Knight v Commissioner of Police, NSW Police Force
[2011] NSWADT 312
•14 October 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Knight v Commissioner of Police, NSW Police Force [2011] NSWADT 312 Hearing dates: 8 July 2011, 10 August 2011, 14 October 2011 Decision date: 14 October 2011 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed.
Catchwords: Firearms Act - firearms licence - revocation of licence or permit Legislation Cited: Administrative Decisions Tribunal Act 1997
Firearms Act 1996
Firearms Regulation 2006Cases Cited: Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266
Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9
Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657
Director of Public Prosecutions v Smith (1991) 1 VR 63
Ward v Commissioner of Police (2000) NSWADT 28Category: Principal judgment Parties: Horace Robert Knight (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: H Knight (Applicant in person)
Sparke Helmore (Respondent)
File Number(s): 113118
REasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant was the holder of a category ABC firearms licence under the Firearms Act 1996 ("the Act"). In April 2010 the licence was suspended following the laying of charges against him for common assault. That suspension was lifted following the revocation of an interim apprehended violence order in September 2010.
Background to the Application
In late September 2010 the Firearms Registry received a disclosure of information relating to the Applicant under section 79 of the Act. This disclosure was prepared on the basis of concerns held by a psychiatrist, Dr Greg Patterson. Dr Patterson believed that, due to the Applicant's 'current low mood and relationship breakdown', the Applicant may pose a threat if in the possession of a firearm or prohibited weapon.
On receipt of Dr Patterson's disclosure, a delegate of the Commissioner revoked the Applicant's licence in accordance with Clause 19 of the Firearms Regulation 2006 ('the Regulation') on the basis that it was not in the public interest for the Applicant to continue to hold his licence.
The Applicant made an application for Internal Review of the determination to revoke his licence. The revocation was affirmed on internal review. The Applicant subsequently made an application to the Tribunal for external review of the Commissioner's determination. The matter came before me for hearing on 8 July 2011. The matter was then adjourned for further hearing on 10 August 2011 and was finally determined on 14 October 2011. On that occasion I determined to affirm the Commissioner's determination to revoke the Applicant's licence and gave brief reasons for my decision. The Applicant has sought more detailed reasons for that determination and these reasons are provided in response to that request.
The applicable law
Section 24(2) of the Act provides that a licence may be revoked for any other 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 the Regulation. In Commissioner of Police, New South Wales Police Service v Toleafoa 1999] NSWADTAP 9, a case concerning similar provisions under the Security Industry Act , the Appeal Panel said at paragraph [25] that the public interest "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".
In the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 it was stated at 681:
"The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation."
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.
The 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. In Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266 at [21] I noted:
"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."
In Ward v Commissioner of Police (2000) NSWADT 28 the Tribunal said, at paragraphs [27] - [28]
27 One of the objects of the Act, as set out in s 3, is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." In determining whether Mr Ward is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.
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.
Psychiatric evidence
The Firearms Registry requested a report from a registered psychiatrist or psychologist, which would be taken into account in determining the Applicant's internal review application.
Dr Luke Johnson, a consultant psychiatrist, prepared a report in accordance with that request. In this report, dated 16 March 2011, Dr Johnson stated:
"... Robert's insight was partial in that he recognised he suffered from a mood disorder and attributed his symptoms to recent stress levels in his life. He was ambivalent about treatment however, and was only partly aware of the psychosocial impact of his behaviour on his functioning. His judgment was correspondingly impaired and rapport was tenuous. Robert minimised his symptoms throughout the interview and attempted to normalise his significant psychopathology.
With regards to further treatment, Robert is not suitable for holding a firearms licence. He is currently weaning himself off Venlafaxine and clearly has significant breakthrough symptoms including sleep disturbance and emerging anxiety symptoms. He is therefore a high risk of relapse especially in the context of the ongoing difficulties with his relationship with his niece and his ex-partner."
In light of Dr Johnson's report the officer considering the internal review affirmed the decision to revoke the Applicant's firearms licence. That determination was on the basis that the delegate could not be satisfied that the Applicant's continued possession of firearms was virtually without risk.
The Applicant obtained a further report from another consultant psychiatrist, Dr Alex Caracatsanis. In his report dated 2 May 2011, Dr Caracatsanis stated:
"By the end of the interview, given the history I summarised above, and my 'gut feeling' that it lacked some detail, I was nevertheless unable to identify any specific justification on psychiatric grounds, to withhold his Firearms Licence.
