AML v Commissioner of Police, New South Wales Police Force

[2013] NSWADT 5

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5
Hearing dates:	18 December 2012
Decision date:	10 January 2013
Jurisdiction:	General Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	The Commissioner's decision to revoke the applicant's firearms licence is set aside.
Catchwords:	MERITS REVIEW - revocation of firearms licence because of previous suicide attempt - meaning of "reasonable cause to believe"
Legislation Cited:	Firearms Act 1996 Administrative Decisions Tribunal Act 1997 Firearms Regulation 2006
Cases Cited:	Ward v Commissioner of Police [2000] NSWADT 28 Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 State of New South Wales v Taylor [2001] HCA 15
Category:	Principal judgment
Parties:	AML (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	AML (Applicant in person) Bartier Perry (Respondent)
File Number(s):	123230
Publication restriction:	S75 of the Administrative Decisions Tribunal Act applies in respect of the applicant name

REASONS FOR DECISION

Introduction

1. The Commissioner of Police revoked AML's firearms licence after he attempted suicide by overdosing on pills. Despite medical reports supporting the reinstatement of his licence, the Commissioner says that it is too soon for the Tribunal to be satisfied that AML poses 'virtually no risk' to himself. The test is whether there is reasonable cause to believe that AML may not personally exercise continuous and responsible control over firearms because of the previous suicide attempt. In my view the suicide attempt does not give rise to such a belief, nor is it in the public interest to revoke AML's licence.

Background

1. AML is a 50 year old man who has been diagnosed with depression since at least 1997. He held a Category AB firearms licence which entitled him to engage in sport/target shooting and recreational hunting. He has owned rifles for over 35 years and currently has 6 firearms, all of which have been confiscated pending the Tribunal's decision.

1. AML has been married for 27 years and has held senior managerial positions in the private sector. He has been made redundant three times, the most recent of which was in early March 2012. On 27 March 2012, immediately following an argument with his wife, AML drove into the forest and took 100 tablets around midnight. He went to sleep, woke in the morning and drove home. He said that after realising that his suicide attempt had been unsuccessful he had an 'epiphany.' He realised that he loved his wife and that he wanted to grow old with her. He did not want to die. After feeling the side effects of the overdose, AML contacted his wife, who is a registered nurse, and she drove him to hospital.

1. A psychiatrist, Dr Kealy Bateman, and a psychologist, Mr Tyrer, were treating AML prior to the suicide attempt and have continued to treat him since then. Both provided reports expressing their opinion that AML's licence should not be revoked.

Legal principles

1. The Commissioner relies on two alternative bases for revoking the licence. The first is that there is "reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of any previous attempt by the applicant to commit suicide or cause a self-inflicted injury": Firearms Act 1996, s 24(2)(a) and s 11(4)(b). I will refer to this ground as the "reasonable cause" ground. The second basis is more general - that it is not in the public interest for the licensee to continue to hold the licence: Firearms Act 1996, s 24(2)(d) and Firearms Regulation 2006, Cl 19. I will refer to this ground as the "public interest" ground.

1. Both these grounds accord with one of the principles of the Firearms Act which is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." When reviewing the Commissioner's decision to revoke the licence, the Tribunal is to decide what the correct or preferable decision is having regard to the facts and the law: Administrative Decisions Tribunal Act 1997, s 63.

1. The Commissioner submitted that there must be "virtually no risk" before the Tribunal could be satisfied that AML should retain his firearms licence. That phrase comes from a decision I made in 2000 - Ward v Commissioner of Police [2000] NSWADT 28. I set aside the Commissioner's decision to revoke Mr Ward's firearms licence because I was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence:

28 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 "virtually no risk" comment was made in the context of the "fit and proper person" test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests.

1. In the internal review decision, the Commissioner referred to a comment the Tribunal made in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218. In that case the Tribunal affirmed the Commissioner's decision to revoke Mr Hill's firearms licence in circumstances where his 15 year old son had accidentally shot his friend in the leg while they were hunting for wild pigs. The Commissioner justified the revocation on the ground of public interest. The Tribunal said at [28]:

It is of course impossible to say with absolute certainty how any individual will behave in the future. The Commissioner is properly concerned that Mr Hill's serious lack of judgment and failure to properly supervise his firearms may be repeated. As I understand Mr Tunks to argue, notwithstanding the applicant's good character given the seriousness of the incident the public interest dictates that a decision maker err on the side of caution and, in effect, guarantee, by the revocation of the licence, that a similar incident will not be repeated.

1. In the final sentence, the Tribunal was reciting Mr Tunks' submission, with approval. The Tribunal was not re-writing the public interest test. Words such as "dictates" and "guarantee" suggest that revocation is mandatory in such cases. That is not correct. When applying the fit and proper person test, the public interest test and the reasonable cause test, the decision maker is exercising a judgement based on all the evidence.

Evidence

1. Apart from the question of whether AML had previously threatened suicide, the material facts are not in dispute. I will deal firstly with the evidence of a previous threatened suicide and then with three of the Commissioner's submissions as to how particular evidence should be interpreted.

