Potts v Commissioner of Police, NSW Police Service

[2010] NSWADT 311

CITATION:	Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311
DIVISION:	General Division
PARTIES:	APPLICANT Darryl Potts RESPONDENT Commissioner of Police, NSW Police Service
FILE NUMBER:	103139
HEARING DATES:	8 September 2010
DATE OF DECISION:	31 December 2010
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Firearms Act - Firearms licence - revocation of licence or permit
LEGISLATION CITED:	Firearms Act 1996 Administrative Decisions Tribunal Act 1997 Mental Health Act 2007 Firearms Regulation 2006
CASES CITED:	Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266 Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 Minister for Immigration and Ethnic Affairs v Pochi [1980] 44 FLR 41 South Western Sydney Area Health Service v Edmonds [2007] NSWCA Ward v Commissioner of Police (2000) NSWADT 28
REPRESENTATION:	APPLICANT In person RESPONDENT J Tillott, agent
ORDERS:	The decision of the Commissioner to revoke Mr Potts firearms licences is set aside.

REASONS FOR DECISION

Background

1 Mr Potts was issued with a category AB firearms licence under the Firearms Act 1996 in May 2008. In February 2009 he was issued with a probationary pistol licence.

2 All his firearms licences were suspended on 30 July 2009 when Police became aware that Mr Potts was the subject of an interim Domestic Violence Order (DVO) issued in the ACT. That DVO was issued following an incident at the home of his former partner on 21 July 2009, which ACT Police attended. When Mr Potts was served with the notice of suspension Police seized his firearms. He cooperated in that process. The firearms were subsequently, at his request, placed in the custody of a local armourer and have since been sold.

3 The interim DVO was subsequently discharged, on 20 August 2009, when Mr Potts signed and agreed to undertakings under the Domestic Violence and Protection Orders Regulation 2009 (ACT) without admission of liability on his part. Mr Potts’s firearms licences remained suspended. On 10 September 2009 he wrote to the Commissioner of Police asking for his firearms licences to be reinstated. He wrote –

If my licence is revoked, particularly working in the ACT, it could seriously affect my ability to obtain police and security clearances to work in many Defence, ACT and Commonwealth government department buildings due to the stigma that may be associated with a revocation of a licence to keep and use firearms. The ability to provide for my Children could be seriously affected. I am not sure that the aggrieved party ( The Missus) realised these implications when reacting to what where only a few choice words to make her aware of my feelings.

She has been for 16 years and will always be safe in my company even though I can have a very cruel tongue at times that can tend to make her; Or anyone feel like crap when I'm annoyed. I think she just wanted me to go away, which I did eventually.

4 The Firearms Registry on 16 September 2009 requested that Mr Potts have a confidential psychiatric assessment before his firearms licences would be reinstated.

5 A sealed letter Mr Potts was asked to give to the assessor said –

Information available to this office indicates Darryl Decourcy Potts has expressed white supremacy (sic) and anti-Islamic views that have raised concerns regarding his mental health.

To enable the Firearms Registry to assess the suitability of the above person to continue to hold a firearm licence, the Registry requires that a report be provided from a Registered Psychologist / Psychiatrist regarding the person's psychiatric / psychological fitness to continue to have access to firearms. When completing this report, particular attention should be given to addressing the issues listed behaviour
With what condition has this patient been diagnosed?
How long have you been treating this patient?
Is this person taking any medication that would have an adverse affect on their alertness? (ie. their ability to drive a motor vehicle or operate machinery)
In your opinion, is there a risk that this person's psychological or psychiatric condition may impact on their ability to exercise continuous or responsible control over firearms?
In your opinion, does this person have the 'ability to form a rational judgment or to exercise will power to control physical acts in accordance with rational judgment' ² ?
In your opinion, does this person's 'mental condition have the potential to put public safety at risk, if that person has the possession or use of a firearm'?

6 Mr Potts arranged for his General Practitioner to refer him for an assessment by Dr Tym, psychiatrist. In the interim he made a freedom of information requests to ACT Mental Health in an effort to understand the concerns. He provided the material he accessed to Dr Tym.

7 Dr Tym’s report was received by the Firearms Registry on 21 January 2010. It said -

I saw him and performed a psychiatric examination on 19/01/10. He had been referred by his general practitioner Dr. Basil Lau. I enclose a copy of the letter from Dr Lau. I enclose a copy of the medical report authorisation signed by Mr. Potts. I enclose various photo copies from Diagnostic and Statistical Manual of Mental Disorders (DSM IV TR).

