TI v Commissioner of Police, NSW Police [2005] NSWADT 243

CITATION: TI v Commissioner of Police, NSW Police [2005] NSWADT 243 DIVISION: General Division APPLICANT PARTIES: TI RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 053115 HEARING DATES: 03/06/2005 08/08/2005 SUBMISSIONS CLOSED: 08/08/2005 DATE OF DECISION: 10/26/2005

BEFORE: Leal S - Judicial Member APPLICATION: Firearms Act - 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 Security Industry Act 1997 Commissioner of Police v Toleafoa ([1999] NSWADTAP 9; CASES CITED: McDonald v Director General of Social Security (1984) 1 FCR 354 at 357; Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 185 APPLICANT REPRESENTATION: In person RESPONDENT W Pisani, Agent ORDERS: The decision of the Commissioner is set aside.

REASONS FOR DECISION Introduction 1 On 10 December 2004, the Commissioner of Police (the Commissioner) revoked the Category AB Firearms licence held by the applicant, who will be referred to as TI. On 31 March 2005, after the decision had been affirmed on internal review, TI applied to the Tribunal for a review of this decision. Background 2 TI has held firearm licences since 1988. On 24 September 2003, he re-applied for a Category AB firearms licence, which had previously been issued to him on 26 August 1998. A Category AB firearms licence was issued to him on 9 December 2003 and was due to expire on 9 October 2008. This licence was revoked on 10 December 2004. The reason for the revocation relates to an incident which occurred on 5 May 2004. 3 On 5 May 2004, TI was arrested and taken by police vehicle to Gordon Police Station after he returned a positive reading of 0.07 for a breath analysis. Upon alighting from the police vehicle, TI became agitated and allegedly grabbed hold of a police baton. TI was then held down on the ground by two police officers. A second breath analysis was taken from him, which returned a reading of 0.04. TI then informed the police officers that he was taking medication to treat depression. TI was subsequently released without charge and driven home by one of the police officers. 4 To assess TI's suitability to continue to hold a firearms licence, the Commissioner requested TI to provide a report from a medical practitioner. In the report subsequently provided by TI, the medical practitioner wrote that: I have not seen [TI] since December 2003 and therefore feel that I am not in a position to assess if his medical condition may impact on his ability to exercise control over firearms. 5 On 24 August 2004, the Commissioner revoked TI's licence and made the following findings of facts: Due to an incident with Police on 05 May 2004 the Firearms Registry requested on 06 May 2004 that you provide a report from a qualified medical practitioner. However, the letter provided by your Doctor states that you had not been seen by him since December 2003 and that she was therefore not in a position to assess if your medical condition may impact on your ability to exercise control over firearms. As such, due to concerns held regarding your alleged erratic behaviour with Police on 05 May 2004 and without the benefit of expert advice to the contrary, I am satisfied that it would not be in the public interest for you to continue to hold a licence which authorises the possession and use of firearms. 6 An internal review by the Commissioner upheld the revocation of TI's licence. In conducting the review, the Commissioner took into consideration further medical evidence provided by TI. On the basis of this evidence, the Commissioner found that TI had voluntarily stopped taking medication to treat his depression without professional medical consultation. 7 On this basis, the Commissioner upheld the initial finding that it would not be in the public interest for TI's to continue to hold a firearms licence. He made a further finding that in light of TI's history of depression and apparent decision to cease medication without professional medical consultation, there was reasonable cause to believe that he may not personally exercise continuous and responsible control over firearms due to unsound mind. 8 On 31 May 2005, TI lodged an application at the Tribunal to review this decision. Review decision 9 In this case, the Tribunal is undertaking a review of the merits of the original decision. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It then confirms the original decision, varies it, or sets it aside and substitutes another decision. (Section 63 Administrative Decisions Tribunal Act 1997 (NSW)) 10 The Tribunal makes its own decision in place of that of the Commissioner of Police and there is no presumption that the decision of the Commissioner is correct. (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.) 11 The Commissioner revoked TI's Category AB Firearms licence for two reasons: he found that it was not be in the public interest for TI to continue to hold a licence which authorises the possession and use of firearms and he found that there was reasonable cause to believe that TI may not personally exercise continuous and responsible control over firearms due to unsound mind. Power to revoke a firearms licence 12 Section 24 of the Firearms Act 1996 allows a firearms licence to be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. 13 Section 11 of the Firearms Act 1996 provides that a firearms 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 the applicant's being of unsound mind. 14 Section 24 of the Firearms Act 1995 further provides that a licence may be revoked for any reason prescribed by the regulations. 15 Section 17 of the Firearms (General) Regulation 1997 states that in accordance with section 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. Public interest 16 At the Tribunal hearing, Senior Constable Sutton gave evidence in relation to the events taking place on 5 May 2004. He was cross-examined on his evidence by TI. Senior Constable Sutton stated that upon alighting from the police car at Gordon Police Station, TI tripped over a police baton and then stopped to pick it up. Senior Constable Sutton then took the baton from TI, put him on the floor and once he had calmed down, took him for a further breath analysis, which returned a negative reading of 0.04. In response to Senior Constable Sutton's question as to whether he was on any medication, TI advised that he was taking medication for depression. TI was not charged and Senior Constable Dillon, who was not available to give evidence at the Tribunal, then drove TI home. 17 TI gave evidence that he is a justice of the peace, is employed as a consultant engineer, and has no criminal record. 