Administrative Decisions Tribunal New South Wales Medium Neutral Citation: George v Commissioner of Police, NSW Police Force [2013] NSWADT 1 Hearing dates: 20 December 2012 Decision date: 08 January 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: 1. The Tribunal orders that the Commissioner's decision to revoke the Applicant's firearms licence be set aside. 2. Any submissions on the issue of costs are to be filed and served by 31 January 2013. Catchwords: Firearms Act - firearms licence - revocation of licence or permit Legislation Cited: Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Firearms Regulation 2006 Cases Cited: Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266 Director of Public Prosecutions v Smith (1991) 1 VR 63 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 Ward v Commissioner of Police [2000] NSWADT 28 Category: Principal judgment Parties: Michael George (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: M George (Applicant in person) Sparke Helmore (Respondent) File Number(s): 123241 REasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): Mr George ("the Applicant") was the holder of a Category AB firearms licence issued under the Firearms Act 1996 ("the Act"). The current licence was issued in July 2008 and is due to expire in July 2013. The licence was revoked in July 2012. 2The revocation was affirmed on internal review and the Applicant applied to the Tribunal for external review of the decision. 3The matter came before me for hearing on 20 December 2012. Background 4The background to this matter is not in dispute. The dispute lies in the interpretation of certain events and the significance to be attributed to them. 5The Applicant has been authorised for firearms in NSW, without reported blemish, from at least 6 January 1990. He has held a Category AB firearms licence for the genuine reasons of Target Shooting and Recreational Hunting/Vermin Control. There were eight firearms registered to the licence when it was suspended on 22 March 2012 (six Category A firearms and two Category B firearms). 6Police inspected and approved the Applicant's firearms safekeeping facility and audited the Applicant's firearms on 29 July 2003 and 24 May 2010 and found no breach. 7The incident that gave rise to the action by the Respondent concerned a phone call by the Applicant to the Albury Base Hospital on 21 March 2012 ("the 21 March 2012 conversation"). In the phone call the Applicant sought to access help to relieve his intense physical pain. His call was transferred to the Mental Health Access Line - a service staffed by mental health professionals. During that call the Applicant explained his circumstances to the officer who dealt with his call and she arranged for an ambulance to collect him and take him to hospital. 8Also during the 21 March 2012 conversation the Applicant made disparaging comments about a locum doctor ("the locum doctor") who he had seen in relation to his pain and who had refused to prescribe the necessary medication to relieve his pain. He also indicated that his pain was intense and that he was unable to tolerate it much longer. The officer who dealt with the call interpreted his remarks as suggesting that he was either contemplating suicide or that he was making threats towards the doctor, or both. 9It seems that the call was referred to police who attend the Applicant's residence and seized the Applicant's firearms. 10The Firearms Registry was subsequently notified that the Applicant might pose a threat if in possession of firearms. It was indicated that the Applicant was depressed and that he wanted to kill the locum doctor. 11The Applicant's firearms licence was suspended on 22 March 2012 and the Applicant was requested to provide a mental health assessment by a registered psychiatrist or psychologist. 12The Applicant subsequently lodged a complaint against the locum doctor with the NSW Health Care Complaints Commission ("the HCCC"). On 6 July 2012, after that complaint to the HCCC, the locum doctor wrote to the Firearms Registry and expressed concerns about the Applicant's access to firearms. No basis was given for that opinion. 13The licence was revoked in 12 July 2012. The Applicable Law 14Section 24(2)(d) of the Act prescribes that a licence may be revoked for any other reason prescribed by the Firearms Regulation 2006 ("the Regulation"). Clause 19 of the Regulation prescribes that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence. 15The term 'public interest' is not defined in the Act or Regulation. 16In Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9, a case concerning similar provisions in the Security Industry Act, the Appeal Panel said at [25] that the public interest is: "... an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing whether to exercise their discretion adversely to an individual." 17The purpose of a reference in legislation to the public interest is to ensure the private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Limited v O'Connor and Ors (1995) 131 ALR 657 at 681. The relevant interest is therefore the interest of the public as distinct from the interest of an individual or individuals: Director of Public Prosecutions v Smith (1991) 1 VR 63. 18A discretion to issue or revoke a licence must be exercised having regard to the licensed activities. Thus the objects and purposes of the Act are relevant. 