Liston v Commissioner of Police, NSW Police Force

[2008] NSWADT 156

CITATION:	Liston v Commissioner of Police, NSW Police Force [2008] NSWADT 156
DIVISION:	General Division
PARTIES:	APPLICANT Richard William Liston RESPONDENT Commissioner of Police, NSW Police Force
FILE NUMBER:	073307
HEARING DATES:	15 February 2008, 9 May 2008
SUBMISSIONS CLOSED:	9 May 2008
DATE OF DECISION:	29 May 2008
BEFORE:	Handley R - Deputy President
CATCHWORDS:	Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms Act 1996 Firearms Regulation 2006
CASES CITED:	Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Manda v Commissioner of Police, NSW Police Service [2001] NSWADT 13 Fielden & Fielden v Commissioner of Police, NSW Police Service [2000] NSWADT 156
REPRESENTATION:	APPLICANT T Morgan, solicitor RESPONDENT S Thompson, solicitor
ORDERS:	The decision under review is set aside and a decision substituted that a category AB firearms licence is to be reissued to Mr Liston subject to the condition that his firearms should be kept and secured in the approved safe storage of an approved shooting club and only be used for target shooting and other recreational shooting as part of the approved shooting club’s activities.

REASONS FOR DECISION

1 On 16 October 2007, Richard Liston applied to the Tribunal for the review of a decision of the Commissioner of Police (‘the Commissioner’) made under the Firearms Act 1996 (‘the Act’) to revoke his category AB firearms licence on the grounds of public safety and the public interest.

Background

2 Mr Liston is aged 46. He is a Detective Senior Constable in the NSW Police Force currently stationed in Broken Hill. Mr Liston was first granted a firearms licence on 25 November 1992. He was granted a category AB firearms licence on 11 December 1997. In 2002, following a work-related psychological injury, Mr Liston was placed on permanent restricted duties, with the removal of his service firearm.

3 On 18 September 2006, following an allegation that Mr Liston had used his private firearms in the presence of a 16 year old girl, his firearms licence was suspended “in the public interest” and Police took possession of the private firearms owned by Mr Liston.

4 On 28 August 2007, a delegate of the Commissioner decided to revoke Mr Liston’s category AB licence on the ground that it would not be in the public interest for him to continue to hold a licence authorising the possession and use of firearms. On 27 September 2007, another delegate of the Commissioner confirmed this decision after an internal review.

Mr Liston’s evidence

5 Mr Liston provided a statement dated 30 November 2007 and gave oral evidence at the hearing on 15 February 2008. He said he served in the Army for 12 years from 1982, initially in the First Australian Regiment and then in the Military Police. This service required psychological screening with which Mr Liston had no problems. He joined the NSW Police Force in 1994. In about 1996, he was stationed at Bankstown when, while off duty and unarmed, he arrested a man armed with a knife who had attacked a passenger on a train. He subsequently experienced anxiety and uncertainty about whether, if he had been armed at the time of the incident, he should have used his firearm.

6 Mr Liston has been stationed in Broken Hill since July 1998. He said he was involved in another incident in 2001 when he apprehended an offender who injured a woman with a knife. Mr Liston arrested the offender at gunpoint, thinking it might be necessary to use his firearm. Afterwards, Mr Liston was very concerned at how close he had come to using his firearm. He felt physically sick and, in the longer term, the incident caused him to experience anxiety. Thereafter, Mr Liston stopped carrying a firearm because of his concern about injuring or killing a member of the public. When, about 12 months later, he sought medical help from the Senior Police Medical Officer, Dr Tom Norris, and through the Employee Assistance Program, Mr Liston was diagnosed with Depression and Post Traumatic Stress Disorder (‘PTSD’). He subsequently had treatment over a period of four years.

7 In cross-examination, Mr Liston agreed that in May 2002 he had been ordered to seek medical help. He said that he prepared Computerised Operational Policing System (‘COPS’) reports on the incidents in 1996 and 2001, but has not since sought access to them. He said he thought the 2001 incident probably had a greater effect on him. There were also other traumatic incidents he experienced in the course of his police duties.

