AIE v Commissioner of Police, NSW Police Force [2012] NSWADT 18

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AIE v Commissioner of Police, NSW Police Force [2012] NSWADT 18 Hearing dates: 2 November 2011 Decision date: 09 February 2012 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: The Commissioner's decision to revoke AIE's Category AB firearms licence is confirmed. Catchwords: Firearms Act 1996 - revocation of firearms licence - public interest Legislation Cited: Firearms Act 1996 Firearms Regulation 2006 Cases Cited: Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266 Comalco Aluminium (Bell Bay) Limited v O'Connor and Ors (1995) 131 ALR 657 Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9 Director of Public Prosecutions v Smith (1991) 1 VR 63 Ward v Commissioner of Police (2000) NSWADT 28 Category: Principal judgment Parties: AIE (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel G Brady Nyman Gibson Stewart (Applicant) Sparke Helmore (Respondent) File Number(s): 113040 Publication restriction: s75 of the Administrative Decisions Tribunal Act 1997 applies

Reasons for decision

Introduction 1 [GENERAL DIVISION, P H Molony, Judicial Member] AIE is a 42 year old married man, with children, who runs his own security business. He was the holder of a Category AB Firearms Licence. 2 On 6 June 2010 while at premises for which his firm provided security (albeit for social purposes of his own), AIE, when saying goodnight to his guards, became involved in an altercation with two men who had been refused entry to the hotel. In the course of that altercation he punched one of them, who fell to the ground, hitting his head and sustaining a brain bleed. This man was taken to hospital and placed in an induced coma. His prognosis at that time was uncertain. As a result of this incident, AIE was charged with recklessly causing grievous bodily harm. He at all times maintained that he had acted in self-defence. 3 On 16 June 2010 the New South Wales Police received a disclosure of information by a health professional under section 79 of the Firearms Act 1996 (`the Act') relating to AIE. Section 79 provides - (1) If a health professional is of the opinion that a person to whom the health professional has been providing professional services may pose a threat to public safety (or a threat to the person's own safety) if in possession of a firearm, the health professional may inform the Commissioner of that opinion. (2) A health professional is not subject to any criminal or civil liability, including liability for breaching any duty of confidentiality, if the health professional informs the Commissioner in good faith of the health professional's opinion referred to in subsection (1). (3) In this section: health professional means any of the following persons: (a) a medical practitioner, psychologist, nurse or social worker, (b) a person who provides professional counselling services, (c) a person who is of such other class of health professional as may be prescribed by the regulations. 4 An examination of the notification reveals that the health professional concerned advised Police that AIE had access to his own firearms. In response to a question concerning whether there "is a risk that the medical condition of this person my pose a threat to the public or a threat to their own safety in possession of a firearm," the health professional ticked a box labelled "unknown." 5 In a fax to the Firearms Registry which accompanied the notification a health professional wrote - "New referral to this service after being seen at Gosford ED yesterday. - Suicidal ideation - Has firearm → given bullets to neighbour. - Security guard. - Lives with partner & 3 kids." 6 In his evidence to the Tribunal AIE said that following the incident on 8 June 2008, and while the man he had hit remained in a coma, he had experienced anxiety and panic attacks. The prospect that the man might not recover, or might die, and the likely consequences to himself and his family weighed heavily on him. He did not want to go to prison. 7 AIE said that while he did not think about suicide at that time, he did think about not thinking about it. As a precaution, he removed his ammunition from his home and placed it in the custody of a friend. The anxiety also led him to seek medical help, by presenting at Gosford Hospital. It was following his presentation there that a health professional sent the notification to the Firearms Registry. 8 The next day AIE's firearms licence was suspended. On 18 June 2011 the Firearms Registry wrote to AIE advising it had "received information that you have made threats of self harm." It requested that he provide a report from a doctor, psychiatrist or psychologist to enable his suitability to continue to hold a firearms licence to be assessed. 9 On 29 October 2010 the AIE's licence was revoked by a delegate of the Commissioner on the basis of the serious criminal charges that he had been charged with, as well as the concerns held by the Delegate about his mental health. The licence was revoked in accordance with Clause 19 of the Firearms Regulation 2006 on the basis that it was not in the public interest for AIE to continue to hold his firearms licence. 10 AIE made an application for internal review of the decision to revoke his firearms licence. The internal review was completed in 19 January 2011. The decision of the delegate was affirmed on two bases: ·