I read various reports given to me by Mr. Potts.

Amongst many other things he told me "... I regard the law as fools... I do not regard authority as honest... I believe we're moving to war in the Middle East and pretexts are being manufactured... I am a very angry man... "

He told me of his behaviour at the time the incident occurred which gave rise to the Domestic Violence Order delivered to him at work on 22/07/09 and cancelled on 20/08/09.

With reference to the questions posed:

1. In my clinical judgement there is no clinical diagnosis of mental illness but there are minor but significant traits of, but not sufficient traits to justify a full diagnosis of; a personality disorder of Paranoid Personality Disorder DSM IV TR 301.00. His personality is best characterized as Personality Disorder Not 2. Otherwise Specified DSM IV TR 301.9

2. I have seen Mr. Potts on one occasion only for a period of one hour and 10 minutes.

3. By his account he is taking no medication.

4. In my clinical judgement there is a minor but not insignificant risk that this person's psychological condition may impact on his ability to exercise continuous responsible control over firearms.

5. In my clinical judgement this person has a minor but not insignificant degree of impaired ability to form a judgement and to exercise willpower to control physical acts in accordance with rational judgement

6. In my clinical judgement this person's psychological condition has the potential, albeit relatively remote but not insignificantly remote, to put public safety at risk if that person has the possession or use of a firearm.

8 The extract from DSM IV sets out the clinical criteria for a diagnosis of personality disorder, and its various subtypes. It cautions –

Personality traits are enduring patterns of perceiving, relating to, and thinking about the environment and oneself that are exhibited in a wide range of social and personal contexts. Only when personality traits are inflexible and maladaptive and cause sig­nificant functional impairment or subjective distress do they constitute Personality Disorders. The essential feature of a Personality Disorder is an enduring pattern of in­ner experience and behavior that deviates markedly from the expectations of the in­dividual's culture and is manifested in at least two of the following areas: cognition, affectivity, interpersonal functioning, or impulse control (Criterion A). This enduring pattern is inflexible and pervasive across a broad range of personal and social ^- situa­tions (Criterion B) and leads to clinically significant distress or impairment in social, occupational, or ether important areas of functioning (Criterion C). The pattern is sta­ble and of long duration, and its onset can be traced back at least to adolescence or early adulthood (Criterion D). The pattern is not better accounted for as a manifesta­tion or consequence of another mental disorder (Criterion E) and is not due to the di­rect physiological effects of a substance (e.g., a drug of abuse, a medication, exposure to a toxin) or a general medical condition (e.g., head trauma) (Criterion F). Specific di­agnostic criteria are also provided for each of the Personality Disorders included in this section. The items in the criteria sets for each of the specific Personality Disorders are listed in order of decreasing diagnostic importance as measured by relevant data on diagnostic efficiency (when available).

The diagnosis of Personality Disorders requires an evaluation of the individual's long-term patterns of functioning, and the particular personality features must be evident by early adulthood. The personality traits that define these disorders must also be distinguished from characteristics that emerge in response to specific situational stressors or more transient mental states (e.g., Mood or Anxiety Disorders, Substance Intoxication). The clinician should assess the stability of personality traits over time and across different situations. Although a single interview with the person is sometimes sufficient for making the diagnosis, it is often necessary to conduct more than one interview and to space these over time. Assessment can also be complicated by the fact that the characteristics that define a Personality Disorder may not be considered problematic by the individual (i.e., the traits are often ego-syntonic). To help overcome this difficulty, supplementary information from other informants may be helpful.

9 Following receipt of Dr Tym’s report a decision was made to revoke Mr Potts’s firearms licences. He was advised of this by a notice posted on 11 February 2010. The notice advised that his firearms licence were revoked on public interest grounds because Dr Tym had advised that:

- Mr Potts has minor but significant traits of a paranoid personality disorder.
- There is a minor but significant risk that your psychological condition may impact on your ability to exercise continuous control over firearms.
- Mr Potts has a minor but not insignificant degree of impaired ability to form a judgment and to exercise willpower to control physical acts.