8 Mr Liston said that in about June 2002, he was referred to a psychiatrist in Adelaide, Dr Michael Lynch, whom he continued to see until about June/July 2007. Mr Liston had confidence in Dr Lynch as his treating specialist. Dr Lynch told him he would never recommend Mr Liston returning to operational duties involving carrying a service weapon and Mr Liston accepts this. Mr Liston said he did not see Dr Lynch for the purpose of Dr Lynch preparing his report dated 6 July 2007. Dr Lynch had previously prescribed medication in conjunction with Mr Liston’s general practitioner, Dr Nachiappan, in Broken Hill. Mr Liston said he ceased taking medication on Dr Lynch’s and Dr Nachiappan’s advice after his symptoms ceased in early April 2006. He is fully recovered and has no current symptoms. He had lengthy discussions with his medical advisers about the nature of his illness and believes he has a reasonable understanding of this and would recognise the symptoms if they re-occurred.

9 Mr Liston is on permanent restricted duties and he said that since November 2002 he has had an office job – a management position – as a ‘brief’ checker. His current duties have not generated any incidents. Mr Liston denied the allegation that he threatened a colleague in 2006. He said this matter involved his son being denied police assistance when he was seriously injured, and Mr Liston requesting that action be taken over this. Police management said they would look into it.

10 Mr Liston said the day after his son’s accident, he asked Detective Inspector (‘DI’) Smith if he was going to do anything about his complaint and said that if DI Smith did not do so, then he would. Mr Liston said he could have spoken to the police officer concerned or taken the matter up with police management or through disciplinary channels. Mr Liston said he believes the conflict he has experienced with work colleagues at Broken Hill over the past few years is resolving.

11 With regard to Assistant Commissioner Steve Bradshaw’s written apology to him and his wife, Mr Liston agreed that, contrary to his statement, Superintendent Goodwin had not issued the apology, although Mr Liston said the apology had involved conduct by Superintendent Goodwin, with whom he considers he has a personality clash. Mr Liston said in his view, the apology is relevant to the revocation of his firearms licence.

12 Mr Liston said he is married with children and has a stable family situation. In cross-examination, he agreed that he had experienced domestic problems, including separation from his wife for a period around April 2002. Mr Liston said these problems were directly related to the extreme difficulties he was having in functioning at work. The incident involving his wife on 5 April 2002 followed his having sought legal advice. Mr Liston suggested he and his wife should meet to talk at the Police Station so that there were witnesses and no allegation could be made that could be used in any Apprehended Violence Order (‘AVO’) proceedings that might be brought against him. He does not recall his wife hitting her head – she fell over in the Police Station and another police officer came over and assisted her.

13 Mr Liston acknowledged that he told “countless lies” around April/May 2002, until the time that he “broke down on 20 May 2002”. He said that the recommendation made by the Senior Police Medical Officer, Dr Norris, in a report dated 8 May 2002, that Mr Liston’s service weapon should be returned to him and that he be allowed to return to operational duties, was based on Mr Liston’s lies. Since then, he has not lied. As a result of the incident on 5 April 2002, a transfer to Mt Druitt was proposed. Mr Liston agreed that he had had irrational thoughts about this transfer. He only lasted one day at Mt Druitt, realising that a transfer would not fix his problems. He therefore returned to Broken Hill and sought medical assistance. He discussed his problems with Dr Nachiappan, but it was Gale Bennett from the Commonwealth Rehabilitation Service (‘CRS’) who referred him to Dr Lynch.

14 In cross-examination, Mr Liston was asked about a report by Peter Briggs, Clinical Psychologist, who examined him on 14 December 2006 and prepared a report dated 22 December 2006. Mr Liston disagreed with Mr Briggs’ opinion that he has residual paranoid characteristics and a personality disorder. He agreed with Mr Briggs’ opinion that his psychological injury has now resolved. He said Mr Briggs asked him about his past history and his current situation, including in the workplace. Mr Liston said at that time in 2006, he was suffering from anxiety symptoms “relating to extraordinary events in the workplace” and an investigation by the Ombudsman. He was not, however, suffering from depression or PTSD. He was unfit for operational duties in December 2006 in so far as he was unable to carry a service weapon, but not because of anxiety.

15 Mr Liston said he saw Dr William Kirby, Senior Police Medical Officer, in 2007, with whom he discussed returning to operational duties. Dr Kirby’s view was that a person who has suffered PTSD should not return to operational duties because if the person is placed in the same situation again, he might suffer a relapse. With regard to a report by Dr Marilyn Moore, Psychiatrist, dated 3 December 2003, referred to by Dr Kirby, Mr Liston said, at that time, he had been very disappointed by the opinion expressed by Dr Lynch, to which Dr Moore referred, that he should not return to operational duties.

