Makin v Commissioner of Police, NSW Police Force

[2014] NSWCATAD 50

This decision has been amended. Please see the end of the decision for a list of the amendments.

Civil and Administrative Tribunal

New South Wales

Case Title:	Makin v Commissioner of Police, NSW Police Force
Medium Neutral Citation:	[2014] NSWCATAD 50
Hearing Date(s):	25 March 2014
Decision Date:	24 April 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Naida Isenberg- Senior Member
Decision:	The decision under review is affirmed
Catchwords:	Firearms licence revocation - false declaration - psychiatric treatment -public interest - psychiatric evidence equivocal
Legislation Cited:	Firearms Act 1996 Administrative Decisions Review Act 1997
Cases Cited:	Shi v Migration Agents Registration Authority [2008] HCA 31 Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 Ward v Commissioner of Police, New South Wales Police Service[2000] NSWADT 28 Commissioner of Police v Toleafoa [1999] NSWADTAP AMJ v Commissioner of Police NSW Police Force [2012] NSWADT 228
Category:	Principal judgment
Parties:	Michael Makin (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation
- Solicitors:	M Makin (in person Applicant) Sparke Helmore (Respondent)
File Number(s):	133291

REASONS FOR DECISION

1. The Respondent has decided to revoke the firearms licence of the Applicant, Michael Makin, on the basis that he did not disclose his psychiatric condition in an application for a firearms licence and that it is not in the public interest for him to continue to hold a firearms licence.

2. 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.

   The Law

3. The general principles of the Firearms Act 1996 ('the Act') are set out in s.3 of the Act:

   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.

4. Section 24(2)(b)(ii) of the Act prescribes that the Commissioner of Police may revoke a firearms licence if the licensee contravenes any provision of the Act or the Firearms Regulation 2006 ('the Regulation'), whether or not the licensee has been convicted of an offence for the contravention.

5. Section 70 of the Act prescribes that a person must not, in or in connection with an application under the same Act or the Regulation, make a statement or provide information that the person knows is false or misleading in a material particular.

6. Section 24(2)(d) of the Act prescribes that a licence may be revoked for any other reason prescribed by the Regulation.

7. Clause 19 of the Regulation prescribes 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.

8. Section 63 of the Administrative Decisions Review Act 1997 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 decision-maker, 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.

BACKGROUND

1. The applicant held a Minor's Firearms Permit during 1987 and 1988, and held a Target Pistol licence from 1994 to 1999. The applicant has held a variety of firearms licences since 2011, issued for the genuine reasons of Target Shooting and Recreational Hunting/ Vermin Control and as a Firearms Collector. In all, he had 14 registered firearms.

2. The applicant had signed declarations on 3 March 2011, 17 March 2011 and 7 April 2012 as part of his firearm licence and permit applications. In each case he answered 'No' to the question ('the personal history question') :

   Have you in NSW or elsewhere:
   ...
   

   4
   d) Have you ever attempted suicide or self harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?

   
   

3. On 16 December 2012 the applicant applied for a permit to authorise use of a concealed pistol. In the application he answered "yes" to the personal history question. That application was refused, both at first instance and on internal review.

4. On 9 April 2013 the applicant's firearms licence was suspended following concerns that he had answered "yes" to the personal history question on his concealed pistol permit application.

5. The applicant provided 2 reports from Dr B K Iyer, Consultant Psychiatrist dated 8 May 2013. On the basis of the psychiatric reports the following special condition was imposed on his licence:

   YOU MUST ATTEND PERIODIC PSYCHIATRIC REVIEWS EVERY 6 MONTHS FOR THE TERM OF THIS LICENCE. YOU MUST PROVIDE THIS OFFICE WITH A LETTER FROM A REGISTERED PSYCHIATRIST AFTER EACH VISIT TO PROVE THERE ARE NO CONCERNS HELD. THE FIRST LETTER IS DUE ON THE 31/12/2013.

6. The applicant agreed to comply with the special condition and the suspension on his licence was lifted. Shortly thereafter his licence was revoked nonetheless as the condition could not be adequately monitored.

