Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Leviny v Commissioner of Police, NSW Police Force [2013] NSWADT 62 Hearing dates: 15 March 2013 Decision date: 20 March 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision to revoke the Applicant's firearms licence is affirmed Catchwords: Firearms Act - firearms licence - revocation of licence 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 Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 FB v Commissioner of Police, NSW Police Service [2003] NSWADT 28 Hill -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 Huckel v Commissioner of Police, NSW Police Force [2008] NSWADT 347 Livadaru v Commissioner of Police [2008] NSWADT 160 O'Donnell v Commissioner of Police, New South Wales [2009] NSWADT 162 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Category: Principal judgment Parties: Geoffrey Leviny (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: G Leviny (Applicant in person) Bartier Perry (Respondent) File Number(s): 123217 reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application by Mr Leviny ("the Applicant") for review of a decision taken under the Firearms Act 1996 ("the Act") by a delegate of the Commissioner of Police ("the Respondent"). The decision was to revoke the Applicant's firearms licence. The decision was confirmed in an internal review and the Applicant has applied to the Tribunal for external review. 2The Respondent's decision to revoke the Applicant's firearms licence was made on the ground that it is not in the public interest that the Applicant continues to hold a firearm licence. 3The Respondent also relied on section 11(4)(b) of the Act which requires that a licence not be issued if there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of any previous attempt by the Applicant to commit suicide or cause a self-inflicted injury. If such a belief is held, section 24(2)(a) of the Act allows the Commissioner to revoke the firearms licence. 4The Respondent also expressed concern that the Applicant may not always comply with the safe storage requirements of his firearms licence in breach of the general requirements of section 39 and of section 40(1)(a) of the Act. Background 5The parties are in general agreement about the events that lead to the decision to revoke the Applicant's licence. The significant area of disagreement concerns the Applicant's actions on 7 June 2012 and the nature of discussions, on 8 June 2012, between the Applicant's wife, Mrs Juliet Leviny, and the Applicant's General Practitioner, Dr David Hope. 6Mr Mattson, solicitor for the Respondent, filed written submissions, which included the Respondent's understanding of the chronology of events. On 30 June 1998, the Applicant obtained a category AB firearms licence. The Applicant is a farmer and sometime inventor. The Applicant claims to have created an invention that has solved the energy crisis and global warming ('Invention'). On or about 7 June 2012, the Applicant had shot a hare and then returned to his home to have dinner. Rather than return his firearms to its locked storage unit, the Applicant placed the firearms in a cupboard. Later on 7 June 2012, the Applicant was frustrated about obtaining a patent over his Invention. The Applicant then took the firearm, placed it under his chin and said words to the effect: "I might as well blow my brains out". The threat of self-harm by the Applicant was committed in front of Mrs Leviny. Mrs Leviny is not a licensed firearm holder. Subsequent to the threat of self harm, Mrs Leviny took the Applicant's firearms from the unlocked cupboard and hid them under the bed without the knowledge of the Applicant. On 8 June 2012 Mrs Leviny contacted Dr Hope and advised him of the Applicant's threat of self-harm. Mrs Leviny informed Dr Hope that she and the Applicant would be absent from the house that day and that she had hidden the firearms under the bed. Pursuant to section 79 of the Act, Dr Hope then telephoned the Police. The desire of Mrs Leviny was that the police would confiscate the firearms she had hidden from the Applicant. At approximately 10pm on 8 June 2012 Senior Constables Jeffcoat and Robinson attended the Applicant's residence. When arriving at the residence Mrs Leviny informed the officers that they were suppose to have come earlier in the day, whilst she and the Applicant were not home, to remove the guns she had hidden. Mrs Leviny then took Senior Constable Robinson into the bedroom where she removed the firearms from under the bed, handed them to Senior Constable Robinson and asked if he could remove the firearms from the house without the Applicant seeing. During this time, Senior Constable Jeffcoat was inside the house and spoke with the Applicant. Senior Constable Jeffcoat explained to the Applicant that they had come to collect his firearms because of his attempt at self-harm the previous day and concerns for his welfare. During this conversation about the self-harm incident the Applicant did not deny that he had placed the firearm under his chin but rather said: "I wasn't going to do it, I thought about what I was doing and decided it wasn't worth it". On 9 June 2012, Senior Constable Jeffcoat returned to the Applicant's premises to seize and suspend his firearms licence. On 13 June 2012 the Applicant wrote to the Respondent seeking to have his licence returned. The Applicant stated: "My doctor David Hope of Yamba responded to comments made to him by my wife, Juliet, on