16 Dr Moore’s report was obtained in relation to Mr Liston’s claim for workers compensation and his returning to work. With regard to Mr Liston’s mental health status, Dr Moore found he “was not at all depressed”. Mr Liston said he had made significant progress by that time, with his PTSD symptoms having remitted. Dr Moore’s opinion was that Mr Liston’s employment was “a substantial contributing factor to the development of a Major Depressive Disorder” and, in relation to his capacity for employment, said Mr Liston’s reluctance to draw his weapon “may pose a risk for fellow officers. This is the only restriction I would place on him resuming employment.”

17 Mr Liston enjoys his sport as a recreational shooter and has a firearms collection that he values, comprising ten rifles, currently confiscated. These are all registered. He used the rifles for target shooting and hunting. Mr Liston said while he does not feel he can cope with the responsibility of carrying a service weapon, he feels differently about his private firearms and believes that with them, he does not pose a threat to anyone.

Michael Goodwin’s evidence

18 Mr Goodwin holds the rank of Superintendent and, since January 2006, has been Area Commander, Barrier Area Local Command at Broken Hill, and Mr Liston’s supervisor. Mr Goodwin provided a statement dated 6 February 2008 and gave oral evidence at the hearing on 15 February 2008. In his statement, Mr Goodwin said he was involved in the suspension of Mr Liston’s firearms licence on 18 September 2006. The precipitating events commenced on 5 April 2002 when Mr Liston brought his wife into the Police Station in Broken Hill for the purpose of having their discussion recorded on police surveillance cameras operating there. According to a psychologist’s report dated 27 June 2002, Mrs Liston fainted and Mr Liston did not attend to her wellbeing. Mr Liston’s then supervisor, spoke to him about the incident and Mr Liston’s service firearm was taken from him and has not since been returned.

19 In his statement, Mr Goodwin said that in making his decision to suspend Mr Liston’s firearms licence on 18 September 2006, he took into account the medical evidence concerning Mr Liston, together with other considerations, including the allegation made against Mr Goodwin by the parents of the 16 year old girl. Mr Goodwin said subsequent medical reports have reinforced his opinion that Mr Liston should not be reissued with a firearms licence. Mr Goodwin did not attribute significant weight to Dr Lynch’s opinion because Mr Goodwin did not know whether Dr Lynch had been briefed with Mr Liston’s relevant medical history. In cross-examination, Mr Goodwin said the medical reports suggest Mr Liston might relapse into his previous psychological condition if placed on operational duties.

20 Mr Goodwin’s view is that if Mr Liston is unfit to have a service firearm, then he is unfit to have private firearms. Mr Goodwin expressed the opinion that Mr Liston is no longer a fit and proper person within the meaning of the Act and it is not in the public interest for him to have a firearms licence.

21 Mr Goodwin said, to the best of his knowledge, the apology made to Mr and Mrs Liston by Assistant Commissioner Steve Bradshaw dated 29 October 2007 had nothing to do with the suspension of Mr Liston’s firearms licence or the seizure of his private firearms. However, in oral evidence, Mr Goodwin said he knew nothing of the context of the apology.

Dr William Kirby

22 Dr Kirby is an Occupational Physician and General Practitioner holding the position of Senior Police Medical Officer employed by the NSW Government. He provided an affidavit dated 13 February 2008 and gave oral evidence at the hearing on 9 May 2008. Dr Kirby said he regards himself as independent although he acknowledged that he identifies with the Police having worked with the Police for the past four years. He also works in general practice for 10 hours a week.

23 On 24 May 2007, Dr Kirby issued a notice under section 79 of the Act stating that Mr Liston was “not seen fit to have a service firearm access on psychological grounds”, and that “[a]ccess to firearms generally is seen, in my opinion as inappropriate”. Dr Kirby said he would have issued the notice “far sooner than 24 May 2007” had he not been labouring under the misapprehension that he could not issue such a notice because he was not Mr Liston’s treating doctor. This misapprehension was corrected by advice from Superintendent Goodwin shortly before 24 May 2007.

24 Dr Kirby stated that he conducted a risk assessment according to the Australian/New Zealand Standard, Risk Management, AS/NZS 4360:2004. This required that he consider two principal factors: (1) the probability of reckless or dangerous use of a firearm, and (2) the severity of the consequences of such a use. Dr Kirby assessed Mr Liston as a moderate probability of reckless or dangerous use of a firearm, and high in terms of the consequences of such use because of the possibility of death and significant and/or psychological morbidity.