EVIDENCE

1. In addition to the s.58 documents, the Tribunal had before it the clinical notes of Dr Cantor, who had been the applicant's treating psychiatrist, clinical notes of Dr Smith and admission notes from Sunshine Coast Hospital and Health Service in respect of the applicant's admission on 21 June 2009. The applicant gave detailed evidence and also produced a report from Dr Ang, consultant psychiatrist dated 10 February 2014. He provided a joint reference signed by 16 people who were aware of the nature of these proceedings and of his bipolar disorder

2. The applicant said he had been shooting since he was a boy and had obtained his full licence in about 1992.

3. He said he first "became unwell" in 1996 because of financial problems; his moods had always been low although at other times he was quite out-going. In 1997 he suffered his first manic episode, which he said was precipitated by problems with his insurance company and an argument with his wife. He went to hospital where he saw a psychiatrist, Dr Martin. He moved to Queensland to be nearer his parents who could "keep an eye on him". He saw a GP who diagnosed bipolar disorder and Dr Martin, he said, agreed with that diagnosis. It took him a few weeks to settle down and then he went into the depressed phase of the cycle. In 1998-9 he was able to attend TAFE, undertaking various IT studies. In 1999/2000 he conducted his own business.

4. He described his symptoms when having a manic episode as including sleeplessness, being very talkative and outgoing, spending money recklessly, being impulsive and having no inhibitions - "like being drunk but not intoxicated". He said that during a manic episode he does not have the full ability to make reasoned decisions. He might argue, but would still be "in control". He acknowledged he might lose total rational thought. His manic episodes last for 3-4 weeks. The depression afterwards has lasted for 6-12 months. By way of treatment, he said, a number of mood stabilisers were trialled over the years.

5. In 2000 he "became unwell" again. He was at a party and his wife was being harassed by another guest. He intervened and was 'king hit' and was knocked to the ground. He then experienced severe headaches for which he was medicated with codeine. He was also medicated with benzodiazepine for his mood. About 2 months later he had another manic attack and was admitted to Nambour hospital, where he remained for about 2 weeks. He recognised what was occurring as a manic episode but the doctor, who he considered to be unsympathetic, attributed it to his medication. In 2001 he was put on methadone, because he had become addicted to the codeine he was taking for his headaches. After 12 months he was permitted to attend once a week, instead of daily, to collect his weekly supply.

6. Dr Smith reported on 26 May 2003 that the applicant had reduced his methadone because he became hypomanic when taking a higher (prescribed) dose. He was asked to take Epilim again and to increase the dosage gradually. The applicant had been referred to a psychologist who had diagnosed him with Adult ADD. Dr Smith subsequently wrote of intolerance to Epilim and noted that he had resumed taking Lithium. She reviewed him monthly through to 2004 and appears to have at least been kept informed of his progress by his GP up till 2007.

7. In 2007 the applicant encountered the same unsympathetic doctor as he had seen at Nambour in 2001; he was "treated like a drug addict". He wanted the dose altered because he had "metabolic changes", but the doctor declined.

8. Dr Storer, consultant psychiatrist, wrote in 2008 that the applicant's bipolar had been difficult to control since 2000 and had fluctuated. The applicant agreed that his condition continually fluctuated. He said that the reference to "difficult to control" referred to the various medications that had been trialled but discontinued because of side effects. At the time of Dr Storer's report the applicant was taking 40mg of methadone a day.

9. In June 2009, because he felt a manic episode coming on, he went to Nambour hospital but he was sent away. His GP wrote a referral but the hospital sent him away again. He was desperate to get treatment, and he decided to take an overdose of his medication as a means of obtaining admission. He was taken to Nambour hospital where he was treated for attempted suicide. The notes from the hospital record his stress in relation to upcoming custody proceedings. He was recorded as having taken "high doses" of prescribed opioid and benzodiazepine (diazepam). According to the report of the psychiatric registrar, Dr Wellard, the applicant had taken 5 x 60mg of methadone and 100mg of diazepam and possibly 100mg of temazapan. The applicant denied this was a deliberate overdose to cause self-harm. He took double the usual dose of methadone, which he said, was only enough to "put him to sleep", and about as much as would be given to an accident victim. He also denied that he had acted while in a manic state, but because he was "heading towards" a manic state, he needed to get into hospital. He said there was no intention of harming himself or others, and in fact, his intention was quite the opposite, namely to get treatment. In cross-examination he agreed he had doubled the entire dose of his prescription medication and that while he was confident of the effect of a double dose of methadone, he did not know what would be the combined effect of doubling the methadone as well as doubling the diazepam. He said in hospital he was given anti-psychotic drugs and it was these that accounted for the symptoms described on the discharge summary as "delirium, with lucid, if somewhat vague moments, being interspersed with periods of obvious confusion". In 2009 he was reported as having told Dr Cantor that he took a "calculated risk", and that he had not attempted suicide. He said he has always regarded suicide as a cowardly thing to do to one's family.