Friday June 8th that I might be at risk of self-harm ... the reported concern about myself was a one off event ..." On 18 June 2012, the Respondent revoked the Applicant's firearm licence. On 22 June 2012, the Applicant contacted Dr Hope because he was suffering from "Anxiety/Depression". Accordingly, Dr David Hope referred the Applicant to Dr Stephen Huntsman, psychiatrist. In referring the Applicant to Dr Huntsman, Dr Hope noted the Applicant's medical history. That history indicated that the Applicant had suffered from Dementia in 2004. Additionally Dr Hope asked Dr Huntsman: "I seek your opinion regarding FIREARM REVOKED LETTER ENCL ? FIT TO REGAIN LICENCE" On 24 June 2012 the Applicant requested an internal review of the decision to revoke his firearm licence. On 24 July 2012, the Respondent reviewed and confirmed the decision to revoke the Applicant's firearm licence. On 7 September 2012, the Applicant met with Dr Huntsman who provided a report and provisional diagnosis of the Applicant. 7The Applicant does not agree with significant parts of the Respondent's chronology. He has denied that he placed the barrel of a rifle underneath his chin with the intention of pulling the trigger. He concedes that he said words to the effect that he might as well blow his brains out. However he denies having held a firearm at the time that he made the statement or that he ever held a firearm to his chin. He asserted that the comment was merely a simple statement of frustration in being unable to find a solution to a problem concerning his Invention. 8Mrs Leviny denies that she advised Dr Hope that the Applicant had threatened self-harm in her presence. 9Mrs Leviny asserted that she did not see the Applicant with a gun in his hand at any time on 7 June 2012. She further asserted that in the 30 years she has known the Applicant she has never seen him put a gun to his body, under his chin or anywhere threatening near his person. 10She concedes that she had a very strong reaction to the Applicant's comment that that he might as well blow his brains out and that when she was very upset when she saw Dr Hope the following day. She accepts that because of the situation Dr Hope may have misunderstood what she said. She maintains that she did not tell Dr Hope that the Applicant had threatened self-harm in her presence but hat she had expressed concern about 'what if he had' done so? 11Mrs Leviny also denies that she advised either of the police officers who attended the residence on 7 June 2012 that the Applicant had threatened self-harm in her presence. Applicable legislation 12The underlying principles of the Act are set out in section 3(1) of the Act. These principles emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. The Act places strict restrictions on the issue and maintenance of a licence. 13Section 24(2)(a) of the Act prescribes that a firearms licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. 14Section 11(4)(b) of the Act prescribes that a licence must not be issued if the Respondent has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's previous attempt to commit suicide or cause a self-inflicted injury. 15Section 24(2)(d) of the Act provides that the Respondent may revoke a firearms licence for any reason provided by the regulations. 16Clause 19 of the Firearms Regulation 2006 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. 17Part 4 of the Act deals with safe storage requirements. Section 39 of the Act requires: 39 General requirement (1) A person who possesses a firearm must take all reasonable precautions to ensure: (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm. Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case. (2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section. 18Section 40 of the Act prescribes how firearms are to be stored: 40 Category A and category B licence requirements (1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies: (a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable, (b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal, (c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner, (d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm, (e) such other requirements relating to security and safe storage as may be prescribed by the regulations. Maximum penalty: 20 penalty units or imprisonment for 12 months, or both. (2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee's possession that are of a standard not less than the requirements set out in this section. The Respondent's case 19The Respondent relies on a bundle of material filed pursuant to section 58 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") as well as statements by Dr David Hope, Senior Constable Adam Robinson and Senior Constable Bryce Jeffcoat. Senior Constables Robinson and Jeffcoat attended the hearing, gave evidence and were cross-examined. Dr Hope appeared by telephone and was cross-examined. 20In his written statement Dr Hope stated: I know both Geoffrey and Juliet Leviny of Palmers Island. On about the 8th of June, 2012, I spoke to Mrs Juliet Leviny. She told me that her husband had been developing an invention, and had suffered a disappointment regarding the invention. She then saw him take one of his guns and put it under his chin, saying, "I might as well kill myself". I understood that this had occurred the previous day. Mrs Leviny told me that she and her husband would be absent from the house that day, and that she had hidden her husband's guns. I rang and reported the conversation to the local Police. I understood that they would attend the house that day. I was later told the Police actually attended the house later that night. I am obliged under section 79 of the Firearms Act 1996 to report attempts at self harm to the Commissioner of Police. 