25 Dr Kirby then considered what degree of risk was acceptable in Mr Liston’s case. He noted that Mr Liston was on long term restricted duties and said that on the psychiatric evidence available this should continue. With regard to the social and environmental setting, Dr Kirby noted that Mr Liston required his licence for recreational purposes, as a collector and social shooter, and that there were no other economic factors such as the need for the licence as a competitive shooter or to shoot vermin. The risk assessment from the occupational setting therefore remained unweighted. Dr Kirby concluded that the overall risk from Mr Liston holding a firearms licence was unacceptable, and he was not a fit and proper person to be reissued with his service firearm or to hold a firearms licence.

26 Dr Kirby stated that in his opinion Mr Liston’s treating psychiatrist Dr Lynch’s report of 6 July 2007 is seriously flawed in so far it appears Dr Lynch was not fully briefed on Mr Liston’s medical history, including relevant medical reports. It appears Dr Lynch only relied on his own earlier reports. Moreover, Dr Lynch’s risk assessment is based on only the first principal factor – probability – and fails to address severity and occupational, social and environmental factors.

27 Dr Kirby noted, however, that since issuing the section 79 notice and reviewing it for these proceedings, he has not received any further medical reports from Mr Liston. If Mr Liston was to provide a report from his treating doctor and his psychiatrist, Dr Kirby would review his assessment. Dr Kirby said he had understood that Mr Liston was still under treatment in 2007. In cross-examination, Dr Kirby said if he had known Mr Liston was a longstanding active member of a gun club he might have assessed him as a lower risk. Dr Kirby would need more information. Membership of a gun club by itself is not sufficient – it is the training in the use of a firearm that is important. Dr Kirby said he was not aware that between the time of the removal of his service firearm in 2002 and the suspension of his firearms licence in 2006, Mr Liston continued to possess and use personal firearms.

28 In his affidavit, Dr Kirby reviewed the medical evidence provided to him in relation to these proceedings. He noted particular concern at inconsistencies and untruthfulness in Mr Liston’s account in an interview on 11 April 2002, referred to by Dr Norris, Acting Senior Police Medical Officer, in a report dated 11 June 2002. In cross-examination, Dr Kirby said the fact of a Police Officer lying is extremely serious. There are incongruities about Mr Liston’s psychological profile: his indifference, lack of insight, the work related complaints not supported on an independent investigation, and his tendency to blame others. Dr Kirby acknowledged that he does not assess police recruits for suitability to carry firearms: this is done by a police psychologist, who may refer the matter to a psychiatrist. Dr Kirby said that as an Occupational Physician, he has to address psychological matters, but will seek the advice of a psychologist or psychiatrist if necessary.

29 Dr Kirby said PTSD is a permanent condition. Even if a person has recovered from the condition and is symptom free, the person can still suffer a recurrence triggered by certain stressors. He acknowledged that Mr Liston’s operational duties would have contributed to his condition.

Dr Michael Lynch

30 Dr Lynch is a psychiatrist in private practice in Adelaide. Dr Lynch treated Mr Liston about monthly from October 2002 until April 2007, the date he last saw him. Dr Lynch provided a report dated 6 July 2007 and gave oral evidence by telephone at the hearing on 9 May 2008.

31 Dr Lynch stated that he treated Mr Liston for PTSD and associated Major Depression. Mr Liston responded well to treatment. He is not paranoid and does not have any current psychological or pathological disability. The primary reason for recommending that Mr Liston not return to operational duties was the traumatic effect such duties had previously had on him, and the significant risk that a return to such duties – and the carrying of a service firearm - would lead to a relapse and exacerbation of his condition.

32 Dr Lynch said that at no time was Mr Liston at risk of harming himself or others. Mr Liston’s present position as a brief manager is “safe” and his risk of relapse is very low. Mr Liston exhibits no signs of psychosis or personality disorder, and there is no risk of his harming members of the public.

33 Although Mr Liston has told Dr Lynch that he does not want to carry a service firearm because of the risk of his harming a member of the public, Dr Lynch does not regard Mr Liston’s possessing private firearms as a risk to the community: a private firearm is not carried with the possibility of his harming a member of the public. Dr Lynch was aware that after the removal of his service firearm, Mr Liston continued to possess personal firearms. Dr Lynch did not consider Mr Liston to pose any threat to himself or the public. The stressors for Mr Liston are quite specific – where his life is threatened and he has to defend himself. It is highly unlikely that this would happen in private life.

