O'Neile v Commissioner of Police, NSW Police [2006] NSWADT 160

CITATION: O'Neile v Commissioner of Police, NSW Police [2006] NSWADT 160

DIVISION: General Division

APPLICANT PARTIES: David John O'Neile RESPONDENT Commissioner of Police, New South Wales Police

FILE NUMBER: 053132

HEARING DATES: 4/10/2005, 24/10/2005 & 8/12/2005

SUBMISSIONS CLOSED: 12/08/2005

DATE OF DECISION: 05/30/2006

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit

MATTER FOR DECISION: Principal matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Firearms (General) Regulation 1997 Firearms Act 1996

Briginshaw v Briginshaw (1938) 60 CLR 360 CASES CITED: O'Sullivan v Farrar (1989) 168 CLR 210 Police v Toleafoa [1999] NSW ADT AP 9 Ward v Commissioner of Police, New South Wales Police Service [2000] NSW ADT 28

APPLICANT P Glisson, counsel REPRESENTATION: RESPONDENT W Pisani, agent

ORDERS: The decision of the Commissioner to revoke Mr O'Neile's firearms licence is set aside

REASONS FOR DECISION Introduction 1 This is an application by David John O'Neile ("Mr O'Neile") seeking review of a decision by the Commissioner of Police to revoke his firearms licence. That decision was made was pursuant to s.24(2)(d) of the Firearms Act 1996 ("the Act") and cl.17 of the Firearms (General) Regulation 1997 ("the Regulation"), namely on the ground that it was not in the public interest for Mr O'Neile to continue to hold his firearms licence. 2 The factual basis on which the decision was made arose from comments that Mr O'Neile is alleged to have made at work, on 11 November 2004, to Peter Adam ("Mr Adam"), the IT manager and Leigh Achis ("Mr Achis"), the safety-coordinator, about using his firearms to shoot himself and others at work, together with a report by Jackie Elphinstone ("Ms Elphinstone"), a psychologist, who examined Mr O'Neile, on 18 November 2004, at the request of his employer. At the time Mr O'Neile's employer was Star Track Express and he was employed as an IT technician. In her report Ms Elphinstone said that she was of the opinion that Mr O'Neile had a psychological condition and that he was at significant risk of suicide. 3 The matters in issue in this application are primarily factual in nature, in particular: (a) whether Mr O'Neile did say what he was alleged to have said to Mr Adam over a period of time including 11 November 2004 and Mr Achis on 11 November 2004; (b) whether Mr O'Neile suffered from, or suffers from, a psychiatric or psychological disorder; and (c) whether Mr O'Neile's conduct was such that he posed a risk to public safety if his firearms licence is restored. Relevant law 4 The Act sets out a scheme for licensing people to possess and use firearms. The principles and objectives of the Act are set out in s.3. So far as is relevant, this section provides that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety: see s3(1)(a). 5 S.24 of the Act sets out the circumstances in which the Commissioner can revoke a licence. That section so far as is relevant, provides as follows: " 24 Revocation of licence … 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 … (d) for any other reason prescribed by the regulations". A 6 Cl. 17 of the Regulations prescribes the following in respect of s.24(2)(d) of the Act: "A licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it". 7 The concept of "public interest" has been considered by this Tribunal in many decisions. In Police v Toleafoa [1999] NSW ADT AP 9 the Appeal Panel stated at [25] that the public interest is: "…an inherently broad concept giving the Appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual as the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal." 8 The phrase 'in the public interest' was considered by the High Court in O'Sullivan v Farrar (1989) 168 CLR 210. In a joint judgment Mason CJ, Brennan J, Dawson J and Gaudron J stated at 216: "… the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and scope and purpose of the statutory enactments may enable… " 9 In Ward v Commissioner of Police, New South Wales Police Service [2000] NSW ADT 28, the Deputy President held that the 'public interest' in relation to the holding of a firearms licence must be considered in the context of the objects and principles set out in s.3 of the Act. 10 Accordingly, a decision to revoke a firearms licence on the grounds of public interest is a discretionary one and is ultimately a question of fact and must be considered having regard to the proven circumstances of each individual case. Evidence Commissioner's evidence 11 The Commissioner relied on the material that was contained in the Brief of Evidence that had been filed with the Tribunal on 10 May 2005. That Brief contained the following material: (a) a chronology of Mr O'Neile's firearms licence history. This history shows that Mr O'Neile has been the holder of a firearm licence since 21 December 1990 and that he had been the holder of a category AB firearms licence since 13 November 1998, (b) a COPS event report recording a telephone call that the police received on the evening of 14 November 2004 from Grant Owen (Mr Owen), the human resources manager of Star Track Express, informing the police that another employee had heard Mr O'Neile threatening to shoot himself an other employees; (c) a copy of a report by Dr John D Pickering, consultant psychiatrist, dated 30 November 2004. In that report Dr Pickering said that he had examined Mr O'Neile that day. At the conclusion of his report, Dr Pickering said the following: "My opinion is as follows: 1. Mr O'Neile does not suffer from any psychiatric condition. 