Leviny v Commissioner of Police, NSW Police Force (GD)

[2013] NSWADTAP 34

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Leviny v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 34
Hearing dates:	24 June 2013
Decision date:	23 July 2013
Jurisdiction:	Appeal Panel - Internal
Before:	Judge K P O'Connor, President S Higgins, Deputy President J McClelland, Non-judicial Member
Decision:	Appeal dismissed
Catchwords:	FIREARMS LICENCE - Revocation affirmed by Tribunal - Appeal - Reliance by administrator at internal review on additional ground for revocation - permissible; statement by Tribunal as to possible future action - not unfair; failure to refer to review applicant's written submissions - not unfair - Appeal dismissed
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Leviny v Commissioner of Police, NSW Police Force [2013] NSWADT 62
Category:	Principal judgment
Parties:	Geoffrey Leviny (Appellant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	In person (Appellant) J Mattson, Bartier Perry (Respondent)
File Number(s):	139015
Decision under appeal	Citation: Leviny v Commissioner of Police, NSW Police Force [2013] NSWADT 62 Date of Decision: 2013-03-20 00:00:00 Before: General Division File Number(s): 123217

reasons for decision

1. Mr Leviny held until 8 June 2012 a licence issued under the Firearms Act 1996 (the Firearms Act), allowing him to use category A/B firearms. It was suspended on that date, and revoked on 18 June 2012. The Commissioner of Police is the administrator of the Firearms Act. Mr Leviny applied for internal review of the decision, and was unsuccessful. He applied to the Tribunal for external review. The Tribunal has affirmed the decision. He now appeals.

Background

1. An incident occurred on the afternoon of 7 June 2012. On the morning of 8 June, his wife contacted the family doctor, Dr Hume, expressing concern over her husband's conduct. Dr Hume immediately contacted local police. They attended the Leviny home around 10 pm that evening.

1. The local police recorded the doctor as having told them that Mrs Leviny had told him that the night before Mr Leviny had threatened to kill himself and held a loaded rifle to his chin. According to the doctor, she told the doctor that she had, without his knowledge, hidden his weapons (an air rifle and a rimfire rifle). She had informed the doctor of where she had put them. She wanted them removed as soon as possible, and to have the police call while they were out of the house during the afternoon. As noted above, the police did not attend the house until 10 pm, by which time both Mr and Mrs Leviny were at home.

1. The police spoke to both of them. They located the weapons and formally seized them. They suspended Mr Leviny's licence. As noted, this was followed on 18 June by the letter of revocation.

1. Section 24(2) permits the Commissioner to revoke a licence: '(a) for any reason for which the licensee would be required to be refused a licence of the same kind' or '(d) for any other reason prescribed by the regulations'.

1. Section 11(4)(b) gives as a reason for refusal of an application:

(4) Without limiting the generality of subsection (3) (a), 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.

1. Clause 19 of the Firearms Regulation 2006 provides that:

The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

1. The reasons attached to the Commissioner's notice of revocation dated 18 June 2012 referred to the police report, and relied on both of the above grounds.

1. Mr Leviny applied for internal review.

1. The internal review decision affirmed the decision, and relied on a further ground, failure to store safely the firearms. The reasons referred to the fact that after taking the rifles out of a locked cabinet at about 4.00 pm on 7 June to shoot a hare, Mr Leviny did not return them to the safe storage but placed them out of sight in a cupboard. His wife, who the reasons noted was a person not authorised to possess or use a firearm, had then proceeded to hide the rifles under the bed. (She had expected that the police would come while they were out, and remove them.) The reasons asserted that Mr Leviny, in allowing this situation to arise, had neglected his duty of safe storage.

1. Section 39 of the Firearms Act requires that firearms must be stored safely. One of the obligations is that firearms are stored in a manner that ensures that they do not 'come into the possession of a person who is not authorised to possess firearms' (s 39(1)(c)). Section 40 deals with the storage requirements relating to Category A/B firearms. Section 40(1)(a) provides that 'when any such firearm is not actually being used or carried, it must be stored in a locked receptacle'.

