Saba v Commissioner of Police, New South Wales Police Force

[2014] NSWCATAD 129

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Saba v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 129
Hearing dates:	15th April 2014
Decision date:	05 September 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	Commissioner's decision affirmed
Catchwords:	Refusal of firearms licence, not of unsound mind, not in the public interest
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Criminal Records Act 1991 Firearms Act 1996.
Cases Cited:	Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Commissioner of Police vs Toleafoa [1999] NSW ADTAP 9 Constantin v Commissioner of Police NSW Police Force [2012] NSWADT 172 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 DP v The Commissioner of Police [2007] NSWADT 277 Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77 LY v Commissioner of Police, NSW Police [2004] NSWADT 115 McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357 May v the Commissioner of Police [2001] NSW ADT 82 Petty v Commissioner of Police, NSW Police Service [2003] NSWADT 20 Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311 Ward vs Commissioner of Police, New South Wales Police Service [2000] NSW ADT 28 Wilkinson v The Commissioner of Police [2002] NSW ADT 59
Category:	Principal judgment
Parties:	George Saba (Applicant) Commissioner of Police, New South Police Force (Respondent)
File Number(s):	1330376

reasons for decision

BACKGROUND

1. This is an application by Mr George Saba seeking review of the decision of a delegate of the Commissioner of Police, NSW Police Service ("the Commissioner") to refuse his application for a category A firearms licence made on 4 July 2013. The grounds relied on by the Commissioner to refuse his application for a licence were that he had "reasonable cause to believe" that he "may not personally exercise continuous and responsible control over firearms because of his intemperate habits or being of unsound mind". Further the Commissioner considered "that issue of the licence would be contrary to the public interest."

1. The circumstances on which the Commissioner based his belief were the circumstances surrounding Mr Saba's mental health and character. Mr Saba had a history of being diagnosed with schizophrenia and had been convicted in 2001 of 4 firearms offences.

The Tribunal's jurisdiction

1. The Tribunal has jurisdiction to hear Mr Saba's application by virtue of s.75 (1) (c) of the Firearms Act, 1996 and section 63 of the Administrative Decisions Tribunal Act 2013.

1. The Tribunal is obliged to reconsider all the material considered by the original decision maker together with any further relevant material. (Petty v Commissioner of Police, NSW Police Service [2003] NSWADT 20 at [4]; Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77)

Legislation

1. The Firearms Act 1996 ("the Act") makes provision for the regulation, control and registration of firearms. The principles and objects of the Act are set out in s.3. Sub-section 3(1) of the Act provides:

"3(1) The underlying principles of this Act are:

(a) to confirm firearms possession 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 control upon the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(iii) to facilitate a national approach to the control of firearms".

1. Sections 10 to 18 of the Act relate to the issue of a firearms licence. Section 11 provides a broad discretion to the Commissioner to decide to issue or not issue a licence.

1. Sections 11 (3) (a) and 11 (4) set out some specific circumstances where the Commissioner must not issue a licence. Some of the matters relevant to this Application are as follows:

"Section 11(3) A licence must not be issued unless:

(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and .........

Section11 (4) Without limiting the generality of sub-section (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of:

(c) the applicant's intemperate habits or being of unsound mind."

1. Section 11(7) provides that the Commissioner may refuse to issue a licence "if the Commissioner considers that issue of the licence would be contrary to the public interest." This provides the Commissioner with a broad discretion.

The Hearing

1. At the hearing of this matter Mr Saba represented himself and relied on the materials in his application for review, including reports from Consultant Psychiatrist Dr Sharah. Mr Saba gave oral evidence and was cross examined by the Respondent.

1. The Respondent relied on the materials in the section 58 documents.

1. The tribunal tried to contact Dr Sharah by his mobile telephone number in order to hear his evidence and for him to be cross examined. However Dr Sharah could not be contacted.