2. He does not require psychiatric treatment. 3. He is not taking any medication. 4. He does not suffer from a psychological or psychiatric condition which would impact on his ability to exercise continuous or responsible control over firearms. 5. He is certainly a person who has the ability to form a rational judgment, and the power to exercise willpower and to control physical acts in accordance with his rational judgment. 6. There is nothing in his mental state examination or his history that suggests that in any way he has the potential to put public safety at risk if he has possession or use of a firearm". d) a copy of the Commissioner's Notice of Revocation and Statement of Reasons, dated 19 January 2005. The Statement of Reasons set out the following finding of fact: "Concerns are held regarding allegations that you have made threats to shoot your work colleagues and made further threats to commit self harm. Given the serious and ongoing nature of these allegations and notwithstanding the fact that you have provided a positive report from a consultant psychiatrist, I consider that it would not be in the public interest for you to continue to hold a licence authorising the possession and use of firearms, at this time." e) a copy of Mr O'Neile's request for an internal review, dated 15 February 2005, including documents that were attached to that request. In his request for an internal review Mr O'Neile said that he had at no stage threatened to kill himself or other employees as stated in the COPS event report of 14 November 2004. He did however, acknowledge that he had said "What's a guy got to do around here to get time off, put a bullet to his head.?" He said he had made this comment in circumstances where he was unwell and suffering from a flu and feeling overworked. He also said that the words were taken out of context and that he had never threatened to bring firearms to work and that he had never been in a fight or argued with his work colleagues. Included with the internal review request were: - copies of handwritten notes of Mr O'Neile recounting what had occurred on 11, 12, 13, 15 and 16 to 30 November 2004, - a medical certificate for Mr O'Neile, dated 13 November 2004, from his general practitioner, Dr Ruth Leckie, stating that he was unfit for work from 15 to 26 November as he was suffering from bronchitis; - a memorandum to Mr O'Neile, dated 25 November 2004, from Mr Owen concerning a disciplinary interview of Mr O'Neile the following Monday concerning "allegations of serious misconduct" by Mr O'Neile; - a memorandum to Mr O'Neile, dated 1 December 2004, from Mr Owen, advising Mr O'Neil that his employment with the company had been terminated for serious conduct. That conduct was described as Mr O'Neile having on Thursday, 11 November 2004, made statements to several employees of the company threatening to bring a gun onto the company premises and kill employees who were causing him frustration.; - a Deed of Release, dated 20 December 2004, between Mr O'Neile and Star Track Express in which the parties agreed that Mr O'Neile would resign from the company and that he would be paid three months salary in addition to his other entitlements; - a report from Dr Ruth Leckie, dated 16 December 2004, in which she states that she saw Mr O'Neile on Saturday 13 November 2004 and that he was suffering a severe episode of bronchitis/asthma. She also stated that Mr O'Neile had told her that he was very busy at work and that it was impossible for him to take time off. She also said that Mr O'Neil had told her that the previous Thursday he had felt so unwell that he had said: "Whats a guy got to do around here to get time off, put a bullet through his head." She went on to say that at the time she saw Mr O'Neile he was clearly unwell "but (he) was of sound mind and entirely coherent. I have known (him) and his family for 16 years and have never known him to be violent or irrational. …"; and - three references from work colleagues who all stated that they have never seen Mr O'Neile display any irrational, violent or threatening behaviour. f) a report, dated 17 March 2005, from Kristy Kozey, the police officer responsible for the action that was taken on the evening of 14 November 2004 together with a statement that she had obtained from Mr Adam, dated 14 November 2004, and Mr Achis, dated 15 November 2004. In his statement Mr Adam said that he had known Mr O'Neile since November 2003. He said that in the previous 12 months Mr O'Neile had constantly said to him "I'm sick of those guys out the back, I'll come in and I'll take a gun to them." He said that he had also heard Mr O'Neile make a number of violent comments and that in the previous three months he had heard Mr O'Neile say to him: "They piss me off so much, that I'm going to bring my gun into work, and shoot them." He also said that on 11 November 2004, Mr O'Neile came to see him and he was crying and that he again threatened to shoot himself and the "guys out the back". In his statement, Mr Agis said that on 11 November 2004, he had a meeting with Mr O'Neile during which Mr O'Neile said: "Mate, I'm really stressed, I'm starting to loose the plot. Many times, including last night, I've held a gun to my head ready to blow my brains out. If I don't do that, I was going to come into work, and knock off all the people that are pissing me off"; and g) a copy of the internal review decision dated 21 March 2005. In the reasons for decision the Commissioner said that the principle issue was whether there was a risk to the safety of the public if Mr O'Neile were to retain his licence. And in this regard that despite the report of Dr Pickering, "on the balance of probability I believe that it is possible that you made the threats as alleged. In that case, your continued possession of firearms would pose a significant threat to public safety". 