Leviny v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 108

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Leviny v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 108 Hearing dates: 14 July 2014 Decision date: 24 July 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Professor G.D. Walker, Senior Member Decision: The decision under review is affirmed. Catchwords: Firearms - safe storage Legislation Cited: Civil and Administrative Tribunal Act 2013; Firearms Act 1996 Cases Cited: Bottomley v Commissioner of Police (CoP) [2005] NSWADT 21; Cleofe v CoP [2001] NSWADT 2; CoP v Toleafoa [1999] NSWADTAP 9; Cusumano v CoP, NSW Police Service [2001] NSWADT 50; Davos v CoP, NSW Police Service [2013] NSWADT 7; Green v CoP, NSW Police Force [2014] NSWCATAD 59; Hardy v CoP, NSW Police Force [2006] NSWADT 167; Hill v CoP, NSW Police Service [2002] NSWADT 218; Leviny v CoP, NSW Police Force [2013] NSWADT 62; Leviny v CoP, NSW Police Force, [2013] NSWADTAP 34; Lynch v CoP [2006] NSWADT 80; Mills v CoP, NSW Police Force [2014] NSWCATAD 38; Petty v CoP, NSW Police Force [2003] NSWADT 20; Stranges v CoP, NSW Police Service [2004] NSWADT 221; Uzelac v CoP, Ministry of Police [2003] NSWADT 226; Vella v CoP, NSW Police Service [2003] NSWADT 91; Ward v CoP [2000] NSWADT 28. Category: Principal judgment Parties: Geoffrey W.G. Leviny (Applicant) Representation: G Leviny (Applicant in person) J Mattson (Respondent) File Number(s): 1410114

reasons for decision 1The applicant Mr Geoffrey William Good Leviny on 11 March 2014 applied to this tribunal for a review of the respondent's decision of 24 October 2013 to refuse his application for a firearms licence. That decision had been confirmed in an internal review on 3 February 2014 (exhibit R1, tab 6c). The respondent had refused to issue a licence to the applicant on the ground that it was not in the public interest that the applicant hold a firearms licence, relying on s 11(7) of the Firearms Act 1996. 2Mr Leviny is a farmer and grazier who operates a property a Palmer's Island, New South Wales. He is also a practical inventor with several patents to his credit. For the past seven years he has been working on the development of a new type of engine that makes use of centrifugal force in such a way, he believes, as greatly to reduce fuel consumption in a revolutionary manner. 3The applicant had previously held a firearms licence since 1998, but it had been revoked on 19 June 2012. That revocation had come about following an incident on 7 June 2012. On the following morning, his wife had contacted the family doctor, Dr Hope and told him that she had without his knowledge hidden the applicant's Lithgow .22 rifle and air rifle and informed the doctor where she had placed them. As he was legally required to do in the circumstances as he understood them, the doctor contacted the police, who called at the house at around 10 pm that evening The police officers spoke to both the applicant and Mrs Leviny, formally seized the two rifles and also suspended the applicant's license. Subsequently, a letter of licence revocation was sent on 18 June to the applicant. The ground given by the delegate was that she was not satisfied that he would exercise continuous and responsible control over firearms and therefore that it was not in the public interest for him to continue to hold a licence (exhibit R1, tab 3c). 4That revocation was the subject of an appeal to the Administrative Decisions Tribunal (ADT), the predecessor of this tribunal: Leviny v Commissioner of Police, New South Wales Police Force [2013] NSWADT 62. Following a hearing on 15 March 2013 before Montgomery JM, that tribunal affirmed of the revocation in its decision of 20 March 2013. On appeal, the appeal panel upheld that decision: Leviny v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 34 on 23 July 2013. 5On the evening of 7 June 2012, the applicant had shot a hare, using a room in the house as a "hide". In daylight hours it was his practice to shoot rabbits, hares and other pests from inside the house, because in the open paddocks of the property the animals would see him and scatter. After he had finished using the rifle, he placed it in a cupboard in the dressing room with his .177 air rifle and did not return it to the gun safe in his garage. 6What transpired next was the subject of conflicting evidence at the March 2013 hearing. Later in the evening, the applicant was in a frustrated mood over the failure of his efforts to obtain an engineer's report that he needed to lodge in order to prevent the (presumably provisional) patent over the engine from lapsing in a few days' time. There was an animated disagreement between him and his wife over whether she should telephone the engineer in question. 7According to the respondent's version of the events, he then took the .22, placed it under his chin and said, in Mrs Leviny's presence, "I might as well blow my brains out". In view of that comment, Mrs Leviny removed the two rifles from the unlocked dressing room cupboard and hid them under the bed without the applicant's knowledge. The next morning she contacted Dr Hope and told him about the threat. She said that she and the applicant would be away from the house that day and that she had hidden the rifles under the bed. Pursuant to s 79 of the Firearms Act, Dr Hope then telephoned the police. Mrs Leviny wished that the police would confiscate the rifles. 8The applicant, however, denied that he had placed a muzzle of the rifle under his chin with the intention of firing. He conceded that he had said words to the effect that he might as well blow his brains out, but denied having held a firearm at the time he made the statement or that he had ever held a firearm to his chin. He said this comment was merely a simple expression of frustration at being unable to find a solution to the problem concerning his invention. Mrs Leviny denied that she had told Dr Hope that the applicant had threatened self-harm in her presence or that she had seen her husband with a gun on his hand at any time on 7 June 2012. She also stated that in the 30 years she had known the applicants she had never seen him put a gun to his body, under his chin or anywhere else, threatening suicide. 9She conceded that she had experienced a strong reaction to the comment and that she was very upset when she saw Dr Hope the next day. She accepts that because of the situation, Dr Hope might have misunderstood what she said, but maintained that she did not tell him that the applicant had threatened self-harm in her presence, or that she had told either of the police officers who came to the residence on 8 June 2012 that he had done so. 10Montgomery JM concluded that "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" (at [60]). He determined, however, that he did not need to decide that issue because the applicant's failure to secure his firearms provided sufficient cause to warrant the decision to revoke his firearms licence. He also thought that it was 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 [with safe storage rules]". He suggested that the applicant take positive steps to re-educate himself in relation to firearms law and the importance attached to the storage requirement (at [70] - [72]). 11The appeal panel noted that the case below had been decided entirely on the ground of failure to maintain safe storage and thought it would be unproductive to revisit the events of 7 - 8 June 2012 (at [34]). After reviewing the evidence below and hearing submissions, the panel concluded that Montgomery JM's decision was correct and dismissed the appeal: Leviny v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 34 at [34]. 12Ten days after the appeal panel's decision was delivered, the applicant lodged a new application for a firearms licence (exhibit R1, tab 5a). The respondent decided on 24 October 2013 to refuse that application, and his decision was confirmed by the internal review of 3 February 2014. The applicant then appealed to this tribunal against that refusal. 13At a directions hearing on 29 April 2014, Deputy President Hennessy directed the applicant to file and serve written submissions, affidavits and witness statements by 13 May 2014. Under cover of a letter dated 8 May 2014, the applicant filed and served some written submissions, a copy of an information in support of an application for disposal of property to be heard at Maclean Local Court, and a copy of a letter dated 19 June 2012 from a nurse in the acute care service (exhibit A1). He did not comply with the direction to file and serve affidavits and witness statements, offering no explanation.