1. An interpreter in the Arabic language assisted at the hearing.

Materials before the Tribunal

1. The Respondent relied upon the materials contained in the brief of evidence filed on 20 January 2014. That material contained the following documents:

• Mr Saba's firearms licence history;
• Mr Saba's criminal history;
• COPS information;
• 2007 application and refusal documents;
• 2011 application refusal and internal review documents;
• 2012 application and refusal documents - including psychiatric report dated 13 July 2012 from Dr Vesna Pashu psychiatrist;
• 2013 application refusal and internal review documents;
• internal review statement of reasons dated 9th of December 2013; and
• notice of application for review by the ADT lodged 18th of December 2013 by Mr Saba.

1. The Commissioner also relied on written submissions filed and served on 1st April 2014.

The Decision subject of Review Application

1. Mr Saba had lodged an application for a Personal Firearms Licence for category A dated 1st of July 2013. Category A includes a range of rifles and shotguns. He nominated a genuine reason of recreational hunting/vermin control. In support of his application he lodged a report from Dr Alex Sharah, a consultant psychiatrist, dated 15th of January 2013.

1. In his application, Mr Saba indicated that he had previously been refused a firearms licence in NSW; that he had previously undertaken firearms safety training and that he had the consent of a property owner to shoot on his property.

The Respondent's Reasons for Refusal of Mr Saba's Application.

1. The Commissioner's reasons for refusing Mr Saba's application were set out in the Internal Review Statement of Reasons document dated 9 December 2013.

1. The statement of reasons referred to

• the principles and objects of the firearms act concerning safety
• Mr Saba's firearms history and mental health history;
• Mr Saba's licensing application history;
• Mr Saba's now spent firearm convictions from 2001;
• the fact that Mr Saba had no fresh mental health event since November 2003.

1. The application had been refused because the Commissioner considered that Mr Saba may have been of unsound mind and it was not in the public interest. The Commissioner noted that although the firearms convictions in 2001 were now spent, there had been no explanation provided by Mr Saba as to his possession of prohibited firearms such as the SKK assault rifle in 2001. The Commissioner was not satisfied that Mr Saba had demonstrated insight into his mental illness. Dr Sharah's report could not be relied upon as it was not clear what information Dr Sharah had concerning Mr Saba prior to drawing the conclusion that there were no reasons not to provide Mr Saba with a licence. The Commissioner was not satisfied that there was virtually no risk in Mr Saba having a firearms licence.

Mr Saba's Firearms History

1. Mr Saba was first authorised for a One Shooter licence from 16th of May 1988 until 27th of April 1994 when the licence was revoked on the grounds of being of unsound mind. Mr Saba applied again for a licence on 16 April 1996, but this application was refused on the grounds of being of unsound mind. His appeal against this refusal was dismissed at Blacktown Local Court on 13th of June 1996.

1. Mr Saba then applied on 12 July 2007 for a category A firearms licence. This application was refused on 19 November 2007 on mandatory grounds relating to four firearms convictions in 2001.

1. Mr Saba then lodged a further firearms licensing application on 4 August 2011. This was refused on the grounds that the Commissioner found he had reasonable cause to believe that Mr Saba may not personally exercise continuous and responsible control over firearms because he was of unsound mind. Mr Saba then made a further application for review of this decision. On 13th of March 2012 an internal review of the application for a category AB firearms licence affirmed the refusal on the grounds of unsound mind and not in the public interest.

1. Mr Saba then lodged a further application for a category AB firearms licence on 27th of August 2012. This application was refused on 26th of October 2012 on the grounds of unsound mind. Mr Saba did not seek review of that decision.

1. Mr Saba then lodged the current category A licence application on 4 July 2013.

1. On 22nd of June 2001 Mr Saba was convicted of four firearms related offences in Tumut Local Court. These included:

• possess unregistered firearm - not prohibited firearm/pistol;
• possess unauthorised firearm - prohibited firearm;
• not keep firearm safely - prohibited firearm; and
• possess ammunition without being the holder of a licence or permit or authorised to do so.

Spent convictions

1. The Respondent has conceded that as 10 years have passed, these are spent convictions pursuant to section 12 of the Criminal Records Act 1991 (the CRA). Section 12 of the CRA provides:

12 What are the consequences of a conviction becoming spent?

If a conviction of a person is spent:

(a) the person is not required to disclose to any other person for any purpose information concerning the spent conviction, and

(b) a question concerning the person's criminal history is taken to refer only to any convictions of the person which are not spent, and

(c) in the application to the person of a provision of an Act or statutory instrument:

(i) a reference in the provision to a conviction is taken to be a reference only to any convictions of the person which are not spent, and

(ii) a reference in the provision to the person's character or fitness is not to be interpreted as permitting or requiring account to be taken of spent convictions.

