Museth v Commissioner of Police, NSW Police Force

[2014] NSWCATAD 98

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Museth v Commissioner of Police, NSW Police Force [2014] NSWCATAD 98
Hearing dates:	23 June 2014
Decision date:	15 July 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Naida Isenberg, Senior member
Decision:	The decisions under review are affirmed
Catchwords:	Firearms licence and revocation of Firearms licence - - public interest
Legislation Cited:	Administrative Decisions Review Act 1997 Firearms Act 1996
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 9 Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 LY v Commissioner of Police, NSW Police [2004] NSWADT 115
Category:	Principal judgment
Parties:	Michael Museth (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	M Museth (Applicant in person) Minter Ellison (Respondent)
File Number(s):	1410080

reasons for decision

Background

1. The applicant, Michael Museth held a Category AB firearms licence, which was revoked on 18 September 2013. That decision was affirmed on internal review. The applicant seeks review by this Tribunal of the decision to revoke the Applicant's category AB firearms licence.

1. On 4 December 2013 the Applicant applied for a new Category AB firearms licence. This application was refused by the Respondent on 25 February 2014. No internal review of that decision was conducted but it was clear from the application for review that the applicant sought review of that decision also. The Tribunal decided under s.55(4) of the Administrative Decisions Review Act 1997 to deal with the application in order to protect the applicant's interests.

The Law

1. 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) ...

1. Section 11(4) provides that a licence must not be issued if the Commissioner (or the Tribunal on review) has reasonable cause to believe the Applicant may not personally exercise continuous and responsible control over firearms because of the Applicant's way of living or domestic circumstances.

1. Section 11(7) provides that a licence application may be refused if the Commissioner (or Tribunal on review) considers that the issue of a licence would be contrary to the public interest.

1. Section 24(2)(a) of the Act 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. A licence may be revoked if the Commissioner (and Tribunal on review) is satisfied that it is not in the public interest for the licensee to continue to hold the licence: s. 24(2)(b)(ii) and s.24(2)(d) of the Act 1996 and cl.19 Firearms Regulation 2006.

1. 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.

CONSIDERATION

1. In addition to the s.58 documents, I had before me the applicant's detailed submissions. He also gave extensive evidence.

Domestic circumstances

1. The applicant and his wife have had a long history of domestic incidents during the period they were married, as evidenced by the Respondent's police records. For example, police were called to their home in June 2008 at the request of the Applicant. Police again attended in October 2009 due to a verbal disturbance. The Applicant reported being the victim of domestic violence in December 2009. His wife made allegations of sexual assault but did not want the Police to investigate. The Applicant's mother reportedly said at the time that her son 'is a very angry man who has been seeing a psychologist for his issues'.

1. When police intervened the applicant and his wife usually disagreed as to what had transpired. AVOs were issued, including against the Applicant, although at the hearing the applicant denied every having been aggressive towards his wife. As a result, as is police policy, his firearms licence was suspended on several occasions.

1. Relations did not improve after the applicant and his wife separated in about 2010. The Applicant reported to Police in June 2012 that his wife was threatening to take the children to live in China. In July 2012 police attended her residence at her request because of a verbal disagreement with the Applicant regarding custody of children. In December 2012 the Applicant complained to police about his wife, claiming that she had assaulted him. In January 2013 the Applicant obtained an interim AVO against his wife. The applicant alleged his wife had become increasingly aggressive as she aged. The Applicant also alleged she had stolen some of his belongings.

1. In March 2013 the Applicant made an allegation of fraud against his wife regarding the forging of his signature on the children's passport applications. The allegation was found to be unsubstantiated when the Applicant's accountant, who had witnessed the applicant's signature swore that to be the case. Further, the Australian Passport Office had the applications forensically examined and determined that the Applicant had signed the children's passport applications. The police considered that in making this complaint, the Applicant had blatantly lied.

1. In April 2013 the Applicant reported a phone argument between himself and his wife to the Police, but following enquiries, no action was taken. Another report was made by his wife as late as November 2013.

1. In his evidence the applicant alleged that only a month ago his wife sat in her vehicle up the road from his home and watched until the lights went out.

1. The applicant claimed to have nothing to do with his wife, although they are necessarily bound by their sons. The applicant has care of the boys for an extended weekend in every two. Handovers occur at the school, or if during school holidays, at the police station. Dealings in relation to their education are facilitated by school authorities. He denied he had a grudge against his wife. He said he had 'moved on' and was in fact dating again.

1. It was clear to me that there has been, and remains, considerable animosity between the applicant and his wife, notwithstanding that in his evidence he sought to describe there having been only 'a bit of trouble' with his wife. He has been persistent in making allegations against her, as, it seems, she has against him. Both apparently considered obtaining AVOs against the other may enhance their custody claims. At the hearing the applicant gave fervent evidence about bringing up his boys and wanting additional custody. It was clear to me that, even by the time of the hearing, the custody issues and the resulting tension, had not been resolved.

1. In his submissions the applicant claimed the police had sided with his wife, that he had been defamed by the police, and victimised. I found no evidence to support these submissions.

