Katsaros v Commissioner of Police NSW Police Force

[2013] NSWADT 278

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Katsaros v Commissioner of Police NSW Police Force [2013] NSWADT 278
Hearing dates:	17 October 2013Submissions closed 1 November 2013
Decision date:	04 December 2013
Jurisdiction:	General Division
Before:	Judicial Member Naida Isenberg
Decision:	The decision under review is set aside
Catchwords:	Firearms licence revocation - fit and proper person - attempted suicide - threat of suicide
Legislation Cited:	Firearms Act 1996 Administrative Decision Tribunal Act 1997 Crimes (Sentencing and Procedure) Act 1999
Cases Cited:	Shi v Migration Agents Registration Authority [2008] HCA 31 Wiltshire v Commissioner of Police, New South Wales Police HYPERLINK " \o "View Case"[2005] NSWADT 75
Category:	Principal judgment
Parties:	Jassenn Katraros (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	J Katsaros (Applicant in person) Bartier Perry (Respondent)
File Number(s):	133107

reasons for decision

Background

1. The Respondent has decided to revoke the firearms licence of the Applicant, Jassenn Katsaros, on the basis that there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of a previous attempt to commit suicide or cause self-inflicted injury: see s.24(2)(a) and s.11(4)(b) of the Firearms Act 1996 ("the Act"); and it is not in the public interest for the Applicant to continue to hold a firearms licence: see s.24(2)(d) of the Act and cl. 19 of the Firearms Regulation 2006.

1. The Applicant sought internal review of the decision to revoke his firearm's licence, but the decision was affirmed. He has applied for review of the Respondent's decision.

Relevant Legislation

1. The general principles of the Act are set out in section 3:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

(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, and

(c) to facilitate a national approach to the control of firearms.

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

1. Section 24 (2) provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.

1. The Act, in setting out restrictions on the issue of licences, provides, relevantly:

...

(4) ... 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:

...

(b) any previous attempt by the Applicant to commit suicide or cause a self-inflicted injury,

...

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

...

1. Section 63 of the Administrative Decision Tribunal Act 1997('the ADT Act') provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

Consideration

1. In the internal review decision the Respondent noted that it had no issue with the Applicant's character and there was no indication that the Applicant had previously breached firearms legislation. The revocation was due to the incident when police responded to a report he had attempted suicide by hanging himself in the garage of his home. The Police understood that his depression had recently worsened due to marital issues which subsequently impacted on your relationship with your children. There is no information that those issues have all resolved and will not re-emerge. As the attempt to hang himself was thought to have failed only through the intervention of others, it was considered possible that should he make a second attempt, he may resort to other mean, and possibly by using a firearm. As concerns for his mental health had not been eliminated, the delegate was not satisfied that the Applicant currently had the capacity to personally exercise continuous and responsible control over firearms.

1. The Respondent provided a bundle of documents under s. 58 of the ADT Act and summons material which included:

• The Applicant's medical record from Liverpool Hospital;
• The Applicant's medical records from Eastbrooke Medical Centre;
• medical records provided by Ms Sue Stern, psychologist in relation to the Applicant ; and
• Ambulance Service of NSW Incident Report in relation to the Applicant

1. The precipitating event which gave rise to the revocation was that on 18 November 2012 police attended the Applicant's premises in response to a radio call that a person was trying to hang himself.

1. The Ambulance Service of NSW Agency Incident Report records:

Behaviour I Suicide Attempt. Caller Statement: TRIED TO HANG HIMSELF. 1. He is not violent. 2. He does not have a weapon. 3. The patient is inside the same structure. 4. He attempted suicide by hanging.

...Near hanging, strangulation, or suffocation (alert). Psychiatric Abnormal.

1. The Respondent submitted that there was no evidence to suggest that the report was not genuine or that the caller did not genuinely believe there was need to seek assistance from the Ambulance Service, on the basis that people will call for assistance because they genuinely believe a person is injured or at risk.

1. A COPS report of the police attendance records that:

...police attended the... address in response to a radio message of a male trying to hang himself. Upon arrival police were met by the NOK [Next of Kin] and a number of other family members stating that [the Applicant] had been brought down and was now in a calm state.

...When questioned about the attempted self-harm [the Applicant] denied all allegations and stated nothing had happened.