1. The tribunal has determined the consequences of these spent convictions below in considering the public interest.

Mental health history

1. The Respondent referred to Mr Saba's documented mental health issues since at least 1994. He had been scheduled under the mental health legislation in 2001 and 2003.He had been subject to a community treatment order requiring him to take medication. The Respondent relied on a psychiatric report from Dr Vesna Pashu to whom Mr Saba had been referred by his general practitioner for a report to accompany his firearms licence application on 27 August 2012. Dr Pashu had drawn the conclusion that Mr Saba had schizophrenia which required treatment and which could relapse.

1. The Respondent also noted that Mr Saba received the disability support pension largely on the basis of his mental ill health from 2001 until the time he had turned 65 and become eligible for the aged pension.

1. The internal reviewer considered that the two reports from Dr Alex Sharah, a consultant psychiatrist dated 15th of January 2013 and 20th of September 2013 which stated "I can see no reason why he cannot have his gun licence" should be given no weight as neither of the reports outlined the history taken from Mr Saba or the reasoning applied to support his opinion. The Respondent relied on the tribunal's findings in the matter of Potts v the Commissioner of Police, NSW Police Service [2010] NSW ADT 311 at para 44 to 51 to support this contention. In the Potts matter the tribunal found that:

"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."

1. Dr Sharah's opinion was also contrary to that provided by Dr Vesna Pashu in July 2012.

Not in the public interest

1. The Respondent noted that firearm possession and use was a privilege conditional on the overriding need to ensure public safety by imposing strict controls on firearms. Where there has been or is a possibility of a threat to the public safety, the public's right to safety must outweigh an individual's privilege to possess and use of firearms. See May v the Commissioner of Police [2001] NSW ADT 82 at para 54.

1. The Respondent submitted that when psychiatric concerns are raised we need to ensure that there is virtually no risk to public safety prior to issuing a licence. The internal reviewer relied on the tribunal's findings in Ward v Commissioner of Police [2000] NSW ADT 28 at paragraph 28 where the tribunal said:

"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."

2001 convictions for firearms offences - spent convictions.

1. The internal reviewer noted that the 2001 convictions were spent convictions after the elapse of 10 years. However the internal reviewer referred to the ADT decision in the matter of DP v the Commissioner of Police [2007] NSWADT 77 at paragraph 45 for the proposition that conduct which gives rise to spent convictions can be considered when exercising a decision made in the public interest. The internal reviewer had attributed significant weight to the fact that Mr Saba had not offered any explanations for the firearms offences of 2001. These offences included the unauthorised possession of an unregistered SKK assault rifle which is prohibited firearm. At that time Mr Saba did not hold a firearms licence. The internal reviewer drew the conclusion that the public could not be satisfied that Mr Saba would strictly obey the obligations accompanying the privilege of the licence. The internal reviewer concluded that he was not convinced that Mr Saba's mental state was no longer a cause for concern. This together with his demonstrated behaviour with firearms meant that the internal reviewer was unable to eliminate the risk to public safety should Mr Saba again have access to firearms. The internal reviewer referred to the threats that Mr Saba had made around the time of his firearms offences to murder some members of his family and neighbours. The internal reviewer noted that police family and medical professionals had held grave fears at the time.

1. The internal reviewer was not satisfied that Mr Saba had been completely frank and forthright in his consultations with Dr Sharah. He further considered that Mr Saba may not be demonstrating insight into the fact of his chronic mental illness and was minimising concerns about his mental illness in order to obtain a firearms licence. The internal reviewer could not be satisfied that there was virtually no risk to the public safety if Mr Saba were able to obtain a firearms licence.

Other evidence relied on by the Commissioner.

Records from the Department of Human Services.

1. Mr Saba had consented to the Department of Human Services producing documents relating to his application for the Disability Support Pension (DSP) in 2001/2002.