12 In addition to this material, the Commissioner also summonsed Mr Adam and Mr Achis to give oral evidence and to be made available for cross-examination. At the request of these witnesses, who alleged that they feared Mr O'Neile, they gave evidence in the absence of Mr O'Neile. However, Mr O'Neile's counsel, Mr Glissen was present at all times. 13 The Commissioner tendered into evidence a copy of the report of Ms Elphinstone, dated 25 November 2005, and made her available for cross examination. The Commissioner also tendered into evidence the notes taken by Mr Achis of his meeting with Mr O'Neile on the morning of 11 November 2004 and a copy of an email, dated 12 November 2004, from Mr Adam to his immediate supervisor, John Sullivan, and Mr Achis. The notes of Mr Achis said that Mr O'Neile had come to seek his advice on 2 issues. The first related to a hearing problem that he was experiencing with the KIRK phones that he was required to use and the other related to him feeling stressed. In respect to the latter Mr Achis said: "He then proceeded to tell me that he is also very, very stressed with work and is starting to lose the plot. He mentioned on several occasions including last night he has had a gun to his head ready to blow his brains out. He continued to say that if he doesn't kill himself he was going to come into work and knock off all the people that are pissing him off. I asked him what he thinks was causing this stress and why he was having suicidal tendencies. He said it was a number of things here at work, he mentioned the following; …" 14 The email from Mr Adam said the following: "Gentlemen, Over the past two days I have had a couple of disturbing discussions with Dave O'Neile. On both occasions he has suggested that he felt like going home and putting a gun to his head (He has a gun licence and guns). He has been distraught on both occasions. During the discussions he has complained about: … He has also commented about his thoughts of shooting people who upset him. I have, over time tried to counsel him in a number of these areas, and possibly with some success, but I am not a qualified Psychologist and therefore an (sic) concerned about the situation. I am submitting this report to ensure that you are aware of the situation that is before us." 15 The oral evidence of Mr Adam, Mr Achis and Ms Elphinstone is dealt with below. Applicant's evidence 16 Mr Glisson, on behalf of Mr O'Neile, tendered into evidence an affidavit of Mr O'Neile, sworn on 29 September 2005. In that statement Mr O'Neile denied that he had cried in front of Mr Adam as asserted in his statement, that he had made the threats as alleged in Mr Agis' statement, that he had ever threatened to shoot himself or anyone else, that he had ever been suicidal or that he had been under the care of a psychiatrist or other medical practitioner for a psychiatric illness or condition or that he had ever been prescribed or taken an anti depressant. He also said that he had not seen a copy of the report of Ms Elphinstone until just before he had sworn his affidavit. In respect to that report he said that the history as recorded by Ms Elphinstone was not correct, and he went on to say "… if I had made comments regarding suicide at work then they were simply an expression of my frustration at the time and I never intended to carry out such threats. The simple truth is that I have never intended to carry out such threats. The simple truth is that I have never made threats of suicide, at work or elsewhere." 17 Mr Glisson also tendered into evidence a letter from Mr O'Neile's mother, dated 1 July 2005, in which she recounted the events of 10, 11, 13 and 15 November 2004. Mr O'Neil lives with his mother and she described him as being "a fun loving person with lots of friends a lot of who he worked and socialised with." She said that when her son arrived home from work on 11 November 2004, he looked "very flushed and could not stop coughing." She said that she told him that he had to speak to Mr Adam and get some time off and that he replied by saying that he had spoken to Mr Achis that day who told him to go and see his doctor and to get a doctor's certificate. She also said that her son informed her that he had told Mr Adam what Mr Achis had said and that he had responded by saying Mr O'Neile had gone behind his back and that he had already been told that they were too short staffed for Mr O'Neile to take time off. She said her son went to work as usual the following day, which was a Friday and that he went to see his doctor on the Saturday. She then said that at 12.30 am on 15 November 2004, her other son, who also lives at home with her, was woken by the police knocking on the door. That son woke her and she then woke Mr O'Neile. She said that when the police told her that they had come to take Mr O'Neile's firearms as he had been accused of threatening other people and self harm she and the other members of her family were all "totally in shock and even now it is unbelievable". 