Aubrey v Commissioner of Police

[2005] NSWADT 266

CITATION:	Aubrey v Commissioner of Police [2005] NSWADT 266
DIVISION:	General Division
PARTIES:	APPLICANT Davud Aubrey RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	053092
HEARING DATES:	15/07/2005 & 3/08/2005
SUBMISSIONS CLOSED:	08/03/2005
DATE OF DECISION:	11/23/2005
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:
REPRESENTATION:	APPLICANT S Mainstone, Solicitor RESPONDENT W Pisani, Agent
ORDERS:	The decision under review is affirmed

1 Mr Aubrey held a Category AB firearms licence that was revoked on 12 December 2004. The determination to revoke the licence was affirmed on an internal review.

Applicable legislation

2 Mr Aubrey’s licence was issued under the Firearms Act 1996 (“the Act”) which sets up a scheme to license people to possess and use firearms. The principles and objects are set out in section 3 of the Act. They are to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage and use of firearms, and to facilitate a national approach to the control of firearms.

3 Section 24 of the Act makes provision for the revocation of a licence. For example, section 24(2)(b) of the Act provides that a licence may be revoked if the licensee contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or contravenes any condition of the licence, or if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or for any other reason prescribed by the Firearms (General) Regulation 1997 (“the Regulations”). Clause 17 of the Regulations provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.

Background

4 Mr Aubrey is 26 years of age and has held a firearms licence since June 2003. Since that time he has come to the attention of Police on several occasions that Police considered caused concern for public safety. On the first occasion, on 9 December 2003, a sixteen-year-old girl who Mr Aubrey had met through the internet, reported to Police that Mr Aubrey had told her that he was going to shoot himself. Mr Aubrey denied making that threat.

5 In response to the report, the police attended Mr Aubrey’s residence and he was then taken to Campbelltown Hospital for a mental assessment. As a result of the assessment he was admitted to Waratah House and held there for three days until a Psychiatrist examined him. A Psychiatrist, Dr Susan Collingridge, examined Mr Aubrey. Dr Collingridge supplied a report to the Firearms Registry. She observed that Mr Aubrey exhibited no symptoms or signs of any major or minor psychiatric illness or disorder and was not on medication. She concluded that Mr Aubrey was a rational person who has no psychological or psychiatric condition that would impact on his ability to exercise continuous and responsible control over firearms. She further stated her opinion that public safety would not be placed at risk if Mr Aubrey were to regain his firearm’s licence. As a result of Dr Collingridge’s report the suspension of the licence was lifted and Mr Aubrey’s firearms were returned.

6 In September 2004 Mr Aubrey visited another girl he had met through the internet and with whom he had been developing a relationship via the internet and by mobile phone. That girl was fourteen years old when Mr Aubrey went to meet her, however Mr Aubrey stated that he thought she was seventeen years old at that time. Mr Aubrey and the girl provided different versions regarding what occurred but it seems that Mr Aubrey arranged to meet her at her local library. When Mr Aubrey arrived at the library the girl’s sister met with Mr Aubrey to tell him that the girl was only fourteen years old. The girl’s father then approached Mr Aubrey and threatened him with violence.

7 The Commissioner contends that there is reasonable cause to believe that Mr Aubrey met with an under-aged girl and that this gives rise to reasonable cause for concern for the girl’s welfare.

8 Mr Aubrey maintains that the girl had lied about her age and put him in that situation. He also told the police that he was unhappy about the threats made against him by the girl’s father. The police told Mr Aubrey they would record the matter as a caution. Mr Aubrey said he was confused as to why this incident was being recorded as a caution against him when he had not done anything wrong. He says that he told the police that he wished to make a formal complaint by way of a statement so there would be a proper record of what happened however the police refused to meet with him to take a statement. On police advice he made a complaint to the Commissioner about his treatment by the police.

9 The Commissioner also contends that in January 2005 Mr Aubrey contacted Centrelink's Customer Assistance Line and that Mr Aubrey became very aggressive and began making personal threats towards the operator. It is alleged that Mr Aubrey then threatened to attend the Campbelltown office and shoot staff and blow the place up and that he ended the call by stating that he would kill himself and it would be on the operator's conscience. Centrelink staff advised Police that Mr Aubrey had an extensive history of threatening staff by phone. It was alleged that Mr Aubrey become enraged at the slightest thing and is very difficult to deal with, sometimes ringing eight or more times in a day to make various complaints. Following receipt of the advice from Centrelink staff, Police attended Mr Aubrey’s residence but they left when they determined that Mr Aubrey was not in need of care. Mr Aubrey admitted to having spoken to Centrelink by phone but denied the allegation of making threats of any kind.

10 The Commissioner also relies on a confidential affidavit in which a member of the public provided evidence of dealings with Mr Aubrey. That individual stated that they feared for their safety as a consequence of those dealings. On 3 August 2005 a hearing was conducted in the absence of Mr Aubrey and his legal representative so that the deponent of the confidential affidavit could give evidence on behalf of the Commissioner. I note that Mr Aubrey has had no opportunity to challenge that evidence or to respond to it.

