Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117 Hearing dates: 31 May 2013 Decision date: 20 August 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: 1. The decision under review is set aside. 2. The decision made that the application is granted. Catchwords: Firearms licence - refusal of licence - public interest Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Cases Cited: Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Ward v Commissioner of Police Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Category: Principal judgment Parties: Tony Kavalieratos (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Reuben George Lawyers (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 123175

reasons for decision 1This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the Administrative Decision Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. However, because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule). 2This is an application for review of the determination by a delegate of the Commissioner of Police to refuse an application by the Applicant, Mr Kavalieratos for the grant of a Category ABH firearms licence under the Firearms Act 1996 ("the Act"). 3The Applicant has previously held a firearms licence. That licence was first issued in 2001 for Recreational Hunting/Vermin Control. The licence was due to expire in February 2012 but it was suspended in October 2011 when he was served with a Provisional Apprehended Violence Order ("the AVO"). 4The AVO arose from allegations made by his wife that during a domestic dispute, in early 2011, the Applicant had placed a handgun against his head with his finger on the trigger. The Applicant's wife also reported to police that in September 2011 the Applicant had threatened to kill her, and take her daughter from her. The Applicant denied the allegations. The AVO was revoked at Bankstown Local Court on 27 January 2012. 5The Applicant's suspended firearms licence expired in February 2012. 6The decision to refuse the application was affirmed on internal review. In the reasons for the decision on internal review the delegate stated: Your internal review submission states that your wife has been diagnosed with Bipolar Stage II, for which she is currently receiving treatment from a psychiatrist and psychologist. You state that she was admitted to Liverpool Hospital on 11 October 2011 for depression and she was hospitalised again from 26-29 October 2011, when she was prescribed antidepressants and a mood stabilizer. You also state that you and your wife attend regular counselling together to ensure effective communication within your family with regards to dealing with her diagnosis. You further submit that your wife's allegations were false, and they were made during a manic episode when she was not receiving the right treatment. You assert that all your firearms remained secured in your two gun safes and only you had the keys. ... I note that you have provided no documentary evidence for consideration which would support your claims regarding your wife's mental health. Additionally, it is not clear that her mental condition would cause her to make untruthful allegations to police of such a serious nature, or to be delusional about what had occurred. I accept the possibility that your submission is true and your wife's allegations were false. On the other hand, despite your assertions regarding your wife's illness, I accept the equal possibility that her allegations were truthful. You provided a letter from your wife which appears to support your claims. However, it is relevant that the letter is unsigned and undated. In my view this fact significantly lessens any weight that can be assigned to that letter. Additionally, whilst I accept the possibility that your wife did write the letter and she now states that her allegations were false, due to the very nature of threatening conduct, even if that were true it is also possible that your wife was coerced to provide that letter. Therefore I cannot be satisfied that the alleged conduct did not occur exactly as your wife reported to police. I have no medical evidence before which would demonstrate that there is no possibility that your wife was not truthful in her allegations regarding your unsafe conduct with a firearm in early 2011 and your alleged threats in September 2011 that you would kill her. I cannot conclude that the allegations were false based on your word and an unsigned letter from your wife. The principles and objects of the Act are clear that possession and use of firearms is a privilege that is conditional on public safety. Where there is information which casts any doubt on a person's safety with firearms, I believe those doubts should be given significant weight ...: In reviewing this matter I believe some positive weight can be assigned to your unblemished licence history prior to 4 October 2011. However, in my view, that positive weight is significantly diminished by the allegations that you held a handgun to your head in early 2011. Considering the possibility that the alleged threat of self harm and threat to kill your wife are truthful, I place significant weight on the fact that I have no medical opinion which demonstrates that your current mental health would not negatively impact on your ability to exercise continuous or responsible control over firearms, or that you have the current ability to form a rational judgement or to exercise will power to control physical acts in accordance with rational judgment. As a result, based on the information before me I cannot eliminate the possibility of public risk (including risk to yourself as a member of the public) if you were to be granted access to firearms at this time. ... Your licence application is to authorise a recreational pursuit. ... I believe section 11(7) of the Act makes it clear that public safety must be the paramount consideration where authorisation for firearms is concerned. I accept that this decision is discretionary. However, ... the discretion is to be exercised in clear preference to the public interest than an individual's private interests. ... 7The Applicant has applied to the Tribunal for external review of the determination. 8The Tribunal's task is to determine whether the decision to refuse the licence application is the 'correct and preferable' decision based on the all the material then before it and any applicable written or unwritten law: the ADT Act, section 63. That means that the Tribunal is to take into account all the evidence, not just the evidence on which the Commissioner based his decision. The Tribunal may affirm, vary or set aside the Commissioner's decision.