21Under cross-examination he did not accept that his recollection of what Mrs Leviny had told him was incorrect. It is his opinion that the Applicant should not be permitted to continue to hold a firearm licence. 22Senior Constables Robinson and Jeffcoat each gave written statements in which they described attending at the Applicant's property to seize the Applicant's firearms. 23Senior Constable Jeffcoat stated that Senior Constable McKay told him about the call from Dr Hope in which Dr Hope had indicated that Mrs Leviny had informed him that the Applicant had removed a firearm from his safe and placed it under his chin with the intention of committing suicide. Senior Constable Jeffcoat stated that he understood that Mrs Leviny had witnessed the incident, and, as a result, she had hidden the firearms from the Applicant and contacted Dr Hope. Senior Constable Jeffcoat said that Senior Constable McKay had intended to attend the house but was unable to get there, so he asked Senior Constable Jeffcoat to attend and to seize the firearms. 24Senior Constable Jeffcoat stated that About 10pm on Friday the 8 June 2012, Senior Constable Robinson and I attended [the Applicant's premises]. As we drove up to the premises, the garage door opened and I saw Mrs Leviny standing inside ... It appeared to me that she had been expecting us. I had a short discussion with Mrs Leviny in the garage where she confirmed that Mr Leviny had the day before placed the firearm under his chin and threatened self harm and that she had given instructions for Police to attend the premises and remove the firearms when they were both absent. I saw the firearms storage facility in the garage but I did not inspect it. Mrs Leviny took Senior Constable Robinson and I into the house and I saw Mr Leviny sitting on the lounge watching television. I believe he was wearing a set of head phones to enable him to listen to the television. I spoke with Mr Leviny regarding what had taken place the previous day. Although I do not recall all of the exact conversation, I recall saying, "We've had some information that you may have tried to commit self harm with a firearm. We understand you placed the firearm under your chin and said 'I might as well kill myself'. We're going to seize the firearms. We're concerned for your welfare." Mr Leviny never denied that he had placed a firearm under his chin. I recall Mr Leviny saying words to the effect of, "I wasn't going to do It, I thought about what I was doing and decided It wasn't worth it". ... I remained in the study with Mr Leviny and had further discussions with him whilst Senior Constable Robinson attended to the seizure of the firearms in a separate room. ... A short time later Senior Constable Robinson returned and he indicated to me that he had removed the firearms. We all returned to the lounge room area. I explained the process to Mr Leviny regarding the return of his firearms. ... The following day on 9 June 2012 I rang and spoke to Mrs Leviny and made arrangements to attend and seize Mr Leviny's firearms licence. Mrs Leviny was pleasant, and she did not make any complaints about the actions of Police the previous night, or claim that the Police had misunderstood her instructions. The following evening of 9 June 2012 I returned to the premises and issued a firearms licence suspension notice to Mr Leviny, and took possession of his photographic shooters licence. ... I am led to believe that Mrs Leviny is supporting Mr Leviny in his denial of the incident. I understand Mrs Leviny now says: I state that at no time did I see my husband with a firearm that day. My husband did not hold a firearm in my presence that day'. Mrs Leviny never stated or conveyed those remarks to me; rather to the contrary. Mrs Leviny told me of the incident. Mrs Leviny did not deny that the attempted self harm incident took place on either occasion when I spoke to her. She appeared to be expecting us when we arrived at the property. She told me she expected us to attend her property in her absence to remove the firearms. I am told by Senior Constable Robinson that he seized the firearms from under a bed where they were pointed out to him by Mrs Leviny. When I spoke to her on 9 June 2012 she did not say or suggest to me that the self harm incident did not take place, or that Police had acted inappropriately. In fact, when we seized the firearms, I would describe her as appearing relieved. ... 25In regard to the seizure of the Applicant's firearms Senior Constable Robinson stated that Jeffcoat and I followed Geoffrey into the study where he showed us an invention of his. He told us that he had been working on the invention for some years, and that due to the Patent on the invention due to run-out, he was very concerned and stressed. He was communicating well and appeared to be calm. Mrs Leviny lead me to her bedroom where she had two rifles hidden under the bed. She pointed to the bottom end of the bed and told me words to the effect of, "I've hidden the guns here under the bed. I was worried my husband was going to do something silly. Can you get them out of the house without my husband seeing cause it will upset him?" Mrs Leviny got down on the ground and dragged two rifles out from under the bed. I then carried the two rifles out of the house and secured them in our vehicle. I came back inside and continued speaking to Jeffcoat and Geoffrey. Jeffcoat explained to Geoffrey what was happening with the firearms. Geoffrey told us that he needed the firearms for shooting the occasional fox and other vermin that sometimes comes onto his property. Jeffcoat and I left a short time later with the firearms. 