34 In cross-examination, Dr Lynch was referred to the letter from Mr Liston’s solicitor dated 24 May 2007 asking him to provide a report in relation to the current matter. Despite references in that letter to a ‘campaign’ by Mr Liston to overcome the Police decision that he not be permitted access to his personal firearms, Dr Lynch said his role was to provide an unbiased opinion and he ignored the opinions expressed by Mr Liston’s solicitor. Dr Lynch said that he was not briefed to provide the report until after he last saw Mr Liston in April 2007, and he did not see Mr Liston for the purpose of preparing his report.

35 Dr Lynch acknowledged that he has a duty to inform the police if a patient poses a threat to himself or the general public. He has never needed to do so in the case of Mr Liston because he has never considered Mr Liston to pose any such risk. It is only the situations with which Mr Liston might be confronted in operational duties that are of concern. Dr Lynch said he did not see the need to call for the reports referred to in Dr Kirby’s report of 5 May 2007, a copy of which was provided to him by Mr Liston’s solicitor. Dr Lynch said that he is not influenced by the opinions of others in preparing an independent opinion. In Mr Liston’s case, Dr Lynch had his own history taking and treatment of Mr Liston over many years on which to base his opinion. He took very little account of Dr Kirby’s assessment – as a private psychiatrist, he does not make a risk assessment of the kind made by Dr Kirby.

Dr Roger Peters

36 Dr Peters, a Clinical and Consultant Psychologist, provided a report dated 19 November 2007 and gave oral evidence by telephone at the hearing on 9 May 2008. He stated that he has seen over 3,000 NSW Police Officers over the last 25 years in relation to stress, and has had 30 years experience in the Army or the Army Reserve, 15 years of which specifically relate to psychological assessment treatment. Most of his assessment of Police Officers has been in relation to whether they are “fit for duty”.

37 Dr Peters noted that Mr Liston would have undergone basic psychometric testing on recruitment into the Army Reserve at the age of 17, more comprehensive psychometric examination on enlistment into the regular Army, and further examination on joining the Military Police. On joining the NSW Police, he would also have been assessed by interview and psychometric assessment. Dr Peters said it is unlikely that Mr Liston suffers from a personality disorder. If he suffered from such a disorder, this would have been identified on psychometric testing. Theodore Millon’s work would suggest Mr Liston has an obsessive trait to his personality, which has probably been beneficial to his work as a Police Officer.

38 Dr Peters said that, in his view, the diagnosis of PTSD was accurate. PTSD commonly gives rise to depression. The evidence indicates Mr Liston’s PTSD has been in remission for some time now and there is no need for ongoing treatment. With PTSD there is always a risk of recurrence and, given Mr Liston’s history, he should not return to operational duties, which would pose such a risk. However, with the passage of time, the possibility of remaining in remission increases, and Dr Peters noted that while Mr Liston experiences significant stress in his work as a brief manager, this has not triggered a relapse. Dr Peters does not believe there is a risk to the public if Mr Liston is near firearms or has them in his possession.

39 In cross-examination, Dr Peters was referred to the letter from Mr Liston’s solicitor dated 11 October 2007 asking him to provide a report in relation to the current matter. Only Dr Lynch’s report of 6 July 2007 was provided with this letter. Dr Peters acknowledged that his report was flawed in so far as he did not have medical reports from Dr McMahon and Dr Whetton, supplied to him later by Mr Liston’s solicitor on 24 December 2007.

40 Dr Peters said his purpose was to assess whether Mr Liston is psychologically stable and suitable to hold a firearms licence. In doing so, Dr Peters relied on his experience of assessing Police Officers over a period of 25 years. He took a balanced and professional approach in doing so and was not influenced by the views expressed by Mr Liston’s solicitor in his letter dated 11 October 2007. Dr Peters noted that, at the time of examination, Mr Liston was not taking medication. He formed the view that Mr Liston’s condition is stable and that if he were granted a personal licence for recreational shooting, he would not be at personal risk or pose a risk to others.

41 In his written report, Dr Peters noted that Mr Liston has had weapons for many years and has committed no offence. Dr Peters said the evidence indicates that even while experiencing the full-blown effects of depression, Mr Liston did not pose any risk to himself or others. Dr Peters described Mr Liston as a man of “kindly disposition” who gave no indication of being capable of harming anyone. Indeed, it was his fear of harming someone that was the pre-cursor to his breakdown: “So from that point of view, the evidence would suggest the very opposite of him posing any risk.”