Police have then spoken to the NOK who said that at the above time and date she had sent [the Applicant] a text message to find out where in the house he was... [he] replied shortly after "You will find me in the garage"... Upon entering the garage the NOK and a number of other family members observed the [the Applicant] hanging from a large roof support beam with a noose made of a thick rope around his neck. At this time [the Applicant] was completely suspended from the ground and unable to breath. Family have then rushed over and pulled [the Applicant] down...

1. Following this, the Applicant was transported by ambulance to Liverpool Hospital for assessment. A report completed by medical staff on 19 November 2012 records the following in relation to the Applicant:

Risks: medium risk for Suicidality/Self-Harm

High risk of absconding.

1. In the same report he was found to be pleasant and polite on approach, was co-operative and compliant.

1. The Applicant gave evidence about the events of that evening. He said that he and his wife and children had been at his mother-in-law's for a family lunch or dinner. His wife had made a disclosure of a personal nature to the wider family. The Applicant said he was embarrassed and went home - only a few doors away. He later said he went into the garage to work on his bike to relax. His wife sent him a text message asking where he was and he replied that he was in the garage. She went there and they argued. He conceded that he threatened to kill himself, saying words to the effect, about the personal disclosure: 'this is embarrassing' and 'I don't want to be around this'. He did not specify how he might kill himself. He had never thought about suicide and had only said it to scare her. He said it was a childish thing to do and he had wanted to see if they could put what had occurred behind them and repair their relationship. Because he was the product of a broken home himself, he did not want his children to have that occur if it could be avoided. He also did not want them to be exposed to his wife's proposed new domestic arrangements.

1. About 15 minutes after they argued his mother-in-law arrived to see what was happening. She and his wife left and went back to his mother-in-law's home to collect the children. The Applicant then watched some TV and fell asleep on the lounge and was awoken, about 3-4 hours later, by the flashing lights of the ambulance and people - ambulance officers and police - standing over him. He denied that he had just fallen asleep when the ambulance and police arrived. He said he asked them what was happening.

1. The ambulance records do not note the name of the informant and the Applicant believes his mother-in-law phoned. He said that her own husband had suicided and she did not therefore take threats lightly. He said his mother-in-law said she was only looking out for his well-being. He thought she had over-reacted. The Respondent was critical of the Applicant for not calling his mother-in-law to give evidence. I do not accept that this criticism is well-placed. An unrepresented Applicant cannot be expected to understand the niceties of Jones v Dunkel [1959] HCA 8. Further, it was open to the Respondent to call her. In addition, as the police report referred to 'a number of other family members' having 'observed the Applicant hanging from a large roof support beam with a noose made of thick rope around his neck', that he was 'completely suspended from the ground and unable to breath', that the 'family rushed over and pulled [him] down'. None of these witnesses were called by the Respondent either.

1. The Applicant invited my attention to the remarks of the ambulance officers that he was not in any distress and that the hospital records show he had no ligature marks. He had denied then, as he does now, that he attempted suicide by hanging.

1. I observe that there was no notation in the police records of interviews with the mother-in-law or those who were alleged to have brought him down. Further, there was nothing in the police papers of having located a rope or other means by which he was alleged to have been hanging.

1. The Applicant said he was required to remain in hospital overnight. He referred to the note at 1200 on 19 November 2012 that when the registrar met with his wife she reported 'no concerns re risk to self'. (It is unclear if this relates to her husband or herself.) She agreed that they needed relationship counselling.

1. In support of the Applicant's internal review application his wife wrote that her husband is in no way a harm to her, their family, or himself. She agreed he had threatened harm to himself on 18 November 2012 but that it:

...was an act of frustration to get my attention, but he has never behaved in that manor (sic) before, and it was just a threat. He was not hanging as stated by the police.

1. This contrasts with what she told medical staff upon the Applicant's admission to Liverpool Hospital, where a medical officer has noted that:

Wife: Insists she found her estranged hb rca(sic) rope around his neck.

1. The Respondent also relied on a triage note completed upon the Applicant's attendance at the Emergency Department of Liverpool Hospital. The comment made by the ED staff is that:

...Attempted hanging has hx of depression. States threaten to kill himself but wife said he was hanging. Family very uncooperative.