1. The Commissioner highlighted a note made by a nurse recording something that AML's wife had told her when AML was in hospital. The note says that, "he has threatened suicide before Christmas and she told him she would get rid of the guns. He said he wouldn't use guns but wouldn't tell her how." AML denies ever previously threatening suicide. The only comment he can recall making to his wife was that she would be better off without him. AML queried whether the nurse had accurately recorded what his wife had said. Neither the nurse nor AML's wife gave evidence.

1. In view of the second hand nature of the nurse's record and the denial of any such threat, I am not satisfied that AML expressly threatened suicide before Christmas in 2011. It follows that I do not accept the Commissioner's submission that the opinion of the psychologist and the psychiatrist that AML was making good progress during that period, should be qualified.

1. The first of the three submissions the Commissioner made as to the significance of particular evidence was that AML had been "on and off medication" previously and that that was a risk factor. AML clarified that he had been on an anti-depressant, Zoloft, for 10 years and at various times he decreased his dosage in an attempt to determine whether he could function without it. He found that he could not. He is now on Efexor and, under Dr Kealy Bateman's supervision, he has increased the dose. He has only ever taken two kinds of anti-depressant medication. AML is compliant with Dr Kealy Bateman's prescriptions and accepts that he will be on medication for the foreseeable future. In those circumstances I place no significance on the fact that he has tried to come off medication more than once before.

1. Secondly, the Commissioner said that AML had missed an appointment with his psychiatrist. AML explained that he had not received the message about that appointment and that, in general, he has regularly and reliably attended medical appointments. I accept that evidence.

1. Thirdly, I reject the Commissioner's submission that any adverse inference can be drawn from AML saying to a nurse at the hospital that, "I failed in that too." (i.e. suicide) I accept that this was just a flippant remark to hide his embarrassment.

1. AML has been a patient of Dr Kealy Bateman since October 2011 and has seen him six times altogether. He has diagnosed AML as having a Major Depressive Disorder with a Major Depressive Episode in remission. Dr Kealy Bateman prescribed anti-depressant medication and has since increased the dose. In two reports written in the last four months, Dr Kealy Bateman expressed the opinion that "there is no current risk" that AML's condition or impairment may impact on his ability to exercise continuous or responsible control over firearms. He bases that opinion on several factors including that AML:

(1)   has never used firearms irresponsibly;

(2)   is an attentive patient who has followed his advice; and

(3)   has significantly improved since leaving hospital and now has a better understanding of his role change since being made redundant.

1. Mr Tyrer, a psychologist, has been seeing AML regularly since September 2011. He provided three reports dated 8 May 2012, 26 July 2012 and 3 December 2012. In the May report, Mr Tyrer said that the attempted suicide was a "one off" and there was no pattern of self destructive behaviour. In his opinion, AML would continue to use firearms responsibly. That opinion was based on several factors including that AML:

(1)   has no previous history of attempting self harm;

(2)   has not had any issues in relation to the use of firearms in the past;

(3)   is managing normal stressors in an appropriate, healthy manner; and

(4)   is making rational decisions regarding relationships, work responsibilities and general health.

1. In the July report Mr Tyrer expressed the view that AML's firearms licence should be restored because he has been a regular and dedicated participant in his recovery treatment and there has never been any suggestion that he would use firearms to self-harm.

1. AML's wife, a registered nurse, also unreservedly supports the reinstatement of her husband's licence.

Consideration

1. When applying the reasonable cause test, the decision maker must ask whether the applicant's previous attempt gives rise to a reasonable cause to believe that he or she may not personally exercise continuous and responsible control over firearms. The test, in context, is an objective one: State of New South Wales v Taylor [2001] HCA 15 at [10], Gleeson CJ, McHugh and Hayne JJ.

1. Not every suicide attempt will justify the revocation of the person's firearms licence. The Tribunal must assess the likelihood that AML will attempt suicide or self-harm again and, if that happens, the likelihood that a firearm will be used. There is no suggestion that AML would attempt to harm others. The reason AML has a firearm's licence or the enjoyment he gets from possessing or using firearms is irrelevant.

1. I accept the opinion of both the psychologist and the psychiatrist that AML is highly unlikely to attempt suicide again. That opinion is based on several matters including the significant improvement in AML's mental health immediately following the suicide attempt and the continuing improvement in the 8 months since that time. I do not accept the Commissioner's submission that before the reasonable cause test or the public interest test can be satisfied, an applicant must complete a course of treatment and enjoy a lengthy period of stability following that treatment. While both effective treatment and a lengthy period of stability are relevant, they are not mandatory.

1. I also accept that it is highly unlikely that, if AML did attempt suicide or self-harm, he would use a firearm. AML has an unblemished history in relation to the possession and use of firearms and he did not contemplate using a firearm to suicide previously.

1. The Commissioner has not pointed to any additional matters that would justify the licence being revoked in the public interest and I am not independently aware of any such matters.

Order

The Commissioner's decision to revoke the applicant's firearms licence is set aside.

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Decision last updated: 10 January 2013