1. The documents showed an analysis of Mr Saba's health at the time of application made by Mr Saba's treating practitioner in Tumut, Dr Dekanis. The primary reason for the application for DSP was Mr Saba's mental health and its impact on his capacity to function in the community.

Reports of Dr Sharah

1. The Respondent referred to the reports of Dr Sharah, consultant psychiatrist. Three reports were provided by Dr Sharah 15 January 2013, 20th of September 2013 and 18th of October 2013. These had been provided by Mr Saba in support of his application of July 2013. The Respondent had written to Dr Sharah indicating it wished to cross examine him in relation to his reports about Mr Saba. The Tribunal understands that Dr Sharah had been agreeable to this. However on the day of hearing Dr Sharah could not be reached.

1. It is relevant to note the following observations in Dr Sharah's reports.

1. The first report of Dr Sharah, dated 15th of January 2013, noted that he had examined Mr Saba on 19 November 2012 and again on 11 December 2012 after Mr Saba had consulted him for the purposes of getting his gun licence.

1. Drs Sharah said

"From what I can see of him he is a stable, sensible man, fully in command of his faculties. He has an idea that his wife has been unfaithful to him and said that he is considered to be suffering from a fixed delusion and he is taking Zyprexa 10 mg a day for that.

I found him logical, sensible and in control of himself and I found no evidence of mental disturbance in the interviews when he saw me. He speaks well of his wife and family and is very involved in his activities.

I can see no reason why he can't have his gun licence."

1. Dr Sharah's second report dated 20th of September 2013 set out as follows:

"This is to certify that I have examined George Saba on 20 September 2013. He came to be assessed to get his gun licence.

I have previously noted that he is a sane, sensible, stable man and fully in command of his faculties. The previous delusion regarding his wife has faded completely. I repeat that his previous delusion regarding his wife's infidelity has gone completely due to the fact that he has taken his medications Zyprexa 10 mg a day.

I find no evidence of mental disturbance in the interview. He loves his wife and family and is very involved in his own activities and with them. I can see no reason why he cannot have his gun licence."

1. Dr Sharah's third report dated 18th of October 2013 contains more detail. It related the fact that Mr Saba had been referred to him by Mr Saba's general practitioner, Dr Samaan. Dr Sharah noted that he had treated Mr Saba since 19th of November 2012. He noted that Mr Saba's firearms licence had been removed many years ago after an argument with his wife.

"The licence was taken off him 15 years ago. It was in regard to a problem he has in which he thinks his wife has had sex with other people. His wife was very upset about that and he had a fight with her. That led to the loss of his licence."

Dr Sharah then noted that Mr Saba didn't show any continuing concern about his wife's fidelity and that he was taking appropriate medication of Zyprexa 10 mg a day. He noted that Mr Saba had some physical problems which were well controlled such as diabetes.

"Whether or not you could say because he has this delusion that he suffers from schizophrenia, I don't really know because it is an isolated delusion and is not associated with any other aspects of schizophrenia, in the sense that he has a normal aspect and no other thought disorder and no other oddities in his behaviour. He is well controlled on his Zyprexa 10 mg a day."

Dr Sharah relates Mr Saba's social and religious background. He then continues:

"He has a history of being admitted to hospital in early 2000 on two occasions but there had been no recurrence of the problems. This had all been detailed in the psychiatric report provided by an independent psychiatrist last year."

Dr Sharah refers to the various police reports concerning Mr Saba. He says that having seen Mr Saba for a period of two years he appears absolutely normal in his mannerism and alertness. He can handle machinery or drive a car and his mental acuity would not be affected in terms of handling a firearm by the medication.

"I have written that I didn't consider him a risk now and he would be quite capable of having a gun without being a menace to himself or others. Whatever his problems were they are certainly mitigated with time and perhaps the medication has helped. There is certainly no history of his being a danger with firearms to anyone.

I consider that George is a safe person to be given his licence and is a cooperative patient remaining with his general practitioner and taking his medication. I can't see any problems in his having his licence.