26The Respondent relies on a report by a consultant psychiatrist Dr Stephen Huntsman. Dr Hope had referred the Applicant to Dr Huntsman. In particular, Mr Mattson referred to the following comments made by Dr Huntsman Provisional Diagnosis There are two possibilities: Either Mr Leveny (sic) is a genius who has solved the energy crisis or he suffers from delusional disorder, grandiose type. I am not an engineer and therefore in no position to evaluate which of these two possibilities applies. The proof will be in the success or otherwise of his invention, Management There would be a case for a trial of antipsychotic medication, such as Zyprexa, as an alternative to Serepax at times of stress and anxiety. This has the advantage of not being addictive. The Administrative Appeals Tribunal (sic) will no doubt make up their own mind in relation to his firearms licence. My experience has been they are typically inclined to err on the side of safety, as they should. Hopefully Mr Leveny (sic) will be successful with his Invention and have no need of firearms in the future. 27The Respondent contends that the report of Dr Huntsman confirms that the Applicant is not fit to hold a firearms licence by virtue of the fact that he has not stated that there is virtually no risk if the Applicant was to hold a firearm's licence or endorsed the Applicant holding a licence. Rather Dr Huntsman has confirmed that the Tribunal will usually "err on the side of safety" and concludes with his professional opinion and hope, that the Applicant will have "no need of firearms in the future". 28Mr Mattson submits that the obligation on a licensee to take all reasonable precautions to meet safe keeping requirements is a heavy onus. The Act prescribes how firearms are to be stored. He says that In this case, Mrs Leviny, not a licence holder, came into possession of the firearms. 29As noted above, section 40 of the Act prescribes how firearms are to be stored. Mr Mattson submits that the Applicant did not comply with those requirements in that, on finishing using the firearm, he did not return it to the safe, but placed it in the cupboard. 30Mr Mattson submits that the objects of the Act command that firearms and ammunition are stored safely. He submits that the intention of the legislature is apparent from the comments by the late Hon J W Shaw, Attorney General and Minister for Industrial Relations, in the Second Reading speech on 25 June 1996 (at page 3562): The storage requirements are strict as non-compliance can easily compromise safety. For example, if firearms fall into the hands of children or others who are not licenced or trained in their safe use, accidental shootings can occur. And it is crucial to make every attempt to guard against youth suicide and to protect family members from firearms accidents. 31Additionally, the Attorney General in the Second Reading speech stated: Legislation should have the effect of making failure to store firearms in the manner required an offence, as well as a matter that will lead to the cancellation of the licence and the confiscation of all firearms. 32Mr Mattson further submits that if firearms become available in the circumstances of self-harm, the consequences could be dire. In O'Donnell v Commissioner of Police, New South Wales [2009] NSWADT 162 it was said at [32]: 32 ... As started by this Tribunal in Lynch -v- Commissioner of Police, NSW Police (2006) NSWADT 80 "Failure to secure firearms presents the risk that they will fall into the hands of persons who are not licensed or trained in their safe use. The facts in Rosenboom v Commissioner of Police, New South Wales Police [2006] NSWADT 10 provided a particularly tragic example of a youth suicide where a member of the licensee's household used an unsecured firearm. In Dewar v Commissioner of Police, New South Wales Police Service [2003] NSWADT 115 a young person used the licensee's rifle, and ammunition already loaded in the rifle, to shoot at cows in a paddock. The firearm was later given to an adult who was not licensed to possess such a firearm. There are numerous other examples that could be provided to demonstrate the potential for misuse should firearms fall into the wrong hands. Fear of repercussions may also make it unlikely that someone will report a firearm stolen if they are not licensed to own that firearm, or if the firearm was not registered. This adds a further element of risk to the public. ... The risk to the public is not removed simply because a firearm is not operational. Such a firearm can still be used in a hold-up or to threaten someone. A person not familiar with firearms might not make the differentiation between an operational firearm and one that had pieces missing if the firearm was pointed at them. They might reasonably believe that the rifle could cause them damage. There can be no doubt that it could give rise to an apprehension or fear of harm. The storage requirements are strict as non-compliance can easily compromise safety." 