The Commissioner’s Submissions

42 Mr Thompson, for the Commissioner, said the underlying principles of the Act set a high threshold. Dr Kirby was the only expert witness who made a comprehensive assessment based on all the reasonably available evidence. He was the only witness who carried out a risk assessment according to the Australian/New Zealand Standard. He was unshaken in giving his evidence despite a gruelling cross-examination. The opinions expressed by Dr Lynch and Dr Peters were, essentially, given in isolation and without recourse, to much of the relevant medical evidence. They only addressed the probability of the reckless or dangerous use of a firearm and did not address the severity factor. Dr Kirby concluded that the overall risk from Mr Liston holding a firearms licence was unacceptable.

43 Mr Thompson noted that not only were Dr Lynch and Dr Peters under-briefed, their letters of instruction from Mr Liston’s solicitor were not consistent with the objective of providing an independent judgement in accordance with the Tribunal’s Practice Note No 14 on Expert Evidence and Reports. Rather, they were briefed as an advocate for Mr Liston.

44 In conclusion, Mr Thompson said Mr Liston suffers from a permanent underlying condition – PTSD. This condition can recur and manifest itself as a result of being triggered by stressors, whether in the workplace or the home. Mr Thompson submitted that it is in the public interest that Mr Liston not be re-issued with a licence.

45 Alternatively, should the Tribunal decide otherwise, Mr Thompson submitted that a firearms licence could be issued to Mr Liston subject to conditions, for example, that his firearms should be kept and secured at a Gun Club and only be used for target shooting and shooting in the bush as part of Gun Club activities. Mr Thompson noted Dr Kirby’s evidence that since issuing the section 79 notice, he has not been approached by Mr Liston with new medical evidence. There should be a pre-condition to the issue of such a conditional licence that an up to date psychiatric report should be provided to Dr Kirby who would be satisfied that there is no risk to the public from Mr Liston using firearms in such an environment.

Mr Liston’s Submissions

46 Mr Morgan, for Mr Liston, said while Mr Liston’s behaviour has included criticism of the work of others, he has not been found to have a personality disorder. Although Dr Lynch and Dr Peters did not make a risk assessment in accordance with the Australian/New Standard, both have a lifetime of experience and found that Mr Liston’s use of a firearm posed no risk or virtually no risk to the public. Dr Lynch is Mr Liston’s treating doctor who treated him approximately monthly over a period of about four and a half years. Dr Peters has a long experience of assessing Army and Police personnel. Mr Liston’s history is of non-violence – he refused to use a firearm on duty to avoid the risk of his hurting someone. There is no history of his posing any risk to the public.

47 Mr Morgan noted that Dr Kirby acknowledged that he had no up to date information about Mr Liston. Most of the reports to which Dr Kirby referred derived from examinations of Mr Liston that took place some time ago. By contrast, the reports of Dr Lynch and Dr Peters are recent in origin. Both recognised that the primary consideration must be to protect the public interest, and said that Mr Liston’s holding a personal firearms licence posed no risk. Mr Morgan said that Mr Liston’s illness was an isolated incident of limited duration, and the Tribunal should have confidence that he would not abuse his personal firearms licence if this is returned to him.

48 With regard to the alternative position put by Mr Thompson, Mr Morgan said this is very much a “second best”. Although better than not having a licence at all, Mr Liston feels his enjoyment would be significantly curtailed. However, Mr Morgan acknowledged that such a conditional licence could be a stepping stone to a full licence.

Discussion

49 The underlying principles of the Act stated in section 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 paragraph 28, Deputy President Hennessy said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”.

50 Section 24(2)(d) of the Act provides that the Commissioner may revoke a firearms licence for any reason prescribed by the regulations. Clause 19 of the Firearms Regulation 2006 states:

“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.”
51 In the decision under review, dated 27 September 2007, a delegate of the Commissioner decided it would not be in the public interest for Mr Liston to continue to hold a licence. The delegate relied, in particular, on the opinion expressed by Dr Kirby.

52 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at paragraph 25, the Appeal Panel said that the ‘public interest’ “is an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual”. (See also Manda v Commissioner of Police, NSW Police Service [2001] NSWADT 13 and Fielden & Fielden v Commissioner of Police, NSW Police Service [2000] NSWADT 156, to which Mr Thompson referred.)