1. A mental health assessment undertaken at the time of the Applicant's admission to hospital notes the following history:

Reports marriage problems for > 6 months, also I-Ix depression...got upset about something his wife had said, went to garage of his house and rang his wife; when wife arrived he was allegedly half hanging off a rope and she could hear choking sounds; somehow Jason came off the rope 4 police, ambulance 4 ED

Jason reports marriage problems and minimises the seriousness of his behaviour, actually denies hanging attempt altogether...

1. The Respondent noted that the Applicant's wife had not given a statement in these proceedings actually retracting her comments to Liverpool Hospital and was critical of the Applicant for not calling her to give evidence. Again, I do not think any adverse conclusion should be drawn from the absence of the Applicant's wife in giving evidence, for the reasons I expressed in relation to the Applicant's mother-in-law. Further, her statement in support of the internal review application was in fairly unequivocal terms, in the light of which I would not have expected that she needed to expressly address her reported comments to the hospital. I note too, that at the time the Applicant and his wife were not 'estranged', neither was there any evidence of ligature marks, so some doubt may be cast upon the veracity of the report in any event.

1. The Respondent submitted that the Applicant was endeavouring to minimize the seriousness of what he had done, and that I should reject his denial of an attempted suicide and his claim that he only made a threat. The Respondent referred to the mental health assessment wherein he was recorded as minimising the seriousness of his behaviour. In support of this contention the Respondent also referred to Ms Stern's report of 11 July 2013 wherein she reported that the Applicant is covering his emotional hurt with 'acts of bravado'. It was noted that there had been no previous mention of the mother-in-law's husband's suicide as a reason for the mother-in-law taking the threat seriously. There was some discrepancy in the Applicant's account as to whether there was a family 'dinner', given that he claimed to have left, had the altercation with his wife, made the threat of, or attempted suicide, watched TV and slept for 3-4 hours before the arrival of the ambulance at about 8.50pm. He said they often have late lunch which is also their dinner. He denied that it was possible that he had just dozed off after being brought down from the rafter and before the ambulance arrived. In the absence of any evidence of his having been physically affected by the alleged hanging, I consider it unlikely that in the period between which he was allegedly released by multiple members of his extended family and the arrival of the ambulance officers he would have merely dozed off.

1. The Respondent submitted that the Applicant's recollection of the incident is hazy and unclear. I do not agree. He denied to the attending police and ambulance officers and at the hospital that he had attempted suicide and he was reported to be calm and, as far as I could tell, there was no objective evidence of a suicide attempt. The Respondent submitted that the police and ambulance officers had not accepted his denial and had transported him to hospital in any event. There was no evidence of police and ambulance protocols in such circumstances.

Applicant's history of depression and present condition

1. The Respondent relied on the medical records that the Applicant had a history of depression since 2005. From at least 2004 he had also been diagnosed with anxiety. In particular there is a record that he was treated by Dr Avi Joshi with cognitive behaviour therapy for management of anxiety and panic attacks in December 2004, and had consultations for depression in February 2005, September 2008, May 2009, December 2009 and July - November 2011.

1. The Applicant agreed he had had a history of 'panic attacks' for no reason, which caused his heart to race and made him 'uncomfortable'. He saw Dr Joshi who prescribed Cipramil. He tried to wean him off it but the weaning process made him feel ill so he has continued on a low dose. He has tried other medication over the years without success. He said he was under the impression he was being treated for anxiety, but understands now from Ms Stern that anxiety and depression are 'inter-linked'. He was unhappy with Dr Joshi and went to his current GP, Dr Singh.

1. He said that he has not had a panic attack for years. He now has a steady life, without depression or anxiety.

1. The Applicant said he was referred by Dr Singh to psychologist, Sue Stern in about 2011. He underwent the 'neurofeedback' program which is a form of relaxation.

1. He said that in about January or February 2012 he first found out about his wife's conduct and tried to deal with it himself. Soon he sought assistance from Ms Stern. He saw her for about 12 sessions and then he and his wife went for several sessions together.

1. In August 2012, at Ms Stern's suggestion, he went to a clinic as an in-patient. He said she saw that he was heart-broken and suggested a period at the hospital would improve his self-esteem. He said it was like 'a holiday camp'.

