Probst v Commissioner of Police [2023] NSWCATAP 61

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Probst v Commissioner of Police [2023] NSWCATAP 61 Hearing dates: 13 December 2022 Date of orders: 1 March 2023 Decision date: 01 March 2023 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President S Thode, Principal Member Decision: Appeal dismissed Catchwords: APPEAL-procedural fairness-offer of adjournment refused- evidence concerning PTSD and alcohol use disorder-whether there was a risk to public safety in holding a firearms licence -application of Firearms Act-whether there was an error of law or a leave ground – all grounds rejected Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Firearms Act 1996 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Steven Probst (Appellant) Commissioner of Police NSW (Respondent) Representation: Solicitors: Appellant (Self Represented) Lindsay Taylor Lawyers (Respondent) File Number(s): 2022/00241986 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Administrative & Equal Opportunity Division Citation: Not applicable Date of Decision: 21 July 2022 Before: K Mobbs, Senior Member File Number(s): 2021/00172589

REASONS FOR DECISION

Introduction 1. This appeal arises out of a decision published 21 July 2022 (which we shall refer to as the Decision) by which the Tribunal affirmed the Decision of the Commissioner to revoke the firearms licence held by the Appellant. 2. Following the revocation (which occurred on 22 March 2021) the Appellant lodged an application with the Tribunal for administrative review. That application was lodged on 16 June 2021 and the hearing of the application occurred on 2 November 2021. The Commissioner was the Respondent to the application at first instance and is the Respondent to this appeal. 3. As the Decision records, the Respondent's decision to revoke the firearms licence was made under the provisions of the Firearms Act 1996 (NSW) (the Firearms Act) and the Tribunal's jurisdiction to hear and determine the Appellant's application arises by reason of the provisions of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). The ADR Act requires the Tribunal to make the "correct and preferable decision" when determining the application for review (s63). 4. One of the points raised by the Appellant in this appeal concerns contentions that he was denied natural justice and experienced procedural unfairness at the hearing at first instance. Later in this decision, we will refer to relevant events which occurred during the hearing. However, in order to provide the background to the appeal we summarise, in the following paragraphs, the reasoning contained in the Decision. 5. Summary of the Decision 6. At [8] of the Decision the Tribunal recorded that the Respondent did not call any oral evidence and relied on documents supplied under s 58 of the ADR Act and also a bundle of evidence filed and served by the Respondent. The Appellant raised concerns about the latter bundle of evidence and submissions having been served late. The Respondent's representative consented to an adjournment to allow the Appellant further time to consider the material, but the Appellant indicated that he did not want an adjournment and that the matter should proceed. 7. At [10] the Tribunal described the evidence relied upon by the Respondent. It included material that was not before the original decision-maker. It included a decision in proceedings in the NSW Industrial Commission (the IRC) before Sams DP in which the parties were the Appellant and the Respondent. It also included medical and consultation notes, referral letters, reports and correspondence relating to Dr Elliott-Rudder, general practitioner, Dr Adesanya, consultant psychiatrist, Ms McInerney, psychologist, Mr Wilson, psychologist, Dr Reed, general practitioner and Dr Sidorov, psychiatrist. It appears this material was obtained as a result of summonses having been issued by the Tribunal at the request of the Respondent. 8. At [72] the Tribunal recorded that the findings in the Industrial Relations Commission decision (the IRC Decision) were not challenged by the Appellant and that accordingly, the Tribunal accepted the findings of Sams DP. The Tribunal referred to a number of incidents occurring 13 years earlier which the Tribunal characterised as domestic violence associated with the consumption of alcohol. The Tribunal recorded that the Appellant conceded that the allegations concerning these incidents were not minor. 9. At [77] the Tribunal considered whether the Appellant was a fit and proper person to hold a firearms licence and concluded that it was so satisfied "having regard to the Applicant's conduct since the IRC Decision". 