10. He was referred to Dr Cantor, consultant psychiatrist, who arranged admission to a private hospital in Brisbane, where he remained for 3 weeks. Dr Cantor reported on 7 January 2011 that the applicant's bipolar had the potential to cause difficulties when he was severely manic or depressed. He considered the applicant to have a responsible attitude to his treatment. When he last saw him he was taking 70mg of methadone per day. He noted the applicant had had 4 manic episodes.

11. The applicant said that up until 4 months ago he was still taking methadone. He would decide on the dose as he felt necessary. He said he had been technically dependent on methadone, but said that he did not "get high" from it, and was never "hanging out" for it - it was for pain relief and a sedative only. He was referred to Dr Cantor's observation in his notes of 5 August 2008 that the applicant, on waking was "hanging out" for methadone at 9.00am. He said that was at a time when he was getting his methadone once a day and could not last the day. Also in late 2008 he was, according to Dr Cantor's notes, feeling "crap" but the applicant denied he was depressed, and that it was his headaches that made him feel bad. Following the overdose there were several months of low mood.

12. In recent months he has been trialling Phentynal (a synthetic opioid analgesic) patches which have been prescribed by his GP, Dr Blackburn, who he sees monthly to obtain his patches. He still gets the headaches if he does not wear the patches. He has tachycardia and a possible link between that condition and his headaches is being investigated. He said that although the methadone had been prescribed for his headaches, it also seemed to help him manage his bipolar disorder. He is cautious about taking too many shifts and is careful not to become overtired. He said he had never taken any illegal substances.

13. Since 2009 he has had no manic episodes, although he still suffers mood swings. Dr Martin had taught him meditation and other relaxation strategies. He said that he and his wife live together with their child and there are no arguments and they communicate well. A few months ago, in his role as a security guard, he came upon a person who had suicided in their vehicle. While he was shaken by the experience it did not precipitate a manic episode as it might have 10 years ago. He had some empathy for the victim who, he said, must have felt much lower than he has ever felt.

14. The applicant provided reports from Dr Iyer, whom he had first consulted as part of the process of applying to joining the Police Force. When he was asked to supply a psychiatric report in relation to his permit application, he said it was logical for him to go back to Dr Iyer.

15. He said he always likes to "have a [psychiatrist]" who knows his case in the event he needs to be admitted to hospital, and that this is just being cautious. He said he understands bipolar is a lifelong illness. He has now engaged Dr Ang and intends to see him 6-monthly, or as the doctor requires, so as to 'touch base'. He said he did not "want to hurt anyone ever" and did not want there to be even a "minute chance" of that happening. The applicant said he believed both his bipolar and his headaches are under control.

16. The applicant said that he had applied for a concealed weapons permit because he thought he could "help the public". By this, he explained that if he were to see an offence being committed he could intervene to protect the public. He wanted to be able to carry a gun "just in case". He would conceal the gun. He would not carry it all the time, but agreed that many places, even shopping malls, were locations where crimes such as robberies could be committed. If potential criminals knew that someone may have a concealed weapon they would be less likely to commit a violent offence. He said he would try to diffuse the situation in the first instance without revealing the weapon.

17. As to why, in his permit application to carry a concealed weapon of December 2012 he had answered "yes" to the personal history question, the applicant said that there was no room on the form to explain further. He did not believe he actually needed to answer the question in the affirmative because he had not been treated for a psychiatric condition in the previous 12 months - he had not seen Dr Iyer since August 2011. He said that all they would do was talk, and that was not 'treatment'. He thought he did not have to declare his history, but had indicated that he had bipolar disorder because he acknowledged that there was a significant difference between shooting targets on a range and carrying a concealed weapon. He thought the police might want a psychiatrist's report because he was seeking a permit to carry a weapon on the street. He also thought that police might be aware of his psychiatric condition following his failed application to join the Police Force.

CONSIDERATION

1. It is well accepted that any licence in respect of firearms or weapons, 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].

2. Revocation of the applicant's licence, in the present circumstances, is a matter about which the Tribunal may exercise its discretion.