18 In relation to the events on 5 May 2004, he agreed with the evidence of Senior Constable Sutton that he had tripped over a police baton when stepping out of the police car and had leant down to pick it up. He was then grabbed by the two police officers and pushed to the floor. He agreed that Senior Constable Dillon drove him home after he was released from the police station without charge. 19 TI agreed that he was being treated for a reaction depression at the time of this event, following his divorce, his retrenchment and court litigation in relation to the construction of a house. He denied that he ceased taking medication without medical advice. 20 Progress notes by TI's treating doctor document the doctor's treatment with TI in relation to his depression. In July 2004, the doctor documents that she and TI "discussed decreasing Zoloft". A lower dose of Zoloft was prescribed by the doctor at this appointment. Follow up notes from December 2004 confirm that TI had ceased taking Zoloft in July 2004. 21 A psychiatric report for TI dated 29 June 2005 by Dr Klug assessed the clinical notes of TI's general practitioner and stated as follows: From these notes, it is reasonable to assess that he has suffered from an adjustment disorder with features of depression. An adjustment disorder is not a major mood disorder but is nevertheless a significant psychiatric entity characterized by excessive distress and/ or dysfunction in response to a specific stressor or stressors. There is no prior history of psychiatric disorder or of admission to psychiatric hospitals or of treatment from mental health professionals. [TI] presented as a pleasant, well-dressed, neatly attired and well-kempt man. He was co-operative and gave a coherent, internally consistent and spontaneous history. His affect and mood were both normal. There was no evidence of psychosis and, in particular, nothing to suggest delusions, auditory hallucinations, passivity phenomena, ideas of reference or formal thought disorder. There is nothing to indicate that he harboured suicidal or homicidal ideation or intent. He was cognitively intact and appeared to be of high average intelligence. He seemed to display normal judgement and insight. On interview [TI] presented normally. There was nothing to indicate psychiatric illness. He appeared to display normal judgement and insight and described self-recrimination about his behaviour at the time. 22 Under cross-examination at the Tribunal, Dr Klug confirmed that the medication that had been taken by TI is a widely used anti-depressant to treat an adjustment disorder brought on by life-stressors. The doctor had no concerns that TI had ceased taking medication on the basis that he had been well prior to the cessation of the medication. 23 Mr Pisani for the Police Commissioner stated that there remained a concern that the earlier stressors may come back into TI's life and that a revival of the depression may re-occur. 24 The Appeal Panel of this Tribunal considered the meaning of "public interest" in the context of the Security Industry Act in Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at 25). In that case the Appeal Panel stated 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. 25 The evidence establishes that TI has had depression for which he was treated and from which he has now recovered. The evidence in relation to the incident at Gordon Police Station on 5 May 2005 does not, in my view, establish that TI suffers from erratic behaviour which may lead to the conclusion that it would not be in the public interest for him to continue to hold a category AB firearms licence. From the evidence, this incident occurred as a result of a misunderstanding. TI tripped over a police baton and once he picked it up, the police officers, seeing him in possession of the baton, overpowered him. TI's reaction was one of shock at being overpowered. The fact that one of the police officers later drove TI home, alone, shows that the police officer showed little concern that TI might display a further instance of the alleged erratic behaviour. There is no public interest in revoking TI's licence in circumstances where the incident at Gordon Police Station does not display that TI is a risk to public safety, where he has recovered from previous depression and where there is no evidence that he may suffer similar episodes of depression at some time in the future. Unsound mind 26 In Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 185 the Tribunal examined the meaning of the phrase "unsound mind" and made the following observations: In interpreting the phrase "unsound mind" the ordinary grammatical meaning of the phrase must be applied. "Unsound" is defined in the Macquarie Dictionary, 3rd edition, The Macquarie Library, as "not sound; diseased, as the body or mind." 27 In Herbohn v NZI Life Ltd [1998] QSC 122 (12 June 1998) WC Lee J gives a useful exposition of the meaning of "unsound mind." His Honour said that: Mayo J. in Pointon v. Walkley [1951] S.A.S.R. 121 at 125, when concerned with the meaning of "unsound mind" for the purposes of a limitation statute . . . said: "`Unsound' is the anthesis of `Sound'. `Sound', when used in connection with body or mind, denotes the presence of perfect health or, putting it another way, the absence of all defects other than those that are trivial. A sound person is one without the sign of disease, malady or unhealthy abnormality. When seeking to ascertain the meaning of the words "unsound mind" in a statute, they must be construed in relation to the subject matter with which the statute is dealing and their place within it: Kirby v. Leather [1965] 2 Q.B. 367 per Lord Denning M.R. at 383 where the Master of the Rolls said that for the purposes of that statute, a person is of unsound mind if he is incapable of managing his affairs as a reasonable man would do; King v. Coupland . So also with the expression "mental condition" which, according to Slattery J. in Kotulski v. Attard (1981) 1 N.S.TI.L.R. 115 at 118 was "meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise will power to control physical acts in accordance with rational judgment". 28 One of the principles of the Firearms Act 1996, as set out in s 3(1)(a), is to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety. The term "unsound mind" must be interpreted in the context of this principle. 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 the possession or use of a firearm. 29 Dr Klug's evidence of TI's mental state is that he presents normally and there is no evidence that he will suffer a relapse of depression. In those circumstances, he is not of unsound mind. Consequently, the Commissioner's decision to revoke his licence on this ground is not justified. Orders The decision of the Commissioner is set aside.