18 In addition to this Mr Glissen tendered into evidence the following documents: (a) a letter from Dr Ruth Leckie, dated 13 September 2005, concerning an interview she had with Ms Elfingstone about Mr O'Neile. She said that Ms Elfingstone was aggressive in her questioning. She also said that she had known Mr O'Neile for 15 years and that she had never known him to be aggressive; (b) notes on Mr O'Neile by Mr Adam; (c) a record of events for 14 November 2004 by Mr Achis. In these notes Mr Achis stated that he informed Mr Adam that he "didn't believe that [Mr O'Neile] was capable of fulfilling threats made as it didn't really fit his character" and that he thought it was "purely an attention seeking contrivance". He also noted that he had informed Constable Kozey that at no time did he feel threatened by Mr O'Neile; (d) numerous references from work colleagues of Mr O'Neile. Many knew Mr O'Neile both in a private and a work capacity. They all said that they had never seen Mr O'Neile behave in an aggressive manner, or to act irrationally or threaten to bring his firearms to work or to harm himself or other workers. Those who also knew Mr O'Neile personally said that they had been shooting with him and that they had at all times seen Mr O'Neile use his firearms in a responsible and safe way. 19 At the hearing Mr Glissen called Mr O'Neile to give oral evidence and he was cross examined by Mr Pisani for the Commissioner. In addition to this Dr Leckie gave oral evidence by telephone and the following work colleagues of Mr O'Neile (some of whom were also union representatives who had attended meetings with Mr O'Neile and management following the events of 11 November) were also called to give oral evidence: Mr Bruce Andrew Tempest, David Edmonds, Brendan Edmond, Barry Jones, Mr Sinclair, and Mr Zraika. Many of these witnesses had also provided written references previously. Consideration 20 As mentioned above, the primary issues in this application are factual and it is not until these are determined can a determination be made as to whether the Commissioner's decision that it is not in the public interest for Mr O'Neile to continue to be the holder of a firearm licence is the correct and preferred decision: see s.63 Administrative Decisions Tribunal Act 1997. 21 In determining whether an alleged fact or facts have been proved it is well established that the requisite standard of proof is the balance of probabilities. It is also well established that the principles as set out by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 360 at 361-362 are applicable in order to determine whether that standard of proof has been met. That is, in making a finding of fact the trier of fact must do so on the basis of "an actual persuasion of its occurrence or existence" or to its "reasonable satisfaction". Dixon J went on to say that "reasonable satisfaction" is to be attained having regard to matters such as "the seriousness of the allegation that has been made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from the particular finding". 22 I have examined all the material that is before the Tribunal, including the testimony of those who gave oral evidence. Conversations with Mr Adam and Mr Achis 23 In respect to the first factual issue as to what Mr O'Neile actually said to Mr Adam and Mr Achis, Mr O'Neile acknowledges and has always acknowledged that he said something like "what's a guy got to do around here to get time off, put a bullet to his head?" In his oral evidence he said that he said this jokingly in the context of feeling ill and stressed and not being able to take time off work. What is clear, however is that Mr Adam and Mr Achis did not regard the comments of Mr O'Neil as having been said in jest. 24 There is no dispute that, on 11 November 2004, Mr O'Neile was unwell and stressed and that he wanted time off work. Furthermore he had been unwell and stressed for some time. Mr Adam in his oral evidence acknowledged that October, November and December was a very busy time for the company and there was a policy that leave would only be granted in exceptional circumstances. The evidence also suggests that Mr O'Neil was dissatisfied about the manner in which he perceived he was regarded by management at that time. 25 The essence of the evidence of Mr Adam is that Mr O'Neile had threatened to shoot himself and others at work and that he had made such threats over a long period of time, not only in early November 2004. In his oral evidence Mr Adam said that it was not until 11 November 2004 that he decided to do something about the threats that Mr O'Neile is alleged to have made. He said he decided to do something because on that day Mr O'Neile looked very ashen and unwell and in doing something he reported the incident to Mr Owen, the human resources manager. 