Asher v Commissione of Police, NSW Police [2005] NSWADT 280

CITATION: Asher v Commissione of Police, NSW Police [2005] NSWADT 280 DIVISION: General Division APPLICANT PARTIES: Thomas Asher RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 053187 HEARING DATES: 30/08/2005 SUBMISSIONS CLOSED: 08/30/2005 DATE OF DECISION: 12/05/2005

BEFORE: Montgomery S - Judicial Member APPLICATION: Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit MATTER FOR DECISION: Principal matter LEGISLATION CITED : Firearms (General) Regulation 1997 Firearms Act 1996 CASES CITED: Ward v Commissioner of Police [2000] NSWADT 28 APPLICANT REPRESENTATION: S Bull, Solicitor RESPONDENT W Pisani, Agent ORDERS: The decision under review is affirmed

REASONS FOR DECISION 1 Mr Asher is 71 years of age. He has a long history of using firearms including a period of military service. Recreational shooting and involvement with a shooting club is his main recreational pursuit. 2 In 1998 Mr Asher was issued with a Category AB firearms licence under the Firearms Act 1996 ("the Act"). The licence was revoked in February 2003. An internal review of the revocation determination upheld that determination. In July 2004 Mr Asher lodged a new application for a Category AB firearms licence. That application was refused and internal review affirmed that refusal. Mr Asher has applied to the Tribunal for an external review of the refusal. Background 3 Mr Asher has been involved in an on-going dispute with officers of the Sydney Country Council Rifle Club since approximately October 1998. He alleges that the Club Captain assaulted him, he was harassed, threatened and assaulted, and had firearms pointed at him. Mr Asher made several allegations regarding financial misappropriation by the club's Treasurer, and that the Club 'ripped him off' in regard to money he believed he was owed for 'marking' targets. 4 The President of The New South Wales Rifle Association alleged that Mr Asher threatened a range officer and that he lay at the 800-metre firing mound whilst shooting was taking place at the ranges in front of that location. 5 The Commissioner's delegate formed the view that if these allegations were true, the conduct gave rise to serious concerns regarding Mr Asher's level of responsibility. As a consequence, Mr Asher's firearms licence was suspended and subsequently revoked. 6 In July 2004 Mr Asher lodged an application for a new licence. This was refused and an internal review affirmed that refusal. The Commissioner's case 7 The Commissioner relies on the reasoning presented in relation to the internal review of the determination to refuse Mr Asher's application. The Commissioner also relies on evidence provided by Mr John Fitzgerald, Chairman of the New South Wales Rifle Association. Mr Fitzgerald gave evidence by telephone and was subjected to cross-examination. His evidence related to the concerns held by the Association in relation to Mr Asher's holding a firearms licence. 8 The determination to refuse Mr Asher's application was based on the view that there was a possibility of a threat to the public's safety and the public's right to safety must outweigh an individual's privilege to possess and use a firearm. This view was in turn based largely on a medical assessment from Dr Christopher Canaris, Consultant Psychiatrist. 9 In a letter dated 8 November 2004 Dr Canaris stated: "On mental state examination, Mr Asher presented as an understandably irate gentleman who looked his stated age. He spoke of the club captain going round to members getting members to try and force him out. His account was repetitious but consistent (though obviously it needs independent corroboration). His assertion that he had been assaulted by the club captain and treasurer had assaulted him to the point of pointing weapons at him and trying to run him down sound implausible on first hearing. That said, these sorts of things do sometimes happen I found no evidence of psychosis (ie overt delusions, thought disorder or hallucinations) or of an organic brain syndrome. In conclusion, Mr Asher seemed a cantankerous man with an axe to grind. If his account is substantially true, he has every right to be. It would appear that he has been very poorly treated and "set up." In so saying however I am reliant entirely on Mr Asher's account of the situation. From the one and a half hours I spent with him, I found no overt evidence of psychiatric illness. At worst, there was evidence of a rigid mental outlook possibly consistent with pre-morbid personality (he was an Army Sergeant) compounded by normal ageing. This rigidity is reflected, I suspect, in his reluctance to provide a psychiatric report though of course expense would have also been a consideration. A further consideration would be the reluctance many people feel about dealing with members of my profession! Again, however, I am reliant entirely on his account." 10 The Commissioner's delegate formed the opinion that Dr Canaris did not distinctly exclude the possibility of mental disorder. Consequently Mr Asher's application was refused. Dr Canaris provided a further statement, dated 22 November 2004, advising his opinion that, provided that Mr Asher had provided an accurate history, he "poses no greater or lesser threat to public safety than any other member of the community should he be granted a firearms licence". 11 The Commissioner's delegate subsequently provided Dr Canaris with a number of letters that Mr Asher had written in which he referred to himself as "a nutcase". Dr Canaris then stated: "I will not go through the difficult exercise of reproducing the content of his letters. They are repetitious to the point of being perseverative and have a distinctly paranoid flavour. He repeats here many things which he told me at interview. At the same time, he does make allegations of serious misconduct on the part of some club members. There are three possible interpretations of this material: 1. The first is that Mr Asher is a cantankerous old man who has been badly done by and is seeking redress for genuine injustices but because of his personality style is doing so in a way that can only damage his case. This as you are aware was broadly the conclusion I came to in my first report. 2. The second is that underneath all the verbiage lurks a psychiatric disorder - possibly a paranoid disorder - which causes him to misperceive the actions of his erstwhile club members as a conspiracy to deprive him of his rights. or 3. Finally, it is impossible to determine who is telling the truth. Given that, as you point out, a Firearms Licence is a privilege and not a right, I think it is important that the Firearms Registry satisfy itself that there is no substance to the allegations laid by Mr Asher. If this has been done, then unfortunately the second or third scenarios must apply. In the event of the second scenario, Mr Asher would in my view pose an unacceptable risk if allowed access to firearms. Should the third scenario apply, I can only advise the Registry to err on the side of caution. Unfortunately, Mr Asher leaves the listener feeling distinctly uncomfortable as he rambles on regurgitating the same allegations. His presentation at interview is reinforced by his letters." 