11 It is not in dispute that Mr Aubrey has never been convicted of a criminal offence in New South Wales, has never used his firearms in a threatening manner towards any person or in an attempt to harm himself. He says that he has never threatened any police officer or member of the public. Mr Aubrey says that the fact that he became angry about his treatment by the police and expressed his anger to them does not mean that he poses any risk to the public by having a firearms licence.

Evidence and Submissions

12 The Commissioner relies on the material contained in the Police brief, as well as affidavit evidence from Constable David Hearne and Constable Luke Parsons and the confidential affidavit and oral evidence. Both Constable Hearne and Constable Parsons provided oral evidence and were cross-examined.

13 Constable Hearne’s evidence concerns the September 2004 incident in which police were called to a library in relation to a verbal argument occurring between Mr Aubrey and the father of a 14-year-old girl. His evidence is consistent with the version of events presented by the Commissioner. Constable Parsons’ evidence concerns the 9 December 2003 incident in relation to a sixteen-year-old girl’s notification to police that Mr Aubrey had told her that he was going to shoot himself. Constable Parsons’ evidence is consistent with the version of events presented by the Commissioner.

14 The Commissioner contends that Mr Aubrey’s actions in threatening self-harm and the harm of other persons were not those of a responsible person. Whilst it is conceded that Mr Aubrey did not carry out those threats, given their seriousness the public interest dictates that a decision maker err on the side of caution and, in effect, guarantee that Mr Aubrey has no means to carry out his stated intentions by the revocation of his licence.

15 The Commissioner further contends that the public has the right to expect that a firearms licence will only be held in circumstances that cause no risk to public safety. In the circumstances of this matter it cannot be said that there is no risk to public if Mr Aubrey were to hold a firearms licence.

16 Mr Aubrey provided a written statement and oral evidence and was cross-examined. He also provided a statement from his mother, Ms Nellie Ann Aubrey. Ms Aubrey’s statement supports Mr Aubrey’s evidence in relation to the 9 December 2003 incident. Mr Barry Warwick, Range Manager for Silverdale Rifle Range, and Ms Frances Bodkin, a long time family friend, also provided testimonials in support of Mr Aubrey.

17 Mr Aubrey provided evidence in relation to each of the incidents referred to above and denied any wrongdoing. He expressed considerable frustration in relation to his dealing with Centrelink and stated that this had resulted in a complaint to the Ombudsman. An Ombudsman report was produced in relation to the matter and a copy of that report is in evidence. To some extent this report provides an explanation for the frustration that Mr Aubrey felt.

18 Mr Aubrey has denied that he ever threatened to harm himself or others. He says that the 9 December 2003 incident was without any basis and the subsequent psychiatric report confirmed this to be the case. He says that the September 2004 incident was the consequence of a 14-year-old girl lying about her age and the failure of police to treat his complaints seriously. He denied making threats to Centrelink staff.

Findings

19 Mr Aubrey has applied to this Tribunal for a review of the Commissioner's decisions to revoke his firearms licence. The essence of the Commissioner’s case is that it is not in the public interest for Mr Aubrey to continue to hold the licence.

20 Any past and present conduct that may be relevant in deciding whether Mr Aubrey is a person who deserves the privilege of holding a firearms licence must be reviewed. Any propensity towards offending against the law must be regarded as of crucial importance. I have considered all the material presented by the parties, including the confidential evidence on which the Commissioner relies, and I have taken account of the competing considerations.

21 The objects and principles of the Act state that 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 Aubrey retains the licence.

22 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 to public safety if Mr Aubrey were given access to a firearm. The Commissioner argues that the Tribunal could not be satisfied that Mr Aubrey does not present a danger to public safety and, accordingly, it is not in the public interest for him to continue to hold a firearms licence. I agree with that view.

23 In my view, Mr Aubrey has exhibited a course of conduct that rightly gives the Commissioner cause for concern. I note that Mr Aubrey has denied that there is any substance to the Commissioner’s allegations in relation to either the 9 December 2003 incident or the September 2004 incident, and of themselves these incidents may well be of little concern. However, the Centrelink issue suggests that Mr Aubrey has great difficulty in dealing with frustration. Mr Aubrey was not privy to the confidential evidence on which the Commissioner relies. However, this evidence clearly highlights the lack of control that Mr Aubrey has demonstrated when confronted with a frustrating circumstance.

24 In light of the evidence I am of the view that there would be risk to the public if Mr Aubrey were in possession of a firearm at a time when he was confronted with an equally frustrating circumstance. It follows in my view that the correct and preferable decision is to revoke his firearms licence. Accordingly I affirm the Commissioner's decision.

25 I note however that I have formed this view on the evidence before me. It is possible that Mr Aubrey could obtain a psychiatric or psychological report giving clear evidence of his psychological stability and could satisfy the Commissioner that he poses virtually no risk to public safety. If that is the case and if Mr Aubrey were to reapply for firearms licences, the Commissioner may well reach a different conclusion.

Order

The decision under review is affirmed.