1. Notwithstanding that the Applicant has held a firearms licence since he was about 16, that he does not have any criminal convictions and has never come to notice for misuse of firearms, the Respondent submitted that, due to the protracted nature of domestic disturbances between the Applicant and his wife, there is reasonable cause to believe that the Applicant may not be able to exercise continuous and responsible control over his firearms. It is necessary to show objectively that there is a reasonable cause for that belief: LY v Commissioner of Police, NSW Police [2004] NSWADT 115.

1. I am satisfied that the applicant's ongoing behavior towards his wife, involving numerous police complaints, lies, and physical and verbal abuse, objectively demonstrates a legitimate concern that the Applicant may not be able to exercise continuous and responsible control over firearms because of the his way of living or domestic circumstances: s.1(4)(a) of the Act. I observe that firearms are often involved in domestic disputes: Fielden and Fielden v The Commissioner of Police [2000] NSWADT 156 at [56].

Public interest

1. The reinstatement of the applicant's firearms licence would be contrary to the public interest if there is a risk to public safety, including the safety of the Applicant: s. 5A of the Act and cl.19 of the Regulation. (See Commissioner of Police v Toleafoa [1999] NSW ADTAP 9 at [25]).

The Applicant has been involved in an ongoing dispute with an insurance company regarding workers compensation in relation to an accident that occurred in 2009. To compound his concerns he has had at least one other injury and there is dispute between insurers as to liability with respect to his ongoing physical problems. He described his back as having been 'broken, twice' although from the available medical evidence this would appear to be an exaggeration of his condition.

He said that whenever he gets a job the insurance company rings up his employer and asks how his back is going and as a consequence he is dismissed. This would seem to be contrary to the interests of an insurer, and in my view it is unlikely that, on the basis of such an enquiry alone, the applicant's services would be terminated, unless of course, he had not disclosed his back condition. He thought a co-worker must be spying on him. He repeatedly alleged corruption and wrongdoing by the insurer. He claimed his life had been ruined by the actions of the insurer, as had that of his wife and his children. The insurance company had used 'dirty tricks'.

1. From his evidence and his submissions it was clear to me that he holds significant animosity towards the insurer. In particular, his letter to the insurer dated 8 August 2013 raised concerns as to his mental health, especially in relation to anger issues. There, he wrote to the Operations Manager and CEO of the insurer promising he would never give up or would die doing so. He accused the company's staff of wrong doing and deliberately causing harm to him and causing disharmony in his family resulting in divorce. He described a staff member as being a 'lying bitch' who he believed told his wife, falsely, that she was having an affair with him. He described the tactics of the insurer as being akin to those of the Gestapo and that the behaviour of the company was of a type that 'starts wars'. Someone had acted 'like a mongrel and [he claimed he] had no hesitation in telling him so'. In his submissions he said there was no evidence that he would shoot the insurance people, because he did not even know who they were. His interest is in exposing the insurance company and he will 'bring down powerful people' in the fight for his children. He believed the insurance company is 'using' the police. I am not prepared to accept that the views expressed by the applicant were mere hyperbole.

1. It appeared to me from his evidence and his submissions that the applicant lacks insight into aspects of his conduct which might give rise to mental health issues which may affect his licence. For example, in his submissions dated 17 October 2013 the Applicant stated that 'Inspector Attalla can fill you in about an altercation we had which was settled as men do and is forgotten regarding the guns'. He also said in relation to his comments that 'it is a free country and if [he chose] words [which] could be regarded as aggressive, ... with [his] bad luck [he] might get killed if cars keep running into [him] the way they have'.

He said that he took steps to remove his guns by giving them to his brother-in-law when he realized he was becoming addicted to Panadeine forte, and considered this to be the responsible thing to do. The Panadeine forte had not been prescribed and he obtained packets illegally. He claimed not to know what it was and had at first taken it for headaches. His GP told him it was dangerous so he stopped taking it. He said he brought to the attention of the pharmacy and also 'Workers Comp' that it was a potentially dangerous drug. He said in relation to his addiction that he is trying to manage the pain better without drugs which can affect behaviour.

His gun safe is located at this mother's farm. He said he told his members of parliament what he was going through. 'This is not the actions of a terrorist but a citizen screaming for help'.

In his submissions dated 12 May 2014, in which the Applicant noted that 'someone in the Workers comp scheme rang in their own time to say I might hurt myself or selfharm which is a blatant lie'

In his evidence he referred to there having been a 'violation of [his] human rights' but it was unclear precisely to what he referred in this regard. There was nothing in the evidence that suggested to me, even on the broadest sense of that term, that his human rights could be said to have been violated.

In August 2013 the Applicant provided police with a number of documents relating to his workers compensation claim which referred to his mental health.

1. Dr J Davis, Consultant in Occupational Medicine, in his report dated 15 July 2010, noted that the Applicant had developed a significant Adjustment to Injury Disorder with anxiety and depression. The Applicant's depression increased his perception of his physical symptoms.