12 On the basis of this material, the Commissioner's delegate concluded that it is not against the public interest for Mr Asher to hold a licence. The Commissioner remains of that view. Mr Asher's case 13 Mr Asher relies on his own evidence and a number of testimonials provided on his behalf. In particular he relies on letters from Mr Adrian Abbott and Mr Paul Barrett and a Certificate from the Inner West Hunters Club indicating that Mr Asher is a member for the year 2005/2006. 14 Written submissions were also provided on behalf of Mr Asher. Mr Bull submitted that Mr Asher fulfils the criteria for possession of a firearms licence in NSW. He is a member of the Inner West Hunters Club. This club is an approved organisation by the Commissioner of Police for the holder of an AB firearms licence. He is an active member of this club and has attended various meetings and activities of the club in the last 12 months. 15 Mr Asher asserts that he has a genuine need for a firearms licence. That genuine need is based on his recreational pursuits and membership of the Inner West Hunting Club. 16 He says that many of the emotions he has exhibited and which the Commissioner cited as a reason to refuse him a licence are normal human emotions. He submits that his age, living arrangements and lifestyle should be taken into account. Involvement in a shooting club was and continues to be an important part of his life. He says that his behaviour falls within the normal spectrum of human behaviour and is not indicative of mental illness and that he does not pose a risk to the general community. 17 In relation to the psychiatric evidence matter, Mr Bull submitted that the Commissioner and or his delegates do not have any specialist training in psychology or psychiatry. Accordingly, the Commissioner is no position to make judgments that persons are mentally unwell or have a psychiatric problem in the absence of a specialist opinion that opines as much. The Commissioner has not sought to have Mr Asher assessed by an expert of his choice. 18 He further submitted that Dr. Canaris's opinion should be assessed in terms of Mr Asher's age, absence of a history of mental health problems and lack of a criminal history. The initial opinion of Dr. Canaris is significant and should be given appropriate weight by the Tribunal. The second opinion of Dr. Canaris forms the substantial evidential basis on which the Commissioner sought to deprive Mr Asher of a firearm licence. Mr Bull argued that Dr. Canaris was placed in the impossible situation where he was asked to exclude a possibility. This is clearly beyond the scope of his assessment. Further it is also clearly beyond the scope of even the most meticulous and thorough assessment conceivable. He asserts that the Commissioner has in effect committed an error of reasoning. A logical possibility has been transformed into a real risk to public safety. 19 Mr Asher provided further material for the consideration of the Tribunal. He provided a lengthy affidavit in which he set out some of his history and attitude to certain members of the Sydney County Council Rifle Club. Some time has elapsed since the events concerning the Sydney Country Rifle Club that appeared to have caused the Commissioner concern. Mr Bull argued that this is of significance and indicates the likelihood that Mr Asher has 'cooled off'. Mr Asher stated that he wants to 'move on and wants nothing to do with this club or its members.' He has joined a new club and is well integrated in that organisation and requires a firearm licence in order to participate fully in the club and fulfil one of his principal leisure activities. 20 Mr Abbott is a shooting friend of Mr Asher and has some personal experience of the matters that Mr Asher has complained of in the past concerning his treatment by the Sydney County Council Rifle Club. Significantly, Mr Abbott confirms that Mr Asher was treated badly and that there is legitimacy to some of his grievances against the Sydney County Council Rifle Club. 21 Mr Bull submitted that the Tribunal should give appropriate weight to Mr Asher's age and good character is something that the Tribunal can rely on to support a conclusion that there is virtually no risk in allowing him access to firearms for recreational purposes. Shooting and participation in shooting clubs are the principal recreational pursuits of Mr Asher. It is in the public interest that individuals should be allowed to pursue their legitimate recreational interests. Findings 22 Clause 17 of the Firearms (General) Regulation 1997 provides that 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. 23 In my view, the Commissioner is rightly concerned about the risk posed to public safety if Mr Asher is granted the licence he seeks. In my view, any consideration of public safety must also include consideration of Mr Asher's safety. The evidence before me suggests that Mr Asher has exhibited behaviour that could reasonably be seen as placing his own safety in jeopardy. 24 There is good reason to suspect that Mr Asher is unlikely to have changed his attitudes to certain members of the Sydney County Council Rifle Club. This view is supported by the opinions provided by Dr. Canaris. While Dr. Canaris's original opinion suggests that Mr Asher poses no greater or lesser threat to public safety than any other member of the community should he be granted a firearms licence, this opinion was qualified. 25 One of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms. The fundamental principle of the Act confirms firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety. The 'public interest' in relation to the holding of a firearms licence relates to the objects and principles set out in section 3 of the Act. 26 In Ward v Commissioner of Police [2000] NSWADT 28 the Tribunal's Deputy President stated at paragraphs 27 - 28: "27 …The question for the Tribunal is 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. 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." 27 In the circumstances of this matter I am not satisfied that there is 'virtually no risk' to public safety if Mr Asher were given access to a firearm. That being the case, the application for a licence should not be granted. It follows, in my view, that the Commissioner's determination to refuse Mr Asher's application is the correct and preferable one and therefore it should stand. Order The decision under review is affirmed .