10 On 2 March 2010 Mr Potts sought an internal review of the decision to revoke his firearms licences. There followed correspondence in which Mr Potts sought details of the questions Dr Tym had been asked to answer, and queried the basis on which the Firearms Registry had concluded he had has expressed white supremacy (sic) and anti-Islamic view. He sought, and was granted, extensions of time. In that correspondence Mr Potts was highly critical and contemptuous of the Firearms Registry. He made submissions acknowledging that there are those with whom he is in “political/religious disagreement,” but argued that those views could not, as matter of law, indicate that he has a mental illness or disorder.

11 Section 6(a) and (b) Mental Health Act 2007 provides-

(1) A person is not a mentally ill person or a mentally disordered person merely because of any one or more of the following:
(a) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular political opinion or belief,
(b) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular religious opinion or belief,
…

12 On 10 June 2010, before the internal review was completed, Mr Potts filed an application for review of the decision to revoke his firearms licences in this Tribunal, and sought to stay the making of a decision on internal review.

13 The stay application was struck out by the President on 15 June 2010, and the requirement for internal review was waived, by consent, under s 55(3) of the Administrative Decisions Tribunal Act 1997. Directions were made with respect to the filing of materials. The review application was listed for hearing at Queanbeyan on 8 September 2010.

14 At that hearing sworn evidence was heard from two ACT Police officers regarding the incident at the home of Mr Potts’s former partner on 21 July 2009, and from Mr Potts.

15 Mr Potts acknowledged that he holds unorthodox views with respect to political and religious role of the Judaism, the nature of the Holocaust, and those responsible for the events of September 11, 2001. The Commissioner described them as “extreme.” Many would find them offensive.

16 The Commissioner made it clear that Mr Potts’s views were not the basis for the public interest revocation of his firearms licences: the issue is what those view say about his mental state. The Commissioner argued that the revocation was justified in the public interest on the basis of concerns arising from Mr Potts’s behaviour at his former partner’s home on 21 July 2009, his attitude towards those in authority, alleged threats made with respect to his children, and as a result of Dr Tym’s report.

17 Section 24(2) of the Firearms Act 1996 provides –

(2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or
(d) for any other reason prescribed by the regulations.

18 Clause 19 of the Firearms Regulation 2006 then provides –

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.

19 Public interest is not defined in the Act or the Regulation. In Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9, a case concerning similar provisions under the Security Industry Act the Appeal Panel said, at [25], that the public interest is –

"... an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual."

20 The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the [decision-maker's] consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals: Director of Public Prosecutions v Smith (1991) 1 VR 63.

21 The discretion to issue or revoke a licence must be exercised having regard to the licensed activities. Thus, the objects and purposes of the Act are relevant. In Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266 at [21] the Tribunal said:

"The objects and principles of the Act state that firearms are a privilege and inherent in the requirements is that persons who have access to firearms must act responsibly. Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. The principle issue then is whether there is a risk to the safety of the public if Mr Aubrey retains the licence."

22 In Ward v Commissioner of Police (2000) NSWADT 28 the Tribunal said, at [27-28] –

27 One of the objects of the Act, as set out in s 3, is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." In determining whether Mr Ward is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.

The Events of 21 July 2009

23 On the night of 21 July 2009 Police attended at the home of Mr Potts’ former partner, following receipt of a compliant that he was banging on the door and refusing to leave. I heard evidence from the two police officers, Constables Young and Lawler. In reality, apart from their descriptions of Mr Potts’s demeanour and presentation at that time, there is not a great deal of difference between their respective views of what occurred.

24 The Police evidence was that when they arrived Mr Potts appeared, agitated and was pacing and had his fists clenched. Mr Potts disagreed. He acknowledged that he was anxious but denied pacing or having his fists clenched. There was no record of his demeanour in their notes.

25 There was agreement that Mr Potts initially refused to give his name to Police, when requested. He did when directed to do so. Constable Young told me that there is no requirement under ACT law for members of the public to give their names to Police, unless formally directed to do so.

26 There then ensued a period of conversation in which the officers attempted to persuade Mr Potts to leave. In the course of this they both said that he made reference to a Jewish conspiracy and that he was concerned that his children were interacting with members of the Jewish community. Constable Young said that Mr Potts was uncooperative, and that he found Mr Potts hard to gauge. He did not impress with the usual presentation of a man in such circumstances, and try to justify his conduct. “He kept jumping off topic and speaking about the Jewish people.” Constable Lawler said that this conversation went on for about five minutes, and that they then directed Mr Potts to leave. He did so. His impression was that Mr Potts had no respect for authority. After he left they advised his former partner to obtain a DVO.