33The Respondent also contends that it is not in the public interest that the Applicant retains his firearms licence. Mr Mattson referred to a number of cases that have considered the issue of the public interest. 34In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] the Appeal Panel said that the 'public interest': is an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. 35In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681: The purpose of the reference to 'public interest' is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation. 36In Livadaru v Commissioner of Police [2008] NSWADT 160, Deputy President Handley stated at [54]: In considering the public interest, regard must be had to the underlying principle of the Act, stated in section 3(1), emphasising that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. In Ward, at paragraph 28, Deputy President Hennessy stated in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk." 37Mr Mattson submits that the Tribunal has followed a consistent approach in matters concerning revocation of a licence arising from a self-harm incident. In Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266 I stated: 20 Any past and present conduct that may be relevant in deciding whether Mr Aubrey is a person who deserves the privilege of holding a firearms licence must be reviewed. Any propensity towards offending against the law must be regarded as of crucial importance. I have considered all the material presented by the parties, including the confidential evidence on which the Commissioner relies, and l have taken account of the competing considerations. 21 The objects and principles of the Act state that 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 Aubrey retains the licence. 22 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 to public safety if Mr Aubrey were given access to a firearm. The Commissioner argues that the Tribunal could not be satisfied that Mr Aubrey does not present a danger to public safety and, accordingly, it is not in the public interest for him to continue to hold a firearms licence. I agree with that view. 38The Tribunal has consistently applied the test in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 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. 39Mr Mattson submits that public safety is to be given paramount consideration: Hill -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. The public's right to safety must outweigh an individual's privilege to possess and use a firearm or any financial impact that might flow from the loss of the licence: Huckel v Commissioner of Police, NSW Police Force [2008] NSWADT 347 at [41]. 40Mr Mattson further submits that the Tribunal has also acknowledged the need for an applicant to have sought and successfully completed treatment for his threat of self-harm. For example in cases where treatment has been sought, the Tribunal has held that despite the seeking of that treatment, "it is simply too soon" from the incident/treatment to allow the applicant to hold a firearms licence again. In Rutter v Commissioner of Police (unreported), the Tribunal said that the applicant (who had a long history of being an alcoholic) needed to stay off alcohol for at least three years or in FB v Commissioner of Police, NSW Police Service [2003] NSWADT 28 where the Tribunal held that 1 year from the incident of self-harm was not sufficient to allow the applicant to hold a licence. The Applicant needs to have recognised his problem, obtained appropriate treatment, successfully completed the treatment and had a period without incident. 41A firearm licence enables a person to possess and use firearms. Firearms can be lethal. As said in Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [47]: 47 I also have concerns that depression, alcohol and ready access to firearms could easily prove to be a lethal combination. ... 42Mr Mattson points to the following factors, which the Respondent contends support its decision: The Applicant made a serious threat of self-harm. The threat was not a joke or 'off the cuff comment' but rather one which was taken seriously by his wife. So seriously, that his wife hid the firearms and sought medical assistance for the Applicant. It does not appear that the Applicant has not sought treatment, either through a mental health plan or otherwise, to deal with the threat to take his life. The Applicant has failed to obtain an accurate diagnosis of his mental condition and the cause of his most recent delusions, although he has been prescribed medication for those delusions. The medical report of Dr Huntsman does not provide a basis to say there is virtually no risk to public safety if the Applicant continues to hold a firearm licence. Rather the report concludes: "Hopefully [the Applicant] will ... have no need of firearms in the future" The hiding of the Applicant's firearms by his wife is evidence of the fact that the Applicant is unable to exercise continuous and responsible control over his firearms. Additionally, the Applicant left the two firearms unsecured, for a significant period of time which allowed his wife, who is unlicensed, to gain access to the firearms. Such action by the Applicant demonstrates that he is not taking "all reasonable precautions" to ensure "safe keeping" and that the firearms "do not come into the possession of a person who is not authorised to possess the firearm". It demonstrates a fundamental disregard by the Applicant of his obligations and demonstrates that firearm safety was not forefront in his mind. 43Mr Mattson submits that the apparent failure of the Applicant to acknowledge his mental health issues, seek appropriate treatment and/or the close proximity to the incident also mean it is too soon for the Applicant to be given a firearms licence. The medical evidence has not confirmed that the Applicant is fit to hold a firearm's licence or that there is virtually no risk in the Applicant holding a firearm's licence. Therefore, the Respondent's decision ought to be affirmed. The Applicant's case 44The Applicant relies on his own evidence and that of Mrs Leviny. Each has provided statements and appeared at the hearing, gave evidence and were cross-examined. 