Mrs AIU acknowledged in her evidence that her belief was her interpretation alone, and that her thinking was coloured by her own mental illness and preoccupations. I am not satisfied that AIU threatened self-harm during the electric cord incident.

1. With respect to the incident on 1 December 2010 there was agreement between AIU and his wife as to the nature of their argument, that it had occurred, and that AIU had thrown his glass in the garden. That argument was about similar family issues to those that preceded the electric cord incident. Once again their evidence is at odds with Senior Constable Robertson's recollection of what he was told by both AIU and his wife; i.e. that the argument had taken place in a room. When challenged about this Senior Constable Robertson said it could be inferred that the incident took place in a room. Importantly, AIU's friend's evidence was that he was inside, in the kitchen, when the argument took place.

1. I accept the evidence of AIU as to nature and place of the argument. Once again this causes me to doubt the accuracy of the discussions as recalled by Senior Constable Robertson.

1. AIU and his wife are in agreement that at the end of the argument he went inside the house and grabbed a bag with some clothes and then drove of up the driveway at speed. Where they differ is as to what AIU said before he departed. AIU says he said, "You will hear about this within 48 hours." He says he was going to confront her brother about what he perceived as the undue family burdens cast on her, and did not believe he would be welcome home immediately. She says he said, "You will read about it in 48 hours." She took this as a reference to a death notice in the papers. In her letter to the Inspector Burton she described him as stressed and irrational at the time. In her 000 conversation she said he had threatened to harm himself.

1. On Mrs AIU's evidence of these events it is clear that AIU did not explicitly mention self-harm. Once again her interpretation was that he was doing so, but the words she says he used are capable of conveying a meaning other than that. If, in fact, AIU said that she would "hear about it in 48 hours" there is no basis for her supposition that he intended self-harm.

1. When Senior Constable Robertson first spoke with AIU he described him as becoming "upset and even angry," when asked direct questions about what had occurred, but, after that initial reaction, as being calm and cooperative. Mrs AIU, on the other hand, was volatile. Senior Constable Robertson's impressions of AIU are at odds with what one would expect of a man who was irrational to extent that he was threatening self-harm.

1. My impression of AIU and his wife, when they gave their evidence, concurred with those of Senior Constable Robertson on that night. AIU impressed as giving his evidence in a considered and thoughtful manner, paying close attention to details. Mrs AIU, while also careful, impressed as being somewhat driven by her zeal to address what she perceived as an injustice stemming form her 000 call, yet, at the same time, anxious and upset at having to expose her own mental health issues for discussion.

1. The decisions the Commissioner made with respect to AIU's firearms licence are predicated on acceptance of the fact that he told his wife that she would read about it in 48 hours, and that it was reasonable to infer that he was thereby threatening self-harm. Those word was never put to AIU. He denies them.

1. In the light of all of the evidence I am not satisfied that those were the words he used, rather I accept that he told his wife she would hear about it within 48 hours.

1. His evidence as to the events of that night impresses me as more probable and likely, than that of his wife, who acknowledges that her perceptions were tainted by her own mental illness. I am not satisfied that AIU threatened, either directly or impliedly, to harm himself on the night of 1 December 2010.

1. I also accept Dr McLoughlin's evidence that AIU does not demonstrate any psychological impairment as a result of mental illness. I reject the Commissioner's submission that her report is unreliable because she accepted what she had been told by AIU.

1. In the light of the material the Tribunal is satisfied that there is virtually no risk should AIU continue to hold a firearms licence.

Orders

1. The Tribunal orders that the Commissioner's decision to revoke AIU firearms licence be set aside.

Decision last updated: 08 March 2012