27 Mr Potts agreed that he had given his name and left when required to do so. He could not recall any section or regulation being cited as part of direction. He agreed that he had been contemptuous of the Police, explaining that he did not accept that they had the moral authority to lecture him about moral matters.

28 Mr Potts told me that he had separated from his former partner more than two years before this incident. He had left the relationship as, “I wanted to be out and looking from outside and re-group my thoughts based on the knowledge that I gained from reading books and making other observations so that’s why I left.” Formal property settlement arrangements had been made with him transferring the whole of his interest in their home to her. In the period leading up to the 21 July 2009 incident, he had been experiencing problems with his access to the children. He was also concerned about whom they were mixing with. His partner had said he would have to accept who she introduced the children to. At this point, the following interchange took place between Mr Potts and myself –

Q. Sorry your wife said this to you?
A. Yeah she’s virtually saying that I’ve met someone else and you’re going to have to accept that fact and you can bugger off, however I was meant to take that and in light of me transferring that and placing a lot of trust in her, I believed it had gone, it had turned physical which for me meant there’d be no going back because I’ve been faithful, I’ve been celibate since I left because - that’s not the reasons I left, I don’t leave one woman for another woman so from then on I regretted having ever made the transfer because there’s no way I was ever going to permit her living with someone else, some other clown and my children and him bludging off my investments and the money I’d earned to purchase that house and that coupled with the children that “I don’t want to go to court, I don’t like being in court, I didn’t want to take it through the Family Court and all the angst that that would cause and that’s written in documents that the police have access to, should they choose to present it and if they go to the Family Court and get those documents because I tried to have the undertakings that we entered into the after the DVO lifted so that we can discuss the issues at hand but that’s been denied. So to escalate things and prevent - and essentially this guy had no honour or decency, I’ve never met him, he didn’t even have the courtesy to come up to me and say “I’d like to go out with your wife, have things settled with you?” and I’m told by many people that they’re going to say that so he didn’t even view my needs as being important as well so I purposely precipitated that issue with a sit in. Now I wasn’t happy that the cops were there is understandable but of course I deny the clenching of the fists business and in fact the cops notebook speak for itself, it’s very important now but it wasn’t important then, it wasn’t important for them to write that down in their notebooks so that’s why I asked that question. So I precipitated it on purpose as a method of me voicing my frustration that I didn’t want to go to the Court and it’s not going to court but neither is this clown ever going to bludge off my assets unless we come to an amicable financial settlement.

Now let’s back track from the incident, after she had met this guy once I rolled up and she was out there crying on the balcony that she didn’t want to have a blended family with another father you know to replace me and I just said “well it’s too late now isn’t it, the deeds been done”. So that’s the reason I precipitated the incident and now we’ll go on to why I babble onto police about the Jewish question. It’s because in the US the Jewish establishment--

Q. Well first, what did you say to the police about it, do you agree with what they’ve said--
A. No the Holocaust I’ve never said and if I can be bothered calling the old man up and he knows my--

Q. What did you say to the police?
A. I said “the Holocaust number six million” I can’t remember exactly what I said. When I speak about the Holocaust I say the six million is probably a load of hogwash, based on the reality that the number six is very important in their religion, the Star of David has got a six pointed star, they wear a hexahedron, you a know a cube, which is a three dimensional element as part of head gear, the Orthodox one so six is a number so - and the number six million has been prophesized in the past as being a precursor to the creation of Israel for centuries so that’s the extent, never ever do I ever advocate the genocide of anyone or the killing of anyone.

Q. Can I just ask you very simply, do you recall saying to the police anything about the Holocaust?
A. Yes probably that. Now with regard to the Jewish establishment part, there’s been some interaction with my family by then but we don’t need to go into it and I’m not going to go into it because it doesn’t serve the point of anyone. So - as I was saying earlier in the US the police are educated by a branch of the Jewish establishment as to what constitutes hate laws because hate laws are very big in the US okay and they’re growing here and virtually it’s becoming so tenuous in the United States that anything that doesn’t or isn’t in agreeance to the status quo is it’s starting to become defined as hate, that’s the way I look at it anyway. So that’s the reason, I test the police to see how they react to this and that’s probably the reason and you will mention that there is evidence where I have mentioned that my home has been visited by members of a farm state and that’s probably true, it can be proven by me, I can call witnesses as well but that’s irrelevant to this operation or this court appearance. Anyway so I rolled up the house, sat, I was knocking on the door because I wanted to talk to [her] because I was frustrated that she was using these undertakings, not to discuss matters that were important to me regarding a financial settlement and also--

29 He denied repeatedly banging on the door of his former partner’s home. He said he had knocked, and then tapped on the window while chatting with the kids through the window, until the curtains were drawn. He said that he knew that his conduct on that night would result in problems with his firearms licences.