53 I am satisfied from the evidence of Mr Liston’s treating Psychiatrist, Dr Lynch, that Mr Liston has recovered from the episode of PTSD and Major Depression that was manifest in his behaviour in 2002. There is no dispute that PTSD is a permanent condition and that while Mr Liston has recovered from the 2002 episode and is, therefore, in remission, he is liable to the condition recurring on being triggered by certain stressors. Again, there is no dispute that this could occur if Mr Liston were to return to operational duties, in particular because he would be required to carry a service firearm. However, I also note that Mr Liston has apparently coped well in his current position of brief manager, which can at times, be stressful.

54 There is no evidence before me of Mr Liston’s use of firearms having posed a risk to public safety. I note that he continued to hold a firearms licence after the removal of his service firearm in 2002 until September 2006, by which time, according to Mr Liston’s evidence, his symptoms had ceased. Mr Liston said that he ceased taking medication in early April 2006 on the advice of Dr Lynch and Dr Nachiappan, Mr Liston’s general practitioner. Dr Lynch last treated Mr Liston in April 2007.

55 With regard to Mr Liston’s medical evidence, I agree with Mr Thompson that Mr Liston’s solicitor’s letters of instruction to Dr Lynch and Dr Peters were not consistent with the objective of the impartiality and independence of expert evidence emphasised by the Tribunal’s Practice Note Number 14. Nevertheless, I accept from the evidence of Dr Lynch and Dr Peters that they approached their task of providing a professional opinion with the necessary objectivity and independence. Both clearly have long experience in their professions, and I note that Dr Peters has for many years assessed military and police personnel for ‘fitness for duty’. It is, however, regrettable that neither Dr Lynch nor Dr Peters was in possession of all the relevant medical reports available to Dr Kirby in formulating his assessment.

56 Dr Kirby appears to have approached his task methodically and made a comprehensive assessment based on his examination of Mr Liston and the other available medical information. However, since before the time he issued the section 79 notice on 24 May 2007, it appears he has not re-examined Mr Liston and, as he acknowledged, Mr Liston has not provided him with further medical evidence as to his fitness for possessing firearms. To that extent, Dr Kirby’s evidence may lack currency.

57 Dr Lynch and Dr Peters both gave evidence to the effect that Mr Liston poses no risk to either himself or the public if his firearms licence is reissued. While neither doctor had the benefit of reviewing all relevant medical reports in making their assessments, in the light of Mr Liston’s evidence, I found their evidence to be persuasive, and I am satisfied that Mr Liston poses virtually no risk to either himself or the public.

58 However, the evidence of all three expert witnesses is to some extent open to attack: on the basis, in the case of Dr Lynch and Dr Peters, of their being inadequately briefed and not having all medical reports; and, in the case of Dr Kirby, of the lack of currency of some of the information upon which he based his assessment, and, as he acknowledged in cross-examination, of his being unaware that between the removal of Mr Liston’s service firearm in 2002 and the suspension of his firearms licence in 2006, Mr Liston continued to possess and use personal firearms. With this in mind, it is appropriate given the overriding need to ensure public safety, to proceed cautiously.

59 In my view, given the evidence before the Tribunal, the correct and preferable decision is to revoke the Commissioner’s decision and substitute a new decision that Mr Liston’s category AB firearms licence be reinstated subject to a condition along the lines suggested by Mr Thompson. Section 19(1) of the Act provides that the Commissioner may issue a licence “subject to such conditions as the Commissioner thinks fit to impose”. The condition to which Mr Liston’s reinstated licence will be subject is that his firearms should be kept and secured in the approved safe storage of an approved shooting club and only be used for target shooting and other recreational shooting as part of the approved shooting club’s activities.

60 However, I do not see the need for further psychiatric evidence to be provided to Dr Kirby as a pre-condition to the issue of such a licence, as suggested by Mr Thompson, given the evidence provided by Dr Lynch and Dr Peters to the Tribunal.

61 As Mr Morgan recognised, the reinstatement of Mr Liston’s licence on this basis may be regarded as a step towards the reinstatement of a full licence.

Orders

The decision under review is set aside and a decision substituted that a category AB firearms licence is to be reissued to Mr Liston subject to the condition that his firearms should be kept and secured in the approved safe storage of an approved shooting club and only be used for target shooting and other recreational shooting as part of the approved shooting club’s activities.