I have given my opinion concerning George's safety in my previous reports and have no reason to reverse that decision considering him as I do to be perfectly in command of his senses and his will and his ability to handle his firearms and any other aspect of his life responsibly. He is most likely (sic) ever to hurt himself as well as he enjoys life and projects an image of a happy involved person with sensible interests.

I don't consider that he is a threat to anybody and will ever be one

As to why he is as good as he is now can be perhaps put down to time mitigating the intensity of his delusion or the help of the medication or both.

I hope this is of some help in your deliberations of this matter as I think it deserves to be given the trust by the police."

Report of Dr Vesna Pashu, consultant psychiatrist 13 July 2012

1. Mr Saba had provided Dr Pashu's report to the Firearms Registry in support of his application in August 2012 to obtain a firearms licence. The tribunal understands that Dr Pashu has seen Mr Saba only once. The Respondent relies on Dr Pashu's report in drawing the conclusion that Mr Saba is of "unsound mind."

1. Dr Pashu's report notes that Mr Saba had been on a disability pension since his psychiatric admission eight or nine years ago when he had been diagnosed with schizophrenia. Dr Pashu noted that Mr Saba was a reluctant historian who told her that he no longer had a mental illness. He had difficulty recalling the details of his psychiatric treatment although Dr Pashu understood that he had had 3 to 4 admissions under the Mental Health Act. He had been assigned a case manager at the Blacktown Community Mental Health Centre but had little interaction with the case manager. Mr Saba had been taking olanzapine (Zyprexa) 10 mg daily but could not recall who had prescribed this. Dr Pashu was concerned that Mr Saba may not have been under any psychiatric care or compliant with the medications. Mr Saba had told her that his first admission to Wagga Wagga Hospital had been because he had believed that multiple people were having sexual relations with his wife. He was placed on a Community Treatment Order after discharge to ensure his compliance with medications.

1. Mr Saba had denied suffering from many medical illnesses although Dr Pashu noted that Mr Saba had type 2 diabetes.

1. Dr Pashu's mental status examination established that Mr Saba was somewhat anxious. His thinking was circumstantial and at times tangential. He demonstrated poor insight into his chronic psychiatric condition. He denied suicidal and homicidal thoughts. Dr Pashu stated that, diagnostically, Mr Saba suffers from schizophrenia and that his poor insight and likely poor compliance with treatment was of concern. She noted that Mr Saba did not display any overt psychotic thinking or behaviour and appeared guarded regarding his experiences. She recommended that Mr Saba see his general practitioner at regular intervals and to comply with this treatment. Dr Pashu recommended that Mr Saba be referred to a psychiatrist for specialist treatment of his illness. Dr Pashu concludes that in her opinion Mr Saba lacks capacity to safely handle firearms due to his poor insight into his chronic mental illness (schizophrenia) and poor compliance with any treatments. This may increase the risk of relapse of his illness and that may lead to a potential risk of harm to himself or others including a misuse of firearms.

Evidence and Submissions of Applicant

1. Mr Saba referred to his application for review of the Respondent's internal review dated 17th of December 2013. He submitted that he was of sound mind and did not present a risk to public safety were he to be licensed to possess and use firearms.

1. He said that at present he spends 21/2-to 3 months a year in the Batlow area and the rest of the time at his home in Baulkham Hills. He has two grandchildren in Castle Hill and one in North Rocks.

1. He assists his children and grandchildren. He plays with them, takes them out to visit friends and he goes to church. He does not drink or smoke. Hunting and shooting is his only hobby. As a result of his fight with his wife his guns had been taken.

1. He said his illness in 2001 had been a result of having lost his farm, having had a lot of trouble from the banks and other members of the family, having worked long hours and having fought with his wife. He had an accident on a tractor and had broken his leg. He couldn't have taken much more and he became unwell. He had been scheduled in 2001 and 2003 as a result of the mounting problems. He no longer has the business. He is now in good control and is a new man and very calm. He takes the Zyprexa once a day to help him sleep, panadeine forte and diabetes medication. He didn't think his behaviour would change if he ceased taking the Zyprexa. He sees Dr Samaan his GP once a month and Dr Hader when he is at the farm in Batlow

1. In relation to his firearms convictions he said that in April 2001 he had a machine gun in his home locked in a cupboard. Someone had come into the house and taken it. He had the machine gun because he loves guns and loved to look at it. The convictions for firearms offences in 2001 were now spent convictions. He was sorry for what had happened and this would never happen again. He knew that what he did wasn't good and it would not happen again.