30 In the course of the Police investigation following that incident it was alleged Mr Potts had said words to the effect of, “You should be worried maybe the children might be in danger. I’m not right in the head, so the kids might be in danger.” Police were also told that he had become obsessed with conspiracy theories since September 11.

31 This information resulted in a referral to ACT Mental Health. Mr Potts has obtained their records under FOI. The referral resulted in no mental health follow up.

32 When asked about this allegation in his evidence Mr Potts said:

Yeah well that’s third hand, that’s probably, I’ve never ever said the kids would be in danger, I said “if you want to we can accuse myself” I never said that I’d harm my kids, I said “either you or or I could make an accusation completely different thing here. So never ever have I threatened my kids or anyone else’s. That is an utter utter third hand, you know it’s come from [his partner], whether she said that or not I don’t know, and then the police officers has either not cared one iota what goes in there, and put that in there. And this is what I say is the danger, when nothing can be verified, is that the coppers put that stuff in there, they walk away and go to their next job, who cares. I don’t care because it doesn’t worry me anymore, but of course people like me have to live with it and this is what I said to the Mental Health person, so that obviously got up my missus nose and nothing then, I just drove off, she said “well you’re not having the kids tonight” and I took off. But I don’t get very angry with her and I don’t get very angry with anyone else.

Dr Tym’s Evidence

33 I have already set out the questions Dr Tym was asked to consider by the Firearms Registry and his report. In his evidence he confirmed that he also had the mental health records which Mr Potts had obtained under Freedom of Information.

34 Dr Tym told the Tribunal that Mr Potts has a diagnosis, “if you call it a diagnosis of the personality disorder not otherwise specified”. There was no evidence that he suffered from any other mental illness. He said that by referring to a “not insignificant” risk, he meant significant. He made reference to fact that Mr Potts had been reported as threatening his children, as a factor that led him to be apprehensive about Mr Potts holding a firearms licence.

35 Mr Potts took issue with the doctor’s attribution to him of the words “I am a very angry man.” When questioned about this Dr Tym said that his notes recorded Mr Potts saying “I am very angry” but did not record the context in which those words were said. Mr Potts denied the use of the word “angry.”

36 In response to questions from me Dr Tym said that Mr Potts’ alleged threats to his children were a “significant factor” leading to the concerns he expressed in his report. When asked if his view would change, were he told that there was no evidence that Mr Potts had threatened his children he said –

Well that goes for all the evidence that I was given, if I found that all the evidence I was given was incorrect obviously my view would change. It depends on the evidence that’s available, but I can’t take one small piece of evidence and assume that that’s the only evidence that would make me change my overall view.

37 When asked to explain what be meant by a minor but not insignificant risk, the following interchange took place –

A. I don’t think he’s a raving lunatic running around with a gun likely to shoot anybody, but on the other hand there’s some indication that he can have some outbursts of temper and if in certain circumstances and those circumstances would include that he had a gun in his presence and that same time the presence of people who were causing him to be very angry, then there would be a not insignificant or a minor risk but nevertheless a risk that he might use the gun to harm them.

Q. So the other thing I wanted to ask you is, that you provide us with copies of the extracts from the DSM 4 or the DSM 5, I’m not sure which one. It’s DCM 4?
A. Yes.

Q. Did you take a history from Mr Potts consistent with the suggestion that he has a personality disorder not otherwise specified going back to his early adulthood or is this just based on his presentation to you and the documents?
A. Well I took a full history, I can’t remember exactly details of the history but it was mostly about his response to the DVO taken out I think on 21 July 2009.

Q. And did you discuss with Mr Potts his views that have been characterised as anti-Semitic?
A. I didn’t pursue whether he was anti-Semitic or not, I don’t think it would be particularly relevant.

Consideration

38 There is no doubt that Mr Potts holds political and religious view that can be fairly categorised as highly unusual, if not extreme, and would be regarded by many in the community as offensive and racist. He is, however, a man who has no convictions for offences and whose past demonstrates that he is a law-abiding, hard working member of the community. There is no evidence that he has ever used violence, or advocated its use in pursuit of his religious or political objectives. Similarly, there is no suggestion that, as the holder of firearms licence, he has ever used his weapons inappropriately, failed to store them as required, or otherwise breached the responsibilities which the privilege of a firearms licence carries with it.