45Their evidence is consistent that the Applicant said words to the effect that he might as well blow his brains out but that he did not placed the barrel of a rifle underneath his chin with the intention of pulling the trigger. Mrs Leviny denies that she advised Dr Hope that the Applicant had threatened self-harm in her presence. 46They maintain that there were no other witnesses to the incident of 7 June 2012 and that a misunderstanding by Dr Hope lead to the Respondent's decision. 47Mrs Leviny provided the following outline of the events of 7 June 2012: I had taken both rifles from the safe in the garage through the living room to the bedroom because I had seen a pair of Indian mynah birds outside and wanted to shoot them. After waiting some time a hare come onto the lawn. I loaded the .22 and went outside via the bathroom door and shot the hare. Since the .22 makes a noise that usually frightens things away, I unloaded it and put it and the air rifle away in a cupboard and went back through the family room, where my wife was cooking, to the computer room and checked the emails. I was hoping for one from an engineer about some work on my engine. Since there was not one, I went back to my wife and said to her that I should phone him. She said you must not do that. And a discussion followed to the effect that I did not put requests to him very well and that I would only get his back up. I said. "Well you phone him!" She said. "No I would have to think about what to say." I said words to the effect. "We need it done over the weekend because Monday is a public holiday and this patent expires on Tuesday, and not having the engine working reliably could impede the patent. The argument went on, and rather than defy my wife by making the phone call, I took a break and went to the bedroom to see what had become of the hare or the mynah birds. As I went out the door I mouthed my frustration by saying "I might as well blow my brains out". By this I did not mean that I intended to harm myself, I simply meant that it was a shame someone else was not doing this engine, as I was being totally ineffective in getting cooperation and my time would be better spent if I were out of it doing something else. The argument was a one off event centred on an ongoing test which was simply a backup to the results of eight proofs that had been submitted to the USA patent assessor. Seeing that there was no activity outside I immediately returned to the family room at which time the phone rang. It was the engineer saying that he would do what was needed over the weekend. My wife then served dinner. After this I went into the bedroom at which time it was dark, and found that the rifles were gone and so presumed that my wife had locked them up while I was on the phone. The next day we went to Ballina for a medical appointment for skin cancer check-ups. Sometime after we returned that afternoon my wife said, as best as I can remember; "I saw Dr Hope this morning because I am worried about the stress we are under and I told him that you had said that you might as well blow your brains out." I said "Oh no, he will take that as my wanting to kill myself, and he will get all concerned." She said; "actually he has reported it to the police and they were supposed to have come and taken your rifles while we were away". She said; "I had hidden them and I suppose they will come later." Since there was nothing that could be done, my wife went to bed after dinner and l watched TV. Sometime later my wife came back to me and told me that a car was coming down the drive (1 km long) and that it would probably be the police. It was them, and she greeted them at the door to the garage. After a short exchange the two officers came over to me and one, I don't know which one, told me that they had come to temporarily take my rifles because it had been reported that I had threatened self-harm. I made no reply other than to ask how I would get them back. He said that I should apply straight away for their return. I asked when would I get them back and one of them replied that it would only be for a month. I think he actually said, until the end of the month. Since I had been warned that they were coming, and being aware of what my wife had said to Dr Hope, there was no point in arguing. I did however explain the circumstances of the argument with my wife and show them the reason for my determination to see my engine through and why I was so passionate and the proofs I had, and so I took one of them into the computer room and showed how my engine worked. I understood that the other officer was collecting my rifles at this time. After some time they said that they had to go and they left. The next night they returned saying that they