1. He had seen Dr Pashu once only in July 2012. He had seen Dr Sharah three times and told him his story. He had no cause to fight with anyone any more. He would go trapshooting and shooting rabbits at Silverdale. He hadn't fired a gun since 2001. In Lebanon he had been known as Hunter - because of his love of hunting. He tells people he is now not up to hunting any more in order to excuse this.

1. He agreed that Dr Dekanis in his report for the DSP in 2001/2002 had said that he had a deteriorating mental condition. However he said he was better now as everything had fallen apart in 2001 and now things were better. Some days he is sad the next day he might be happy. Although Dr Dekanis had indicated he had disabilities in 2001/2002 he could now understand and follow instructions particularly in relation to firearms; he could now communicate with people and his dexterity was such that he would now have no problem in handling firearms.

1. He agreed that he had been hospitalised in March 1999 because of mental problems but all of the past mental health issues which he was taken to by the Respondent were caused by other people. His firearms licence had been revoked and further applications refused because of these problems that he had set out.

1. Were he to have a firearm, he would keep it in a safe at Baulkham Hills and carry it in the car to Batlow where he would also keep it in the safe. He no longer has any family at Batlow. Once a week he visits his family at Silverdale but he wouldn't take firearms there.

1. He had told his wife and his children about his current application and he said that they had agreed to it.

1. He was asked about the events of 29 April 2001 after his son had taken his unregistered firearms to Tumut Police Station. He was then hospitalised under a schedule. He was found guilty of the 4 firearms offences. It was put to him that the police were concerned at that time that he possessed firearms unlawfully; that he had a long history of hatred of local people and he was very ashamed about his wife's alleged infidelity. He denied he would have used his firearms then. It was put to him that when he was interviewed about his unlawful possession of the firearms in April 200,1 Mr Saba had stated words to the effect of "It is my right to have one, I have had guns since I was five and no one is going to stop me, not you, God or any law." (See COPS event, item 3d, section 58 documents.)

1. He said that he had bought the SKK machine gun at a local hotel because he liked to look at it. He knew that it was a prohibited weapon in Australia. It was put to Mr Saba that his son had located the SKK assault rifle with a full magazine and three boxes of ammunition in the bedroom in a shopping bag in April 2001 after which his son surrendered it. Mr Saba said he had never bought a weapon since that time.

1. Mr Saba was then asked about the occasion in September 2003 when he attended at the police station saying that an unknown person had injured his dog. The police had investigated and decided that the dog had not been injured by an unknown person. When asked if he still believed that this had occurred he said "maybe, maybe not." He also believed at that time that people were throwing rubbish into his front yard and opening his gates. When it was put to him that these thoughts were a product of his mental illness, Mr Saba said "Maybe, maybe" but that it had ceased.

1. He relied on Dr Sharah's three reports to demonstrate he was not of "unsound mind". He did not know whether his gp Dr Samaan had provided Dr Sharah with any documents or any information about him. He could not remember how many times he had seen Dr Sharah. He thought that Dr Sharah had taken notes when he'd spoken with him. He said he had gone to see Dr Sharah because the police had refused his application and they wanted an up-to-date mental health report. He had told Dr Sharah about his previous delusion about his wife's infidelity. He had not told Dr Sharah about the events at Blacktown Court in 1996 and being declared of unsound mind because he is now a normal person. He did not tell Dr Sharah about the firearms convictions in 2001. He did not think Dr Sharah was aware of the SKK assault rifle matter in April 2001. He hadn't told Dr Sharah about complaining to the police in September 2003 about injuries to his dog. He thinks he told Dr Sharah that he had been diagnosed with schizophrenia and that he had been scheduled. He did not know whether he had shown Dr Sharah Dr Pashu's report. He has never heard voices and he has never had schizophrenia. Everything is back to normal now and he never argues with anyone. He was not going to chase those who had caused him difficulties with his apple business in 2001. He would "leave it up to god."