39 It is apparent that Mr Potts is an intelligent man with his own idiosyncratic views, and little tolerance or respect for those in authority, especially if they give him reason to doubt their ability and competence. He said that he respects laws (as his history would appear to justify) but has little respect for its functionaries. His evidence was that his comments to Constables Young and Lawler about conspiracies and the Jewish hierarchy were said, deliberately, to gauge their reactions. He deliberately escalated the conflict with his wife to the point where Police were called, and then pushed the boundaries with them as far as he could go without being arrested. He described his actions as “recalcitrant”.

40 His correspondence with the Firearms Registry concerning the revocation decision reveals his contempt for the view they expressed to Dr Tym that Mr Potts had expressed white supremacist and anti-Islamic views. There was no evidence to justify that conclusion. Mr Potts was scathing in his resultant commentary. He was equally scathing in his criticism of Dr Tym’s conclusions.

41 In his presentation to the Tribunal Mr Potts was equally willing to test the boundaries. From the commencement of the hearing he told me that he didn’t really care about his firearms licence ,but was pressing on with his appeal in order to prove a point. His principal point was that his political views do not lead to the conclusion that he has a mental illness. During the hearing the following interchange took place between Mr Potts and myself –

Q. So your motivation for going to your wife’s - to the house was to escalate it with your wife. Your motivation for saying - making the comments about the power of the Jewish hierarchy was to see, was to test their reactions?
A. Yeah just to see what they knew I suppose and play the fool I suppose, I don’t know why.

Q. Do you think that some of your escalations explode in your face?
A. No because I’m getting my political point across in the Court now. I know it’s grandiose and deluded and everything but this is on record and it might - it doesn’t explode in my face because I’m achieving what I wanted to achieve. I don’t particularly care about the guns, you can take them off me, but the reality is that--

Q. Well they’re gone anyway aren’t they?
A. They are, yeah, yeah I know and I don’t particularly need them and as I said I don’t sit there polishing them like some redneck.

Q. I just want to make sure I’ve got my understanding of what you say right?
A. Yeah.

…

Q. Am I correct in my understanding that that’s why those comments were made?
A. Yeah that’s pretty--

Q. It wasn’t really about any - it was about trying to get a reaction from the police?
A. Yeah just to see what they reckon and assess the situation. I’m an undercover agent.

Q. Are you? Who for?
A. No, I’m just being--

Q. Facetious?
A. Yeah it's just - I just find the whole situation quite ludicrous.

Q. Yes but you see ultimately this comes down to my having to decide on the evidence before me whether allowing you to hold a firearm’s licence?
A. Mm-hmm.

Q. Is not in the public interest and the public interest is a very broad spectrum of things?
A. Yeah.

42 From all of this I concluded that Mr Potts is an intelligent, manipulative and calculating man. He is willing to push and provoke those in authority in order to gauge their reactions, and to challenge what he perceives as stupidity and hypocrisy on their part, but not so as to place himself in any unacceptable (to him) jeopardy. Thus, he expected to have his firearms licences interfered with as a result of his decision to “escalate” his tensions with his former partner, just as he expected the police to be called. Both were expected consequences of the game he chose to play. Similarly, he made comments about the Jewish hierarchy to test the Constables, but did not push them to the point where they could arrest him.

43 His behaviour is not, however, the only issue on upon which the Commissioner relies. There is also Dr Tym’s report and the threat Mr Potts is alleged to have made to the safety of his children. With respect to the latter it is no more than unattributed hearsay. Mr Potts strongly denies ever threatening his children. In the absence of clear evidence to the contrary I accept his denials.

44 During the hearing I raised with Ms Tillott a number of concerns I had with respect to the weight I should give to Dr Tym’s report. These related to whether or not his report contained sufficient details and reasoning for the Tribunal to give the expert opinion he expressed any weight. While Dr Tym had expressed his opinion, and by annexing the extracts from the DSM 4 has set out the criteria he applied in reaching those conclusions, he had not outlined any of the history he had taken or his understanding of the facts he applied to the criteria in order to reach his opinion.

45 In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 McColl JA said, in the context of an appeal against a decision of the Workers Compensation Commission (in which, as in this Tribunal, the rules of evidence do not apply) –

130 In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that “[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it ”. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
“… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.”