1. The appellant applied for external review by the Tribunal. The Tribunal affirmed the decision (see Leviny v Commissioner of Police, NSW Police Force [2013] NSWADT 62).

1. The material before the Tribunal included statements from: the family doctor contacted by Mrs Leviny, Dr Hope, 25 October 2012; an attending police officer, S/C Jeffcoat, 24 September 2012; the other attending police officer, S/C Adam Robinson, 27 October 2012; a letter from a psychiatrist, Dr S Huntsman, reporting to Dr Hope on a consultation with Mr Leviny, 7 September 2012; a letter from Mrs Leviny dated 24 June 2012, in which she gives an account of the events of 7 June that differs in a critical respect from the account given by Dr Hope of what she said to him, and the account given by S/C Jeffcoat of what she said to him in a private conversation on the night of 8 June. Mrs Leviny's later statement denies that Mr Leviny held a rifle to his chin or that he had the rifle in his possession at the time of the remarks.

1. In the ultimate the Tribunal decided the case entirely by reference to the failure in relation to storage. It did not make any findings as to what precisely occurred on the evening of 7 June, and did not express a concluded view as to whether the Commissioner's reliance on the s 11(4)(b) ground was justified.

1. The Tribunal simply regarded the unsafe storage case as established and sufficient to justify revocation in the public interest.

The Appeal

1. Mr Leviny now appeals to the Appeal Panel. An appeal may be made on a question of law, and may, by leave, be extended to the merits: Administrative Decisions Tribunal Act 1997, ss 112-113.

1. The notice of appeal filled out by Mr Leviny referred only to 'questions of law'. He did not expressly seek an extension to the merits.

1. Mr Leviny disputes the version of events on which the Commissioner acted. He depicts his behaviour as more in the nature of an expression of frustration and his actions as more in the nature of a joke that should not have been taken so seriously. In particular he denied any holding or placing of a firearm to his head. He considers that his wife over-reacted in contacting the doctor.

1. We will proceed on the basis that he seeks to have both subjects addressed (questions of law, and the merits).

Grounds

1. As the Commissioner's submissions in reply note, there appear to be three grounds raised as questions of law:

(a) The Tribunal wrongly determined the matter not on the reason for revocation (alleged threat of self-harm) but on a 'substituted reason' or a 'substituted charge' (i.e. failure to comply with and understand, safe storage requirements).

In his notice of appeal Mr Leviny put the point in these terms -

The reasons for revoking firearms licence as stated in the Notice of Revocation under the Firearms Act 1996 dated 18 June 2012 were not supported in the reasons for appeal, but other reasons were substituted. Not only was that wrong but the substituted reasons carry their own statute penalties.

(b) The Tribunal wrongly referred at [73] to the need for him to obtain a psychiatric or psychological report to give clear evidence of his psychological stability.

In his notice of appeal Mr Leviny put the point in these terms -

The revocation order embraced future recovery measures that were statute bared [sic] by fact of the order.

(c) The Tribunal did not consider Mr Leviny's written submissions filed in the proceedings.

In his notice of appeal Mr Leviny put the point in these terms -

The written submissions was (sic) not allowed to be read thus suppressing the applicants evidence and arguments as these were assumed to be considered, but there is no recognition of the points they made in the reasons for decision despite opposing evidence and argument being sited (sic).

1. At the appeal hearing, Mr Leviny referred to his long history of using firearms in connection with farming for control of predators and pests and humane killing of stricken animals. He said he had used firearms since the age of 12, he is now 72. He expressed concern that he will now be met by a refusal to re-issue to him a licence at any time in the future by reason of s 11(4)(b). He says that he has already raised the issue with the police and was met with a reply based on that ground.

1. He also challenged the Tribunal's assessment of his conduct in relation to the safe storage of the rifle. He defended the fact that he had not returned the firearms to safe storage on return to the house on the evening of 7 June after shooting the hare, as he had not finished using them. In his opinion it was acceptable to put them aside in the cupboard in those circumstances.

Consideration

1. As to (a). Section 63(1) of the ADT Act provides:

In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

1. The Tribunal sits at the third point of the decision-making hierarchy in cases of this kind. The first two decisions are made by different delegates of the administrator, the primary decision and the internal review decision. Normally the Tribunal takes the internal review decision as the operative decision, and confines its consideration to the grounds upon which the administrator relied in that decision.