1. In his report dated 16 January 2013, Dr P Kalogiannis, Clinical Psychologist, wrote that the Applicant presented with sadness, anger, severe agitation, irritability, worrying, guilt, indecision, sense of failure and ruminating thoughts. He diagnosed the applicant as suffering from 'Major Depression with some psychotic features'. He considered the prognosis to be 'very bleak without medical and psychological treatment'. He recommended the applicant be reviewed by a consultant psychiatrist to assess his suitability for commencing medication. No review was undertaken. The applicant said, in effect, that he had remonstrated with Dr Kalogiannis, who, he thought just wanted to make money out of him. As to the diagnosis he said it was just 'his [the doctor's] opinion'. He thought he dealt with stress by 'taking it on the chin' and having a beer. He said Dr Kalogiannis wanted to talk about his other cases and how he, the doctor, dealt with stress.

In his report dated 8 May 2013 Dr G George, Psychiatrist, wrote that the Applicant presented with 'a mixed personality disorder, exhibiting both borderline and histrionic traits'. He took a history of domestic violence which contributed to the breakdown of the applicant's relationship with his former wife. He noted that the breakdown of the marriage was acrimonious. In the course of the session the Applicant made derogatory comments about his ex-wife, including that she manipulated child support by submitting a false diary and had attempted to abduct his children and take them to China. The doctor considered the breakdown of the Applicant's marriage, the associated domestic violence and ongoing custody issues significantly contributed to his symptoms. He found the Applicant's psychological symptoms and/or behaviour to be unusual or different when compared to what would be expected in the broader community. The applicant, in his evidence, said that Dr George was 'influenced' by the insurance company.

1. Most recently, the Applicant's mental health was reviewed by Dr C Kafataris, Injury Management Consultant, in his report dated 19 April 2014. The Applicant presented as being somewhat angry at the perceived ill-treatment by the insurer. The applicant regarded Dr Kafataris (and also Dr George) as being 'controlled' by the insurers.

The applicant claimed to be no risk to the community because there had been no poor behaviour in the past and that he had held a number of responsible jobs. From the extensive list of employers the applicant referred to both in his written submissions and in his evidence, it appears that, for whatever reason, those jobs have not endured.

1. The Respondent submitted that the stresses caused by the ongoing dispute with the insurer, the Applicant's ongoing pain management and the breakdown of the Applicant's marriage have caused or contributed to him having ongoing mental health issues. In light of the Applicant's unstable mental health, the Respondent submitted, it is not in the public interest for the Applicant to have a firearms licence.

1. The medical evidence was of a psychiatric condition, for which the prognosis was poor. I observe that the applicant was referred to Dr Kalogiannis by the applicant's GP, Dr Foong, for treatment. His report therefore weighs heavily in an assessment of the applicant's mental health. It is useful to note that even Dr George, the consultant psychiatrist engaged by the insurer, diagnoses a psychiatric condition. If influenced by the insurer, as the applicant claimed, it is unlikely that he would have found a psychiatric condition if there had been no relevant symptoms and signs, thus making a diagnosis of a condition which would be adverse to the insurer's interests.

1. From my own observation of the applicant at the hearing and his voluminous submissions, the Applicant appears to have some mental health issues. In his evidence he was persistent, repetitive and seemed to have an inability to listen to others. He was adamant that he needed to supply a report from his GP to the effect that he was not suicidal. I assured him that there was no evidence suggesting he was suicidal, although he was depressed.

1. In summary, the weight of the medical evidence did not suggest a level-headedness which I would associate with someone holding a firearms licence.

Conclusion

1. One of the applicant's submissions was that future employment and volunteering opportunities, including obtaining a security licence would be jeopardized if his licence were not reinstated. He claimed he would never be able to work at Australian Defence Industries again, but as he had last worked there over 20 years ago, I place no weight on this contention. There was no evidence that the applicant has lost or is likely to lose any work or other opportunities, nor that he had taken any steps to obtain a security licence. He claimed to be waiting until his medical condition has stabilised, but in my view, if the severity of his back condition is as he claimed, such an outcome is unlikely. Further, the rehabilitation report prepared by Nathan Smith, Provisional Psychologist dated 17 October 2012, in which the Applicant's rehabilitation and potential job prospects were discussed, made no mention of the Applicant's intention to apply for a security licence. The applicant claimed to have worked in the security industry previously - in Myer as a store detective in about 1993, now some 20 years ago.

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. The Applicant also claimed he would be prevented from supplementing his diet with wild meat caught by using his firearms and teaching his sons how to hunt when they are old enough. At the hearing the applicant said though that he was doubtful that he would be able to hunt again as he had in the past because of the severity of his back condition and his rotator cuff syndrome.

1. It is well accepted that any licence in respect of firearms or weapons, is a privilege and not a right. The Applicant's desire to pursue a particular sport, or to maximise possible future careers options does not outweigh the need for public safety: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [22].

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. There is evidence of an ongoing volatile relationship with his ex-wife. There was evidence of each making threats, although it may some of the applicant's conduct was precipitated by actions of his ex-wife, as the Applicant claims. I cannot be assured the Applicant would not use a firearm when provoked. Neither can I be assured that the applicant, in furtherance of his insurance claim would not take matters into his own hands, given his high level of anxiety about his perceived misconduct of the insurer. 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.

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

Registrar

Decision last updated: 17 July 2014