19In Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266 at [21] the Tribunal said: "The objects and principles of the Act state that the firearms are a privilege and inherent in the requirements is that persons who have access to firearms must act responsibly. Where there has been or is a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. The principle issue then is whether there is a risk to the safety of the public if Mr Albury retains the licence." 20In Ward v Commissioner of Police [2000] NSWADT 28 at [27 - 28] the Tribunal said: "One of the objects of the Act as set out in Section 3 is to 'confirm firearm possession and use as being a privilege that is conditioned on the overriding need to ensure public safety'. In determining whether Mr Ward is a fit and proper person to hold a license consideration must be given to the circumstances surrounding his conviction for assault. The question for the Tribunal is whether, based on all of the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 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." 21The issue for determination is, therefore, whether, in the light of the evidence concerning the Applicant's health, it is not in the public interest that he continue to hold a firearms licence. The evidence 22The Respondent relies on a bundle of documents filed pursuant to section 58 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). 23The Respondent also relies on an audio recording of the 21 March 2012 conversation. 24A number of reports are in evidence. The Applicant's regular GP, Dr. C. J. Reddy, appeared at the hearing by telephone, gave evidence and was cross-examined. 25The Applicant met the request for a mental health assessment by providing a report by a Clinical & Forensic Psychologist, Dr Susette Sowden. 26Dr Sowden's report was dated 7 June 2012 and it received by the Firearms Registry on 18 June 2012. 27In the opinion of Dr Sowden, consideration could be given to reinstating the Applicant's firearms licence and returning the Applicant's firearms once specific questions have been resolved relating to the Applicant's pain management. 28The Applicant's firearms licence was revoked on 12 July 2012. At that time the Registry's records reflected that no assessment of the Applicant's mental health had been received. This was despite the fact that Dr Sowden's report had been received on 18 June 2012. 29The Applicant met the pain management issues raised by Dr Sowden by a report from Dr B A Todhunter, Specialist in Anaesthesia and Pain Medicine. Dr Todhunter's report is in evidence. 30Dr Todhunter advised that: [The Applicant's] state of mind in my opinion was stable and his responses to questions rational and logical and he did not exhibit any violent or aggressive behaviour and seemed to be quite accepting of my advice regarding his pain from a general point of view. His pain has been better controlled since he was commenced on a Norspan patch which is an opiate drug Buprenorphine absorbed through the skin. In terms of having chronic pain I do not believe that there is any contraindication to him possessing a gun licence in that in retrospect there does not appear to have been any history of violence and his reaction when talking to the person on the telephone to whom he was directed when he was seeking help for l pain suggests he revisit the hospital and see the Doctor who had just refused to give him any pain medication hence his frustration and at no time did he actually suggest he would cause anybody any harm. 31The Firearms Registry formed the view that Dr Todhunter had not dealt with all questions that Dr Sowden had raised regarding the Applicant's pain management. 32The Applicant met those matters by way of a report by Dr Daniel Lee, a specialist in rehabilitation medicine and pain management. Dr Lee's report is in evidence. 33Dr Lee advised that: ... 2. [The Applicant's] current medications includes Progout 300 mg once daily, Hypnodorm four tablets at nighttime 1 mg and Zyloprim one at nighttime. He has ceased the Norspan (Buprenorphine) patch as of the 3rd of October. This has not led to any significance difference in his pain. 3. Likelihood of this medication being continued. Mr George has ceased this medication. 4. The effect of this medication on firearms. Norspan patch is a mild opiold medication. This would not change his ability to cope with firearms. 5. The effect of failure to take these medications on firearms. The medication has no effect. This has no effect on his ability to cope with firearms. Overall, Mr Michael George has had a firearm licence for many years. It seems that his firearms were removed as a result of misunderstanding when he had significant pain as well as apparently an increased temperature, which may have caused a delirium. From a pain medicine point of view, he has ceased his Norspan patch and his pain is not significantly different. I would view him as no more or no less safe than previously when he has his gun licence. He denies any recent history of assault, illegal behaviour, or forensic history. I noted his manner to be overall nervous and agitated. 34The Applicant also provided a certificate by Dr. Reddy. Dr Reddy advised that he had seen the Applicant and reported that he is in good physical and mental health and not suffering from any pain since he stopped using the norspan patch. In his opinion the Applicant does not require any norspan patch or any other narcotic medication for pain management. His evidence at the hearing was consistent with the view he expressed in his certificate. 