1. There is no obligation on the administrator to confine its determination at the internal review stage to the grounds relied upon in the primary determination. It was open to the administrator to widen the grounds, as occurred in this instance, at the internal review stage. This can also occur at the external review stage. Due process dictates that the review applicant must be afforded a reasonable opportunity to reply to any extended or varied case.

1. While the Commissioner's reliance on the further ground at the internal review stage may have taken Mr Leviny by surprise, Mr Leviny had notice of the further ground when he applied to the Tribunal for review. He was given the opportunity to address it. There was no error by the Tribunal in addressing this ground. It formed part of the reviewable decision.

1. As to (b). At para [72], the Tribunal concluded its principal deliberation, referring to the unsafe storage issue. At [73] it said:

73 While I accept that there is doubt about whether or not the Applicant did make a serious threat of self-harm, there is no doubt that Mrs Leviny took the matter seriously, hid the firearms and sought medical assistance for the Applicant. Given the seriousness of the situation I also suggest that the Applicant obtain a psychiatric or psychological report giving clear evidence of his psychological stability and that there is no psychological reason why he should not hold a firearms licence.

1. The above statement is no more than a pastoral one, of a kind sometimes seen in Tribunal decisions. It is simply making a suggestion to the applicant as to how the applicant might go about satisfying the Commissioner in future that he can be re-entrusted with permission to possess and use firearms. As the Commissioner's submissions note, there was material before the Tribunal, in particular Dr Huntsman's assessment, which alluded to the issue of psychological stability. We add that it is clear from other material filed that Mr Leviny's history of possession and use of firearms prior to the events of 7 June was an unblemished one.

1. As to (c). We agree with the Commissioner's submissions that the hearing member clearly acknowledged (see transcript of hearing, 15 March 2013) that he had received Mr Leviny's written submissions and considered them. The Tribunal is not required, in giving reasons for decision, to refer in a detailed or slavish way to the material placed before it by the parties. In this instance the Tribunal gave a clear account of the background circumstances, and explained clearly the basis for its ultimate decision affirming the revocation.

1. Other Matters. Mr Leviny referred at hearing to the three inspections recorded in the Commissioner's material where visiting officers had found his weapons to be stored safely. Clearly he considers that taking his licence off him for one infraction is too severe.

1. It may well be that in some circumstances it would be sufficient to deal with a breach of safe storage requirements by penalty proceedings rather than by removal of a licence.

1. However, in our view it was open to the Commissioner and, equally, to the Tribunal to decide that the present circumstances did justify revocation of the licence in the public interest. In his submissions Mr Leviny sought to divorce the safe storage breach from the wider events of the evening of 7 June. In our view, the Tribunal did not go that far. While it reached no firm conclusion on whether or not he had the rifle with him at the time of his remarks, it can be inferred that his wife had acted in the way she had out of a well-founded concern for his welfare and that the doctor she had called, someone who knew both of them well, had no doubt as to the seriousness of her concern and the apparent gravity of the situation.

Conclusion

1. We see no reason for intervening to reconsider the ultimate decision of the Tribunal.

1. As to the merits, we do not think it productive to revisit the issue of what exactly occurred on the night of 7 June, in particular whether Mr Leviny had a rifle in his hand that he held to his head or the rifle was out of reach at the time.

1. We would simply note that were Mr Leviny to make a fresh application for a licence, he could have any decision to refuse the application reviewed, first internally and then by the Tribunal. Were the Commissioner to give as a reason one referring to sub-section (4)(b) and relying in turn on the circumstances of the evening of 7 June 2012, the Tribunal could examine the material again then.

1. Mr Leviny made an application for the expenses he had incurred in bringing his case to the Tribunal. The usual rule in the Tribunal is that the parties bear their own legal costs and any expenses. The Tribunal may make an award of costs, by exception, if it is 'fair' to do so. In our view, there is nothing about this case that warrants any further consideration of Mr Leviny's application, especially when he has been unsuccessful.

Order

Appeal dismissed.

Decision last updated: 23 July 2013