had to take my firearms licence. I said that I understand because otherwise I could go out and get another rifle the next day. I got my licence out of my personal papers locked box and handed it over. Again I was told that I should get this back by writing to the Commissioner of Police, and Senior Constable Bryce Jeffcoat gave me his card. 48Mrs Leviny provided that following explanation: On Thursday June 7th 2012 my husband Geoff and I had been at odds regarding contacting the engineer re his invention on and off most of the afternoon. He said at some stage, " I am going out to shoot some Indian minors." Just prior to 5pm Geoff came into the living area. He did not have any guns with him. He never walked through the house with guns. If for any reason he was interrupted while shooting vermin he would unload the guns and put them temporarily in his cupboard in the dressing room behind clothes. Geoff asked if there had been a phone call from the engineer. He checked his emails and insisted I telephone the engineer for him. This I refused to do. We had a heated argument during which time he said words to the effect, "If you won't help I might as well blow my brains out." With that he left the room and went into the front of the house, slamming the door. At no time did I see Geoff with a gun in his hand on June 7th. At no time did he put a gun to his body, under his chin or anywhere threatening near his person in my presence at anytime in the 30 years I have known him. I finished dinner preparations and turned on the Channel 7 News. Not long after, the phone rang and Geoff came in to speak to the engineer with good news. Geoff was pleased and gradually relaxed. He sat down to watch "The Hot Seat" and unwind. I did not unwind. I became more and more agitated. The constant stress we have been under for years could not go on and by the time dinner was over and I had cleaned up, I was shaking. I started to think about, "What if he had used the gun?" I decided to check on the guns and saw them in the back of the cupboard in the dressing room. I decided to hide one under the bed and the one with the scope behind the curtain so as not to dislodge the scope. I thought this was a pretty pathetic place to put them but could not think of anywhere else. Geoff was in front of the TV and I went to bed. On Friday July 8th at 8am I rang for an appointment to see Dr David Hope. I saw Dr Hope at 11:15. I said words to the effect, "Geoff said he might as well shoot himself last night and I am worried about the stress we are under." I could not stop sobbing and said words to the effect," All I can think about is what if he had put a gun to his head?" Dr Hope advised me to get some counselling and said he would talk to Geoff. I said, "He has an appointment already booked for next Friday." Dr Hope then said words to the effect, "It is mandatory l have to report this to mental health who will want to interview Geoff, and I will have to report to the Police who will have to come and take the guns." I said," I do not think that is necessary to have the guns removed." Dr Hope said, "That is the law, there is no choice. They will have to come and get them as soon as I ring." I said words to the effect, "We have an appointment in Ballina at 2pm and will be leaving as soon as I get home. We will not be home before 4:30. I will leave the house open and the police will find one gun under the bed and one behind the left curtain in the main bedroom which is at the north east corner of the house. They can enter from the veranda." Dr Hope was, and always is very compassionate, considerate and reassuring. I felt much better after seeing him. I have since read the statement of Dr Hope and can absolutely understand that he would have had a very hard time hearing my exact words because I was sobbing so much and finding it hard to speak. I reiterate, my husband did not say he would put a gun under his chin, nor did he put a gun under his chin in front of me on this occasion or any other occasion. 49Both the Applicant and Mrs Leviny gave oral evidence at the hearing that is consistent with their statements. The Applicant denied that he placed the barrel of a rifle underneath his chin with the intention of pulling the trigger. He asserted that the comment was merely a simple statement of frustration in being unable to find a solution to a problem concerning his Invention. 50Mrs Leviny asserted that she did not see the Applicant with a gun in his hand at any time on 7 June 2012. She also denies that she told Dr Hope or police officers anything to the contrary. 51She explained that she had a very strong reaction to the events of 7 June 2012 because of experience that she had suffered earlier in her life and that she was already experiencing severe stress. Her evidence is that her actions on 7 and 8 June 2012 can be explained in that context. 52The Applicant conceded that he left the firearms in a cupboard and that Mrs Leviny gained access to them. However, he does not concede that he failed to comply with the safe keeping requirements of the firearms legislation. Discussion 53Section 63 of the ADT Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 54A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker. 55Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 56As noted above, Mr Mattson has referred me to a number of prior decisions of the Tribunal discussing the legislative requirements. In deciding this matter I have also had regard to those decisions and I note that I am in general agreement with Mr Mattson in regard to the applicable law. 57I have also had regard to the fact that the underlying principles of the Act emphasise the need to ensure public safety. As noted above, the consistently applied test is that set out in Ward v Commissioner of Police. In the context of the Act, the Tribunal must be satisfied that there is virtually no risk to public safety if the Applicant were given access to a firearm. 