Moroney v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 138

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Moroney v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 138 Hearing dates: 22 June 2015 Decision date: 03 July 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: Prof G Walker, Senior Member Decision: The decision under review is affirmed. Catchwords: FIREARMS –revocation of licence –brain injury – public interest Legislation Cited: Civil and Administrative Tribunal Act 2013; Firearms Act 1997; Firearms Regulation 2006. Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 77; Green v Commissioner of Police [2014] NSWCATAD 59; Mc Donald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 357; Nakad v Commissioner of Police [2014] NSWCATAP 10. Category: Principal judgment Parties: Shannon Moroney (Applicant) Commissioner of Police, New South Wales Police Force (Respondent) Representation: Solicitors: Hartmann & Associates (Applicant) Minter Ellison (Respondent) File Number(s): 1510163

Reasons for decision 1. The applicant Shannon John Moroney, aged 38, a former air force airfield defence guard, previously held a New South Wales firearms licence from 7 March 2006 until 25 April 2011. Subsequently he moved to Queensland with the RAAF and was issued with a Queensland firearms licence that was due to expire on 16 July 2016. On 4 April 2012 he suffered a traumatic brain injury caused by an accident while riding his bicycle to work. As a result of that injury he experienced post-traumatic amnesia, depression, agitation, anxiety, short-term memory difficulties, fatigue and sleep disturbances. 2. On 5 December 2013 he applied for a New South Wales firearms licence and was issued with licence number 409250697. In his application he had answered "No" to the question asking whether he had in the last twelve months been referred or treated for (inter alia) a mental or nervous disorder. 3. A health professional information disclosure under s 79 of the Firearms Act 1997 (the Act) and s 38 of the Weapons Prohibition Act 1998 (the WP Act) was received from Dr Richard Liu by the Firearms Registry on 20 February 2014. The notification expressed concerns in relation to the applicant's access to firearms because of the increasing behavioural problems with anger brought on by simple triggers, impulsiveness and poor memory that was not improving, although there was some insight into the condition. The applicant had expressed the feeling that he was better off not living if his condition was not improving. This was the first of two adverse s 79 health professional disclosures. As a result of this disclosure, the applicant's firearms licence was suspended on 26 February 2014 and his firearms were seized on 28 February 2014. 4. Following a request by the firearms Registry for a medical risk assessment seeking answers to each question from the prescribed questionnaire, a risk assessment was received from David Churchward, a registered psychologist (exhibit R1, 5c), who had been treating the applicant since 30 April 2014. Mr Churchward's risk assessment stated inter alia that: * Once the applicant ceased taking the medication Lyrica, his mood stabilized and there was an improvement in his state of agitation; * The Lyrica had been viewed as exacerbating the applicant's agitation, resulting in anger difficulties, depression and suicide ideation; * The applicant was developing "increasing ability to self-manage the impact of his injury" which had "significantly reduced any risk associated with possessing and using firearms"; * The applicant "self manage[d] his medications and [was] compliant with his current medication regime", and * As long as the applicant "remain[ed] compliant with his medication regime and his current treatment plan, the chance of relapse is minimal". 1. That risk assessment was viewed as favourable, and on 26 July 2014 the respondent issued a category AB firearms licence to the applicant for sport/target shooting and recreational hunting/vermin control. 2. Subsequently, on 17 October 2014, a second s 79 notification was received at the Firearms Registry, this time from Dr Irwin Pakula, a consultant psychiatrist who had been the applicant's treating psychiatrist since March 2014. This notification advised that the applicant had an acquired brain injury, poor memory, paranoia, anger problems and depression and was sometimes suicidal (exhibit R1, 6a). In letter attached to the completed disclosure form, Dr Pakula added that the applicant had major memory problems associated with a very short temper and paranoid ideation. "He is in my opinion a potential danger to others due to his psychiatric condition and he should not have any weapons near him at all due to his paranoid ideation, poor memory and poor anger control". 3. Also attached were the psychiatrist's update notes dated 24 September 2014, which state that the applicant was frustrated by the current level of symptoms and had "a short fuse". His mood was "labile" and he was depressed, frustrated, upset and unsure of his future. In Dr Pakula's opinion, the applicant was "disabled following his acquired brain injury and this [had] affected his life in numerous areas of personality, anger, work and relationships. For now he is rather paranoid." 4. Following this second disclosure, the second notice of suspension was issued on 17 October 2014 and the applicant's firearms were again impounded. Between 28 October and 11 December 2014, the applicant submitted a number of character references and a letter from a consultant psychiatrist, Dr Paul Stevenson, dated 8 December 2014. 5. On the basis of the available evidence, a delegate of the respondent decided on 28 January 2015 to revoke the applicant's license. The decision-maker expressed the view that the applicant's mental health raised doubts regarding his ability to exercise continuous and responsible control over firearms, and consequently it was not possible to be satisfied that there was "virtually no risk" to public safety in his having a licence. 6. The applicant requested an internal review of that decision, and on 25 February 2015 a delegate of the respondent affirmed the decision (exhibit R1, 7d).