26 In my opinion, the evidence of Mr Adam was not entirely credible. I found Mr Adam to be evasive and defensive. If, as stated by Mr Adam, there was a long history of Mr O'Neile threatening to shoot himself or other work colleagues, it is unimaginable that he, Mr Adam, or others would not have raised their concerns much earlier with Mr O'Neile or management generally. Mr Adam also appears to have had some concerns about Mr O'Neil's work performance and in my opinion it was these and not Mr O'Neile's health, which were of concern to Mr Adam. On the other hand I found Mr O'Neile gave forthright evidence, some of which was to his detriment. Accordingly, on the whole I prefer the account of events given by Mr O'Neile over those given by Mr Adam. 27 On the other hand, on the whole, I found Mr Achis to give credible evidence. However, I have some doubt as to whether he recorded precisely what Mr O'Neile had said to him on the morning of 11 November 2004. In his oral evidence Mr Achis said that he had only recently been appointed to the company when he met with Mr O'Neile. He also said that he made his notes of the meeting during the course of that meeting. These notes he said were typed on his computer as he was having his discussions with Mr O'Neile. In his oral evidence Mr O'Neile said he did not see Mr Achis using his computer during their discussions. I agree with the submission made by Mr Glissen that having regard to the content of the notes, which are written in the past tense, that the notes were not written contemporaneously. However, I accept that they were written not long after the meeting and certainly before 14 November when Mr Owen went to the police. I also accept that they reflect what Mr Achis had understood Mr O'Neile said, but whether they reflect what was actually said is difficult to determine. In my opinion, nothing turns on this as Mr O'Neile has readily admitted that he made a comment about putting a bullet to his head and he undoubtedly expressed his frustration with management. Whether Mr O'Neile suffered from or suffers from a psychiatric or psychological disorder 28 Following the report of Dr Pickering, which is not challenged, there can be no question that Mr O'Neile does not suffer from a psychiatric or psychological disorder. 29 The only evidence of such a disorder is that contained in the report of Ms Elphinstone. I found Ms Elphinstone to be a very credible witness, who explained that she had prepared her report on information that she had received at that time. That information was based on what she was told by Mr Adam and others and as I have found above this information was not entirely reliable. Furthermore, she has not re-examined Mr O'Neile since November 2004. Does Mr O'Neile pose a risk to public safety if his firearms licence is restored 30 Other than the incidents of November 2004, there is no evidence that during the time Mr O'Neile has been the holder of a firearms licence that he has put his safety or that of others at risk. Indeed the evidence is to the contrary in that he meticulously endeavours to abide by the requirements of safe use and storage of his firearms. 31 What the events of November 2004 demonstrate is that the comments of Mr O'Neile about putting a bullet to his head were, in the circumstances they were said, interpreted as being a threat by him to shoot himself or others. In my opinion, a reasonable person being aware of the circumstances and also being aware that Mr O'Neile was the holder of a firearm licence, could interpret Mr O'Neile's comments in this way. I note however, that Mr Agis said that he did not find what Mr O'Neile had said as being threatening. While I accept the evidence of Mr O'Neile that he made his comments in the form of a joke and that he had at no time intended to shoot himself or others, the fact that he made this comment also demonstrates a lack of judgment on his behalf. The context in which he made the comment was no joking matter. He has now of course appreciated what consequences can flow from such a lack of judgment. While it is not for the Tribunal to comment on the action taken by Mr O'Neile's employer, in my opinion, the steps taken by the Commissioner were entirely appropriate. Having received information on the evening of Sunday 14 November 2004 about the alleged threats made by Mr O'Neile, which were substantiated by statements given by Mr Adam and Mr Achis there was clearly a need for the police to act and to act quickly. In this regard it is noted that while Mr Achis stated that he thought the threats that had been made by Mr O'Neile were attention seeking he was not "100 percent sure" of this. 32 Mr O'Neile, through his counsel, Mr Glissen, said that he now appreciated the significance of what he said and indicated that he would in future ensure that he would not make such a comment, even jokingly. 33 In my opinion, having regard to all the evidence that was before the Tribunal, the events of November 2004 were isolated and particular to the circumstances in which Mr O'Neile found himself at that time. These events also occurred some time ago. Accordingly, I find that at the time of this determination, there is no evidence to indicate that Mr O'Neile poses a risk to public safety if his firearms licence is restored. 34 For the reasons set out above, the Tribunal is of the opinion that the Commissioner's decision to revoke Mr O'Neile's firearms licence is not the correct and preferred decision and should be set aside.