1. He was referred in cross-examination to an undated note by Ms Stern that:

He tells [his wife] that he doesn't want to live anymore

1. The Applicant said that what he had said was that he 'doesn't want to live like this anymore'.

1. In December 2012 his wife finally acknowledged that her preference was not to be with her husband and that the situation was not going to alter. Since that time the Applicant said he has been more accepting and they have been living in the same house and co-operatively working together for the sake of their children.

1. Ms Stern, in her most recent report, dated 11 July 2013 wrote that while the Applicant continues to improve and that he was coming to terms with the end of his marriage, 'he still has a long way to go'. The Applicant said he had approached Ms Stern for another report, and at first she was 'keen' to do one but then changed her mind. Later the Applicant noted the cost of having her provide a report as a reason for not obtaining it.

1. The Respondent was critical of the Applicant not providing a more recent report from Ms Stern specifically 'certifying him fit to hold a firearms licence'. This submission, it seems to me, is misconceived; there is no legislative or other requirement for a psychologist or medical practitioner to 'certify' an Applicant as fit to hold a firearms licence.

1. The absence of a further report from Ms Stern, is not, in my view, determinative of the issue before me.

1. The Respondent submitted that I should err on the side of caution, especially as the Applicant's treatment is not concluded, nor may he ever be free from depression.

1. I am not reasonably satisfied that the Applicant attempted to commit suicide. The Applicant presented as a credible witness, and his denial of an attempt, as distinct from a threat, has been consistent. There were significant gaps in the evidence which I have discussed above in relation to an actual attempt, which, if available, may have altered my view. I have also taken into account the medical evidence and my view is not altered by that either.

1. I therefore find that there was no attempted suicide, only a threat. Having come to that view, s.11(4)(b) of the Firearms Act does not apply.

Public interest

1. It remains to consider the public interest.

1. The Respondent submitted that even if i were to find that there was only a threat of suicide, the threat was serious and it remains that it is not in the public interest for the Applicant to continue to hold a firearms licence: see s. 24(2)(d) of the Act and cl.19 of the Firearms Regulation 2006.

1. I acknowledge that a firearms licence is a privilege and not a right. Responsibilities of licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police[2005] NSWADT 75 at [25].

1. The underlying principles of the Act stated in s.3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at [28], DP Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would not pose any risk to public safety.

1. In Commissioner of Police v Toleafoa[1999] NSWADTAP 9, the Appeal Panel said at [25], in the context of the licensing regime for the security industry, that the public interest is:

... an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

1. Following the approach of JM Frost in AMJ v Commissioner of Police NSW Police Force [2012] NSWADT 228 I consider there to be several factors that weigh in the Applicant's favour.

1. Firstly, notwithstanding the Applicant's history of depression, there was no evidence that before the events giving rise to the Respondent's revocation he had previously attempted or even threatened suicide. Nor was there any evidence that since the issue of his firearms licence he has in any way misused his firearms.

1. Also, notwithstanding that he knew of his wife's activities in early 2012, it was not until November 2012, when she revealed her situation to the family at large, that the Applicant, humiliated and embarrassed, threatened to take his own life. From early 2012 until November 2012 he did not in any way misuse his firearms although he had uninterrupted access to them. That is significant because that was the time during which the Applicant himself, and the general public, would have been at most risk as a result of the Applicant's possession of firearms. Instead he sought counselling. Ms Stern's assessment of the Applicant's mental state in July this year was reasonably positive; she is happy with his progress.

1. I have found that, contrary to the Respondent's submission, in November 2012 the Applicant did not attempt to take his own life; he only threatened to do so. I have also accepted that it was an idle threat to 'scare' his wife and that he had no intention of acting upon that threat.

1. Even though he did not specify in his threat how he might take his own life, there was no evidence that proposed to use his firearms, notwithstanding that they are stored in the garage, the place where he goes to relax and where the altercation with his wife took place and where he was located by police and ambulance officers. It is likely that the coping strategies the Applicant has learnt during his therapy sessions better equip him to deal with his present family circumstances.

1. In all the circumstances, I am reasonably satisfied, based on public interest grounds, that there is no reason for the Applicant not to continue to hold a firearms licence.

DECISION

The decision under review is set aside.

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