Respondent's submissions in relation to the law

1. The Respondent submitted that the legislation concerning the licensing for firearms was strict legislation which viewed a firearms licence as a privilege and not a right. The licensing regime under the Act is strict and ought to be interpreted in that way.

Public interest

1. The Respondent submitted that the tribunal had a discretion under section 11 (7) of the Firearms Act to refuse a licence on the basis of public interest. Public interest was an inherently broad concept. Firearms possession and use is a privilege which is conditional on the overriding need to ensure public safety. Ward's case meant that a decision maker must be satisfied that there is "virtually no risk" to public safety.

1. In relation to the issue of 'public interest' the Commissioner referred the Tribunal to Commissioner of Police vs Toleafoa [1999] NSW ADTAP 9 at 25 in which the Appeal Panel said that the 'public interest' consideration gave the Commissioner a wide range of factors in choosing whether to exercise a discretion adversely to an individual.

1. The test in relation to 'public interest' set out in Ward vs Commissioner of Police, New South Wales Police Service [2000] NSW ADT 28 was whether:

"based on all the evidence, it would have confidence that (the applicant) would not pose a risk to public safety if he had access to firearms.

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."

1. Public interest can go beyond the character of the Applicant. It can include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system - see Constantin v Commissioner of Police New South Wales Police Force [2013] NSW ADT AP 16 at 33. The decision maker must exercise the discretion promoting the objects and principles of the Firearms Act. Mr Saba's individual interest in having a licence is subordinate to that of the public interest in ensuring public safety - see Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657.

1. The Respondent referred to the concerns raised by Mr Saba's mental health and his firearms revocation and refusal histories.

1. The Respondent also submitted that the tribunal could and should take into account the conduct leading to Mr Saba's now spent convictions for firearms offences in April 2001. The tribunal had previously found in the matter of DP v The Commissioner of Police [2007] NSWADT 277 at 45 that the conduct leading to these convictions could be taken into account as part of the reasoning for refusing a licence on public interest grounds. Mr Saba's possession of the prohibited weapon and ammunition and their inappropriate storage had only come to police attention because Mr Saba's son had a genuine fear that his father would utilise firearms and had surrendered them to police. The tribunal should conclude that his past conduct meant he would present a risk to public safety in the future.

Unsound mind

1. The Respondent submitted that the finding of the tribunal in Wilkinson v The Commissioner of Police [2002] NSW ADT 59 at para 32 should be applied to the facts before the tribunal about Mr Saba. In the matter of Wilkinson the tribunal had found that to be of unsound mind a person's mental condition must at least have the potential to put public safety at risk if that person has possession or use of a firearm.

Mr Saba's mental health condition, his mental health and firearms licensing histories and his conduct with firearms established that there was the potential for public safety to be put at risk if Mr Saba were to have possession or use of firearms. The tribunal could conclude that Mr Saba was of unsound mind. Dr Pashu's report of July 2012 supported this.

Consideration of Law

1. The role of the Tribunal in hearing this application is to determine whether the Commissioner's decision is the correct and preferable decision having regard to the relevant facts and the applicable law

1. These are not adversarial proceedings where Mr Saba carries an onus of proof. It is a review of the merits of the original decision of the Commissioner to refuse Mr Saba's application for a firearms licence. The Tribunal's task is to make its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct (see McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357.

Unsound mind

1. Section 11 (4)(c) of the Firearms Act requires that the Commissioner must not issue a licence "if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind."

1. This means that the Commissioner must have "reasonable cause to believe" that Mr Saba may not personally exercise continuous and responsible control over his firearms "because of being of unsound mind."

1. The tribunal adopts the finding of the tribunal in Wilkinson v The Commissioner of Police [2002] NSW ADT 59 at para 32 in relation to the meaning of "unsound mind". In that matter the tribunal found that to be of "unsound mind" a person's mental condition must at least have the potential to put public safety at risk if that person has possession or use of a firearm. That is, the tribunal understands that for the purposes of section 11(4) (c) "unsound mind" does not merely mean having a mental condition but that there must be a potential behavioural risk attached to the mental condition were the person to possess or use firearms.