The declarations

1. The information provided by Dr Iyer shows that the applicant had consulted him several times within the previous 12 months of his first three declarations. Dr Iyer had first seen the applicant on 1 July 2010. There had been several reviews, with the last being on 23 August 2011. The first three of his declarations signed in March 2011 (x 2) and April 2012 were all well within the 12 month period specified in the personal history question. There was no adequate explanation for the applicant's failure to disclose those consultations; I reject his submission that psychiatric 'treatment' necessarily requires some greater intervention than 'just talking' as the applicant had characterised his sessions with Dr Iyer. As a result I am satisfied that the applicant provided three false and misleading answers to the personal history question regarding his mental health.

2. Therefore, I am satisfied that the applicant contravened s.70 of the Act in that he made in connection with an application under the Act a statement which he knew to be false or misleading in a material particular.

Public interest

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.

2. The Respondent accepted that the applicant has an unblemished criminal history and, his authorisation for firearms has been without incident.

1. I have taken into account the references provided by the Applicant wherein the referees appear to be aware of the applicant's psychiatric condition and the nature of these proceedings.

2. In his application for the permit lodged 20 December 2012 the applicant provided that his legitimate reason was for the "voluntary provision of defensive actions on [his] part in the event [he is] present when a person commits a criminal act with the use of weapon that when the force continuum, is applied. Potential lethal force is justified." He gave evidence to the same effect. In his application, as well as in his evidence he mentioned a number of scenarios in which he could intervene and which may be preventable if it were known that someone present were armed. The applicant denied however that he intended to act as a vigilante and I accept that he may want to make the community a safer place. However, an Applicant's personal interest in having his licence cannot outweigh the public interest: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [22].

3. In determining whether to exercise available discretion to revoke a licence any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. 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.

4. I would have placed significant weight on the evidence of Dr Ang, however, I think it would be an overstatement to describe Dr Ang as 'the applicant's treating psychiatrist', because it appears that, until the consultation which precipitated his report of 10 February 2014, he had not previously seen the applicant. Dr Ang wrote that he considered the applicant's bipolar condition to be in remission. He recommended 6-monthly visits. He could see no problem with the applicant having his guns returned. He added a caveat though that there should be 'a plan for surveillance in place'. I note that the applicant's licence was revoked because the Respondent came to the view that 6-monthly psychiatric reviews could not be adequately monitored. While no evidence was led to this effect, I accept that such a regime may place an unreasonable burden on the Respondent in circumstances where the most up-to-date evidence as to the applicant's condition is not without reservation.

5. I have placed more weight on the reports of Dr Iyer because by the date of his reports, 8 May 2013, he had had a greater opportunity to assess the applicant. Dr Iyer had treated the applicant several times from July 2010 to August 2011. When Dr Iyer reviewed the applicant in 2013 for the purposes of his reports he had not seen the applicant for about 18 months. It would appear he accepted the applicant's self-reported stability. He was of the view that the applicant was not likely to put public safety at risk if he were in possession of a firearm. He noted, however, that if he were to have a relapse then his behaviour could become impulsive and unpredictable. He noted that there was no history of particular situations triggering his manic episodes. He observed that in his stable mind he is very responsible and highly insightful. If he maintains his present stability, he wrote, it is not likely to affect his ability to carry a firearm in public. He noted that the applicant was taking 100mg of methadone per day.

6. Unlike in AMJ v Commissioner of Police, NSW Police Force [2012] NSW ADT 228 at [45], in this matter the psychiatric evidence is not consistently and over a significant period of time overwhelmingly positive. At best, it is equivocal.

   I accept that the applicant has not had a manic episode for some time and, he claims that he has a grasp of when he is going into a manic phase of his condition. However, during a manic episode he might lose total rational thought. Dr Iyer said he could become impulsive and unpredictable. He is heavily medicated and is addicted to prescription opioids (or their synthetic counterparts). His manic episodes are followed by months of depression. On one occasion he had taken an overdose, in an attempt to gain admission to hospital but without an understanding of the effects of overdosing the combination of medication. While he said that he stops shooting when he when he recognises he is going into manic phase and that he has a disparaging view of those who suicide, I cannot be confident of the possibility of risk to the public or perhaps himself if his firearms licence was reinstated. 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". I cannot be so satisfied.

DECISION

1. The decision under review is affirmed.

   I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

   Registrar

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Amendments

13 May 2014 removed hyperlink references Paragraphs: coversheet