When I read the information supplied by the Bland Medical Centre I realised that Mr Knight had a more significant mental history than I had elicited myself. I read that he had 'suicidal ideation' in his teenage years and that he had pointed a gun at his head. I read that he'd experienced 'teariness and low mood' after the breakup of his marriage. I read he was expressing 'grief relating to the death of his son in 2002. I read that he had 'a bad week of suicidal ideation after partner left.' I also read the opinion of Dr L Johnson (psychiatrist) some time before 16 March 2011 and he described Mr Knight's mental state, problem sleeping, his being 'somewhat forgetful', and his self initiated sensation of Venlafaxine (with the emergence of `significant breakthrough symptoms').
Ultimately Dr Johnson did not consider Mr Knight to be suitable to hold a Firearms Licence. Given that my consultation did not reveal any details that would 'overrule' Dr Johnson's evaluation (which was based on more extensive contemporaneous information that was available to me), I've come to the conclusion that there is potentially a risk.
In response to your specific questions:
1I felt that at the time of the interview Mr Knight did have the ability to exercise continuous or responsible control over the firearms;
2However I was concerned that in the future there is a fairly high potential that he will become ill with depression again in which case he could easily lose the ability to form a rational judgment regarding the use of a firearm;
3At the time of the interview, I found nothing in Mr Knight's mental state to suggest that he had potential to put the public safety at risk while in the possession or control of a firearm.
In a subsequent report dated 21 September 2011, Dr Caracatsanis stated that he had seen the Applicant again. In his report Dr Caracatsanis wrote:
"He has returned for a review of his mental state, with a view to regaining his firearms licence.
Since last appointment he has stopped taking Efexor. He says it took him about a month after stopping altogether before he began feeling totally well like his former self. He got a little bit sad on 11 Sept, because that was the 10 anniversary of the birthday of the little boy he ran over - but this soon passed. He managed the shearing in August without problems. Now he is visiting his GP (Dr W Ogendare) and being monitored, and says that is going well. He is seeing financial counsellor regarding his retirement. He is seeing his Psychologist (Ms Di Arthur @ Temora Hospital). He has seen a doctor about a heart irregularity - and is waiting for results. He gets a bit lonely from time to time, but he has also been getting out, socialising with a group run by Ms Christina Lightfoot (from mental health). Also continues Bible studies with his local Presbyterian Church group.
He intends to present his own case to the ADT, in the hope that he will be able to get his firearms licence back.
Dr Caracatsanis concluded:
Conclusion: there is nothing in this interview to indicate any mental disorder or psychological problem. I can find no psychiatrice (sic) reason to prevent him from having a firearms licence."
Dr Caracatsanis attended the hearing on 14 October 2011 by telephone and was cross-examined in relation to his reports. Dr Caracatsanis's evidence was that he considers that, at least for the near future, there is a high risk that the Applicant will again suffer a depressive illness and that he could lose the ability to form a rational judgment regarding the use of a firearm. He placed that risk as 7 on a scale of 1 to 10, where 1 is virtually no risk and 10 is the highest risk. He considered that in that circumstance the Applicant could pose a risk to public safety if he had access to firearms.
Determination
In my view, the concerns raised by the Applicant's psychiatrists are significant. The evidence of both Dr Johnson and Dr Caracatsanis conclude that there is a real risk to public safety should the Applicant possess firearms in the near future. I am particularly influenced by the oral evidence given by Dr Caracatsanis on 14 October 2011.
On the evidence before me, I cannot be satisfied that there is virtually no risk to public safety (which includes the Applicant's safety) if he given access to a firearm. Accordingly, it is my view that the determination to revoke the Applicant's firearms licence is the correct and preferable one. It should therefore be affirmed.
I note however that the Applicant continues to have his health monitored and it is likely that the risk identified by the Applicant's psychiatrists will diminish over time. On the basis of the evidence given by Dr Caracatsanis, if the Applicant continues to get the support that he currently receives and if he continues to be monitored and see his psychologist, it is possible that in about March 2012 Dr Caracatsanis may be in a position to provide a further report as the basis for a fresh firearms licence application.
Determination
The decision under review is affirmed.
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Decision last updated: 31 January 2012
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