Public interest

1. A discussion of relevant case law about public interest and firearms licensing was set out by the Tribunal in the case of Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276:

69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681:

"The purpose of the reference to 'public interest is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation."

70 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 Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".

.......The Tribunal has previously found that 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. That view has been followed in numerous decisions and I agree that it is the correct approach to be taken in this matter.

72 In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy President Hennessy stated at paragraph [25]:

25 As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. ...

1. Accordingly in determining whether it is in the public interest for Mr Saba to regain his firearms licence, this tribunal returns to the principles behind the Firearms Act. These underlying principles set out 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".

1. The Tribunal agrees that it can take into account the conduct that led to Mr Saba's now spent 4 firearms convictions in 2001 in considering public safety in the public interest.

Findings of Fact and Law

reasonable cause to believe .....because of the applicant's being of unsound mind.

1. Before making a finding about whether there is "reasonable cause to believe", findings must be made about Mr Saba's alleged "unsound mind".

1. Neither Dr Pashu nor Dr Sharah gave evidence to the Tribunal. The tribunal was not able to clarify whether both practitioners had the same information concerning Mr Saba's mental health or firearms history before each of them.

1. Dr Pashu's report may lead a decision maker to the conclusion that Mr Saba was of 'unsound mind". Dr Pashu concluded that Mr Saba suffers from schizophrenia and that there was a potential risk of harm to himself or others including a misuse of firearms when she saw him in July 2012. Dr Sarah's report concludes the reverse. The tribunal notes that Dr Pashu saw Mr Saba once in July 2012 while Dr Sharah has seen Mr Saba more recently and 3 times.

1. The tribunal is satisfied that in the past Mr Saba has been of unsound mind - leading to such findings and revocation of his firearms licence in 1994.

1. The tribunal is also satisfied that Mr Saba has been mentally ill in the past leading to admissions to mental health facilities. In 2001/2002 Dr Dekanis provided reports which indicated Mr Saba could not work as a result of mental illness.

1. Mr Saba reports he has been taking prescribed medication. He says he has had no psychiatric admissions since 2003. He has had no further reported behavioural issues concerning firearms since 2001. Taking into account all these circumstances, the tribunal has insufficient current information before it to conclude that Mr Saba's mental condition is such as to have the potential to put public safety at risk if he had possession or use of a firearm.

1. On the basis of the information before the tribunal concerning Mr Saba's current health the tribunal does not conclude that there is reasonable cause to believe that Mr Saba may not personally exercise continuous and responsible control over firearms because of Mr Saba being of unsound mind.

Not in the public interest

1. The tribunal accepts the fact of Mr Saba's past mental health hospital admissions which were not contradicted by Mr Saba. The tribunal also takes note of the conduct leading to Mr Saba's firearms convictions in 2001. This conduct was not substantially denied by Mr Saba. Mr Saba had told the tribunal during the hearing that he had bought the SKK machine gun in a hotel and had bought it because he liked to look at it. He also said that he knew he had done the wrong thing and would not do it again. The tribunal considers that this conduct is a matter of concern. Further the explanation of why Mr Saba had purchased the assault weapon is inadequate. He did not provide an explanation as to why he had stored it and the ammunition in a shopping bag in his bedroom.

1. Mr Saba did not demonstrate a knowledge of the current legislation in relation to firearms or its mode of storage to the tribunal.

1. The tribunal has already referred to the objectives of the Act of improving public safety by imposing strict controls on the possession and use of firearms. This is a central concern for acting in the public interest.

1. As a result of Mr Saba's past conduct, his lack of adequate explanation as to why he had unlawfully obtained and stored a prohibited firearm which was inappropriate for hunting purposes and while he was unlicensed, leaves the tribunal to conclude that there is a risk to public safety if Mr Saba were now given access to a firearm.

Decision

1. The tribunal finds that, taking all the above considerations into account, the issue of a firearms licence to Mr Saba would be contrary to the public interest under section 11(7) of the Act.

1. The Tribunal affirms the decision under review to refuse Mr Saba a firearms licence.

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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: 05 September 2014