35Mr Zoppo, solicitor for the Respondent, pointed to the Applicant's criminal record. A copy of that record is contained within the material filed by the Respondent. It is not in dispute that the Applicant has convictions for violent conduct that were recorded in the 1970s and 1980s. The Applicant also has a very poor traffic record. He was convicted of four offences for driving under the influence of alcohol and a number of offences for speeding. 36There is no suggestion of any misconduct in relation to the use or storage of his firearms. Consideration 37This is a matter in which a misunderstanding has lead to significant inconvenience and expense to the Applicant. 38A copy of the recording of the 21 March 2012 conversation is in evidence. It is readily apparent from the recording that at no stage during that conversation did the Applicant make any threat to harm himself or any other person. He was in severe pain, frustrated by the lack of assistance offered by the locum doctor and unable to find a solution. 39It is clear from the recording that the mental health professional was acting prudently in addressing the fact that the Applicant possessed firearms. She was acting in circumstances of high stress and she adopted the correct approach in ascertaining that the Applicant was in possession of firearms and then bringing the information to the Respondent's attention. 40Dr Todhunter and Dr Lee have correctly identified the misunderstanding in those parts of their reports that I have quoted above. In my view, the Applicant made no threats to harm himself or any other person. In this regard I disagree with the Respondent. As Dr Lee observed, it seems that his firearms were removed as a result of a misunderstanding. I agree with Dr Lee's view that the Applicant is no more or no less safe than previously when he has his gun licence. 41As noted above, the notification by the locum doctor was made following a complaint about him to the HCCC. In the circumstances, I give no weight to the notification by the locum doctor. 42While some weight should be given to the Applicant's criminal record and poor driving record, I do not regard those issues as warranting sufficient weight to result in the revocation of the Applicant's firearms licence. 43In the light of the totality of the material I am satisfied that there is virtually no risk should the Applicant continue to hold a firearms licence. In my view, the decision under review is incorrect. It should therefore be set aside. The actions of the Firearms Registry 44In my view, some comment is warranted in regard to the approach taken by the Firearms Registry in regard to this matter. 45Mr Zoppo has listened to the recording of the 21 March 2012 conversation but there must be doubt about whether anyone in the Firearms Registry listened to it before taking action in relation to the Applicant's firearms licence. Had they done so, the Applicant may have been spared the inconvenience and expense of having to bring this application. 46The consequences of the Firearms Registry's failure to note the contents of the conversation were compounded by the failure of the decision maker to take Dr Sowden's report into consideration prior to the decision to revoke the Applicant's firearms licence. As noted above, the Firearms Registry received that report almost a month prior to its decision. Those issues should have been addressed at the internal review stage but regrettably that did not occur. 47There is no doubt that the Applicant has held a firearms licence without incident for over 20 years. The Respondent has alleged that changed circumstances warranted the revocation of the licence. It is my view that the Respondent should have checked the accuracy of the basis for its assertion before revoking the licence. There was ample time during the period of suspension of the licence for it to do so. 48The Applicant asserted that he had not made threats of harm to himself or to anyone else. In my view, the Respondent should have established that he had in fact made those threats. Instead, it insisted that it was for the Applicant to show that he had not done so. It would have been a relatively simple process for the decision maker to listen to the recording of the 21 March 2012 conversation. 49It appears that the internal reviewer did not look past the errors in the Respondent's record to make the finding against the Applicant: I cannot be satisfied that both police records and the notification to the Registry are incorrect, and you made no threats to harm any person. 50As a consequence, the Applicant has been put to considerable expense. He initially engaged the services of a solicitor but the cost of maintaining that assistance became prohibitive. In the circumstances, I invite the parties to make submissions in regard to whether an order for costs should be made in the Applicant's favour. 51Any submissions on the issue of costs are to be filed and served by 31 January 2013. Orders 1. The Tribunal orders that the Commissioner's decision to revoke the Applicant's firearms licence be set aside. 2. Any submissions on the issue of costs are to be filed and served by 31 January 2013. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 January 2013