10. From [84] the Tribunal dealt with contentions made by the Respondent that the Appellant had provided false or misleading information in connection with application forms connected to his firearms reapplication licence. The Tribunal found that there was no evidence supporting these contentions: see [86], [89], and [91]. 11. From [92] the Tribunal considered the Respondent's contention that it was not in the public interest for the Appellant to hold a firearms licence on the basis that he is recovering from PTSD (post-traumatic stress disorder) and AUD (alcohol use disorder). The Tribunal found at [92] that there was evidence derived from the various medical reports that the Appellant "currently meets the diagnostic criteria under DSM-5 for PTSD and alcohol use disorder". The Tribunal found that this was not in contest between the parties and that the Appellant had not been fit for work since August 2020. The Tribunal also found that the Appellant was continuing to receive treatment for these disorders. 12. At [93] the Tribunal found that as at the date of the hearing, the Appellant has not recovered from either of the two disorders. The Tribunal identified the primary issue in contention as whether or not, as a consequence of these current diagnoses, it is in the public interest for the Appellant to hold a firearms licence. The Tribunal went on to describe that its role was to consider the risk to the public associated with the Appellant holding such a licence, that only real and appreciable risks need to be taken into account and that minimal, fanciful or a theoretical risk can be excluded. 13. The Tribunal then considered the material contained in the various medical notes which had been provided through the summonses earlier mentioned. At [97] the Tribunal found that the Appellant's diagnosis of PTSD fits within the definition of "unsound mind" in the Firearms Act, that being a basis under the Act for a licence not to be issued. The Tribunal found that the Appellant's current diagnosis of PTSD "at least has the potential to put public safety at risk if the [Appellant] has the possession or use of a firearm". 14. At [105] the Tribunal found that in the "light of the evidence referred to above" the diagnosis of PTSD and the diagnosis of alcohol use disorder, provides the basis for the finding that the Appellant's use of alcohol also amounts to "intemperate habits" under the Firearms Act, that also being a basis for not issuing a firearms licence. The Tribunal found that the Appellant's use of alcohol is relevant to the consideration of the public interest as a pattern of consuming immoderate amounts of alcohol at least has the potential to put public safety at risk if the Appellant has the possession or use of a firearm. The Tribunal stated that the findings in the IRC Decision show a link between the Appellant's consumption of alcohol in four out of the five incidents of domestic violence. 15. At [106] the Tribunal found that there was no evidence from any medical practitioner either supporting the Appellant's suitability for a firearm or providing any opinion on it. The only material that specifically addressed this issue were the reports of two psychologists put forward by the Appellant, namely Ms McInerney and Mr Wilson (who also gave oral evidence and was cross- examined). The Tribunal found that the evidence of both of these practitioners did not unequivocally state that the Appellant's PTSD and AUD do not adversely impact on his ability to hold a firearms licence. 16. From [107] the Tribunal considered the evidence of Ms McInerney in the form of her reports. The Tribunal noted that Ms McInerney's reports stated that she is not a medical doctor and does not profess to be an expert. At [109] the Tribunal referred to one of her reports which asked the question whether the Appellant's condition or impairment would have the potential to put public safety at risk if they were to have possession and use of a firearm. Mr McInerney's response was that she was not a medical doctor and then went on to state that there have been no indications either current or historical that the Appellant would potentially place the public or himself at risk if he were to have possession of a firearm. 17. At [110] the Tribunal found that it should give little weight to the opinions of Ms McInerney. Two reasons were given: first, that she has not treated the Appellant since January 2021 "and did not give evidence in these proceedings". Secondly, taking into account "these factors" and the caveat (which in the context of the Decision means the earlier statements that Ms McInerney does not give medical opinions). 