…

133 … the question whether expert evidence relied upon by a party is probative of a matter in issue is determined in accordance with legal principle and is susceptible to review on appeal in accordance with the principles which govern appellate review of findings of fact: see generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.

…
135 It was, therefore, incumbent on the Deputy President to consider the appellant’s no evidence submission to determine whether it was “logical and probative” as required by r 70. There having been no objection to the admissibility of Dr Rivett’s report, the question for the Arbitrator and the Deputy President was its weight, especially whether it went beyond “a bare ipse dixit ”: Makita (Australia) Pty Limited v Sprowles (at [86] – [87]).

46 This Tribunal “is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice:” s. 73(2) Administrative Decision Tribunal Act 1997. While armed with the procedural flexibility vested in it by s 73, the Tribunal is none the less required make its finding based on “logically probative material” and “not on mere suspicion or speculation:” Minister for Immigration and Ethnic Affairs v Pochi [1980] 44 FLR 41 at 67 per Deane J.

47 . The Commissioner submitted that the requirements of an expert report set out in South Western Sydney Area Health Service v Edmonds were satisfied in that Dr Tym had taken a full history, had considerable material available to him, and had provided his opinion. She also made the point that report was provided for the purposes of the Firearms Registry, not a Tribunal hearing.

48 I not accept that Dr Tym’s report complies with the basic requirements necessary for his opinion to be given any weight. It is important to note that DSM IV requires that six criteria be satisfied before a diagnosis of personality disorder can be made. In his report Dr Tym has not address how any of those criteria are satisfied. While he did tell me he had taken a history from Mr Potts, that history is not disclosed in his report. In its absence, and in the absence of any explanation as to how Mr Potts satisfied the DSM IV criteria, I consider Dr Tym’s diagnosis a bare ipse dixit.

49 Further, Dr Tym acknowledged that the threat, which the records showed Mr Potts making towards the safety of his children, was a “significant factor” in the formation of his opinion. As I am not satisfied that Mr Potts made those threats, his assessment, insofar as it was based on acceptance of those allegations, is undermined.

50 The fact that Dr Tym’s opinion was made for the purposes of the Firearms Registry does not alter my opinion. Administrators making decisions affecting person’s rights should scrutinise expert opinions upon which they rely to ensure they are logically probative. The Tribunal is required to do so on review.

51 As a consequence I conclude that Dr Tym’s report should be given no weight.

52 Having reached that conclusion I turn to consider whether Mr Potts’s firearms licence should be revoked in the public interest. This question has troubled me. Mr Potts holds views which are offensive to many. He has a propensity to “test the dragon” of authority in order to provoke and test responses, yet he is by all other measures a law-abiding member of the community and of apparent good character.

53 The fact that he holds political and religious views and opinions that are offensive is not, in my opinion, sufficient to find that the public interest requires that he no longer hold a firearms licence. To do so would be to embark on a slippery slope towards rights and privileges being granted to those who hold approved opinions, and to give significant power to those who determine what those approved powers are. This is the road to totalitarianism. The position would be different if there was any evidence that Mr Potts has advocated or attempted to use force in order to advance his views. There is no such evidence.

54 Mr Potts calculated provocation of those in authority is the matter which has concerned me. Ms Tillott submitted that, in the light of his propensity to test the dragon, I could not be satisfied that Mr Potts would co-operate as required with Firearms Registry with respect to his firearms licence and exercise the responsibilities required of a firearms licensee. Ms Tillott submitted that I should conclude that Mr Potts has little insight into to consequences of his provocative behaviour, and that he displays poor judgement. I do not accept this. In my view the evidence show that Mr Potts makes some very calculated judgments and goes as far as he can without overstepping the legal boundaries, while being aware of the likely consequences

55 .The issue for the Tribunal is whether it is contrary to the public interest for Mr Potts to hold his firearms licences as a consequence. I think that, whether he holds a firearms licence or not, Mr Potts will continue to test the dragon. If he does not hold a firearms licence, the Firearms Registry may not be the subject of that testing. That, however, is not the test.

56 There is, my view, no evidence that Mr Potts poses a risk to the public if he is allowed to continue to have a firearms licence.

57 As a result I conclude that the public interest does not require that his firearms licences be revoked.

58 The decision of the Commissioner to revoke Mr Potts firearms licences is set aside.