58It is not in dispute that the decision to revoke the Applicant's firearms licence was a consequence of the discussion between Mrs Leviny and Dr Hope on 8 June 2012. Each has a different recollection of that discussion. Each was a credible witness. 59Dr Hope was definite in his view that the Applicant should not be permitted to have access to firearms. While Dr Huntsman was not direct in his view, it can be inferred from his report that he considers to appropriate that the Tribunal err on the side of caution. 60In my view, it is possible that both Mrs Leviny and Dr Hope are being truthful. It is possible that Dr Hope misunderstood what Mrs Leviny was saying because she was in a state of distress. In any event he acted appropriately in the circumstances. 61However, I do not need to determine that issue because it is my view that the Applicant's failure to secure his firearms has provided sufficient cause to warrant the decision to revoke his firearms licence. 62It was apparent from his own evidence that the Applicant does not understand his obligations as a licensee insofar as they relate to storage of the firearms. 63As noted above, section 40 of the Act prescribes how firearms are to be stored. Section 40(1)(a) provides that a firearm must be stored in a locked receptacle of a type approved by the Commissioner when it is not actually being used or carried. 64The Applicant contends that there can not be a strict interpretation of that requirement because it is not practical to store a firearm in that way at all times that the firearm is not being used or carried. He gave as an example a situation where rabbits have been shot and are being dressed. In that situation a firearm is neither stored nor carried and it is not practical to do so. 65I note that Parliament did not leave the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licences. 66Nevertheless, even if the expression 'use' is given a broad interpretation, it does not alter my view. There is no doubt that the Applicant's firearms were left unsecured or that Mrs Leviny gained access to them and was able to hide them without the Applicant's knowledge. 67The Applicant's evidence was that he was aware on 7 June 2012 that the firearms were not where he had left them and that he assumed that Mrs Leviny had locked them away. However, he concedes that he did not check to see whether they were stored safely. He also conceded that on 8 June 2012 he left the property without having checked whether the firearms were stored safely. He also stated that he stored ammunition other than in the approved storage safe. 68Rather than conceding that he had breached the safe storage requirements the Applicant asserted that he trusts Mrs Leviny and that it is unrealistic to expect strict compliance with the requirements. 69I do not agree with that view. Having weighed the evidence, it is my view that that the gravity of the events of June 2012 and the casual approach that the Applicant has adopted to the safe storage of his firearms outweighs the other relevant factors. I have serious concerns about the Applicant's appreciation of the importance of strict observance of his obligations as a firearms licensee. 70Mr Mattson has referred to some authorities that have dealt with the consequences of failure to meet those requirements. Fortunately there have been no such consequences in this matter. Nevertheless, it is appropriate that the Applicant have some time without a firearms licence in which he can focus his mind on the reason for the requirements and the need for strict compliance. 71At this time I cannot be satisfied that there would be virtually no risk to the public or that the public would be comfortable with the Applicant holding a firearms licence. It follows in my view that the correct and preferable decision is to revoke the Applicant's firearms licence. Accordingly I affirm the Commissioner's decision. 72I am unable to provide any specific guidance as to what I would consider to be sufficient to dispel my concerns. However, I suggest that the Applicant take positive steps to re-educate himself in regard to the legislative regime governing the use of firearms in this State and the importance attached to the storage requirement. 73While I accept that there is doubt about whether or not the Applicant did make a serious threat of self-harm, there is no doubt that Mrs Leviny took the matter seriously, hid the firearms and sought medical assistance for the Applicant. Given the seriousness of the situation I also suggest that the Applicant obtain a psychiatric or psychological report giving clear evidence of his psychological stability and that there is no psychological reason why he should not hold a firearms licence. 74If he takes these steps and should he choose to reapply for a firearms licence, the Commissioner may well reach a different conclusion. Orders The decision to revoke the Applicant's firearms licence is affirmed. ********** 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: 20 March 2013