18. At [111] the Tribunal referred to the evidence of Mr Wilson, who supported the Appellant having his firearms licence restored on the basis that in his view, the Appellant posed low to no risk in holding a firearms licence and presented no higher risk than any member of the public. The Tribunal stated that the question of whether the Appellant should have a firearms licence is a question which the Tribunal itself must decide. For this reason, the Tribunal stated that it did not accept the opinions of either Ms McInerney or Mr Wilson in relation to this question as determinative of the view that the Tribunal should take. 19. At [116] the Tribunal found that the disorders of PTSD and AUD are current and that the Appellant continues to display symptoms and continues to receive treatment. At [117] the Tribunal found that the Appellant's PTSD falls within the definition of "unsound mind" and his AUD and alcohol consumption falls within the definition of "intemperate habits" in the Firearms Act. The Tribunal found that this has relevance in the context of the public interest as both mental disorders have the potential to put public safety at risk if the Appellant was to have possession or use of a firearm. 20. At [119] the Tribunal found that having regard to all of the evidence and "in the absence of any evidence from any medical practitioner that addresses the [Appellant's] conduct in the IRC Decision, the [Appellant's] PTSD, alcohol use disorder and evaluates the [Appellant's] risk in relation to holding a firearms licence, the current state of the evidence does not permit a clear assessment of risk other than to say the [Appellant's] history presents an appreciable risk to public safety". This conclusion is affirmed in [122] where the Tribunal states that in the absence of any evaluation from a medical practitioner relating to the Appellant's risk in holding a firearms licence, the Tribunal is not satisfied in the public interest for the Appellant to hold a firearms licence. 21. Notice of Appeal 22. The grounds of appeal contained in the Notice of Appeal may be summarised as follows: 1. The Tribunal failed to apportion appropriate weight to the fact that the Appellant was deemed fit to conduct police duties whilst carrying his service firearm, yet was deemed unfit to be licensed to possess and use firearms for lawful sporting or recreational use under the Firearms Act. 2. The Tribunal failed to apportion appropriate weight to the fact that the Appellant, by virtue of being a sergeant of the Police Force at the same time as being licensed to possess and use firearms, was empowered to use his service firearm in the execution of his duties. 3. The Tribunal failed to apportion appropriate weight to the fact that the Appellant's powers to carry a police-issued service firearm exceeded any authorised use of any firearm in the sporting or recreational context. 4. The Tribunal erred in its decision-making process by, on the one hand, finding that the Appellant was fit and proper and on the other hand finding that evidence was required from a medical practitioner regarding the Appellant's conduct which led to the proceedings in the Industrial Relations Commission. 5. The Tribunal erred by not apportioning appropriate weight to the fact that there had been no reported adverse instances where the Appellant possessed or used firearms in a way that breached the Firearms Act or Regulations or that there had been no incidents of violence since the decision of the Industrial Relations Commission in 2009 or that there was no evidence of the Appellant using his police-issued service firearm in any way contrary to instruction or the law. 6. In addition, the Appellant sought leave to appeal on the basis that the Decision that it was not in the public interest for the Appellant to hold a firearms licence is inconsistent with the fact that the Appellant was permitted to retain use of his service firearm as a sergeant of police. In addition leave was sought on the basis that the Tribunal held that the absence of medical evidence relating to the Appellant's current diagnosis of PTSD and AUD, the findings of the IRC and the absence of any evaluation from a medical practitioner relating to the Appellant's risk in holding a firearms licence as being the basis of the finding that it was not in the public interest for the Appellant to hold a firearms licence. 1. At the hearing of the appeal, the Appellant agreed with the members of the Appeal Panel that the grounds of appeal had been developed in his submissions and that the grounds he was pursuing were the following: 1. Ground 1: lack of procedural fairness at the hearing arising out of the acceptance of medical evidence without the ability of the Appellant to cross-examine the authors of the medical reports. 2. Ground 2: lack of procedural fairness in that the Respondent supplied evidence at a late stage, with the result that the evidence should have been rejected. 3. Ground 3: the Tribunal gave inappropriate weight to the medical evidence concerning the current diagnosis of PTSD and AUD. 1. The Respondent filed a Reply to Appeal opposing the appeal.