Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hindmarsh v Commissioner of Police, NSW Police Force [2017] NSWCATAD 254 Hearing dates: 9 February 2017 Date of orders: 17 August 2017 Decision date: 17 August 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: D Dinnen, Senior Member Decision: The decisions are affirmed Catchwords: ADMINISTRATIVE REVIEW - firearms – revocation of licence – mental health - risk to public safety – public interest. Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Firearms Regulation 2006 Mental Health Act 2007 Security Industry Act 1997 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 32; [1990] HCA 33 Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Commissioner of Police v Toleafoa [1999] NSW ADTAP 9 Cusumano v Commissioner of Police, New South Wales Police Service, [2001] NSW ADT 50 Davos v Commissioner of Police [2013] NSWADT 7 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88 Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 Lynch v Commissioner of Police [2006] NSW ADTAP 43 Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Vella v Commissioner of Police [2003]NSWADT 91 Ward v Commissioner of Police [2000] NSW ADT 28 Category: Principal judgment Parties: Michael Hindmarsh (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: Applicant in person Lindsay Taylor Lawyers (Respondent) File Number(s): 2016/00378382, 1610626 REASONS FOR DECISION Background 1. Dr Michael Hindmarsh ("the Applicant") is a qualified veterinary surgeon who was first granted a firearms licence in 1994. On 21 August 1998 he was granted a Category AB (animal welfare) firearms licence, licence number 406853214. On 7 June 2003 the additional Category G (Collector) was added to his licence. On 9 October 2003 his Category ABG (Animal welfare – Veterinary Surgeon, Collector) licence was renewed. On 3 March 2008 "Recreational Hunting / Vermin Control" was added as a genuine reason to his licence. On 9 October 2008 and 9 October 2013 his Category ABG (Recreational hunting / Vermin Control + Animal Welfare – Veterinary Surgeon, Collector) licence was renewed, due to expire on 9 October 2018. 2. In March 2015 the Applicant's membership of the Antique Arms Collectors Society expired. The applicant did not notify the Commissioner in writing of that fact as required by clause 14(1) of the Firearms Regulations. The Applicant's registration as an honorary practising veterinary surgeon has also expired. 3. On 14 January 2016, the Applicant's Category ABG firearms licence was suspended by the Respondent due to concerns regarding his mental health. 4. On 5 June 2016 Police were called to the residential address of the Applicant by the NSW Ambulance Service following the issuing of a certificate under Schedule 1 of section 19 to the Mental Health Act 2007 by Dr Armstrong, a local general practitioner. On 16 June 2016 the Applicant's Category ABG firearms licence was revoked by the Respondent on public interest grounds, contravention of the Act and contravention of licence conditions. 5. On 20 July 2016 the Applicant sought internal review of the revocation through a legal representative. On 31 August 2016 the Respondent determined to affirm the revocation on internal review ("the reviewable decision"), on the basis that "potential risk with firearms has not been eliminated". On 7 October 2016 the Applicant sought administrative review in this Tribunal of the reviewable decision, on the following grounds: 1) I did not advise the Firearms Registry that I had ceased practising as a Veterinary Surgeon. However I did not feel he had to so advice the Registry because when I checked my licence, I noted that it indicated that I owned the licence for the purpose of Animal Husbandry. This is what I did as a farmer, and I assumed no change was necessary. 2) The Firearms Registry have been provided with two sets of documents from NSW Mental Health indicating that they could find no evidence of Mental Health problems. These documents did not specifically address the question of violence and mental health because they did not need to. Having found no evidence of mental health, that should finalise the matter. 1. The Applicant gave evidence and was cross-examined at the hearing on 9 February 2017 and confirmed at its conclusion that he had no additional evidence to provide. The Tribunal made orders for the filing of written submissions in conclusion by the parties. The Respondent filed and served submissions on 3 April 2017. 2. The Applicant sent a number of communications attaching documentation to the Tribunal following the hearing, but did not identify whether any of those communications had been served on the Respondent as required: 22 February 2017 – Hi David> was Commander Starling not replying or does He pay the $1000 fine Kind regards Dr Michael Hindmarsh 3rd 3 April 2017 – Dear Registrar – I have not received the COPS report as of today the 28.3.2017. What do I do? Yours Sincerely Dr Michael Hindmarsh 3rd. 4 April 2017 – The Registrar – NCAT Sydney – Please find my approach to reveal a redacted gun owner Cheers Dr Michael Hindmarsh III. 7 April 2017 – Dear Registrar – Please find (2) two coms (1) Superintendent Zoran Dzevlan (2) Firearms Registry Cheers Dr Michael Hindmarsh III 26 April 2017 – Dear Registrar Civil / Admin NCAT Please find my submission 2016000378382 Dr M Hindmarsh 1 May 2017 – Dear Registrar, I thought it apt to finalise with chronological sequence of my history, Cheers Dr Michael Hindmarsh III 10 May 2017 – Dear Registrar I am preparing for a psychiatrist contact (1) getting the police to scrub out the redaction (2) purging my mental health reports Cheers Dr Michael Hindmarsh III undated – Dear Registrar > I am 2016.000378382. I experienced a "scare" on 8/5/17 a phone call with female voice saying "goodbye" – I spoke to Wollongong Police on /5/17 but they required an "offence". I detected it was from Optus >0266462878< a disconnected line @ Lismore. Many thanks – Dr M Hindmarsh III Punchline Commander Starling now is in the Lismore / Byron Bay Zone// 16 May 2017 (1) Adjornment required Forensic Psychiatrist Appointment 4/7/2017 – letter to be sent today. (2) Phone scare> alleged from Commander Starling > letter sent yesterday! Cheers> Cheers Dr Michael Hindmarsh 3rd 1. On 17 July 2017 the Tribunal wrote to the parties regarding the Tribunal's receipt of additional evidence after the conclusion of the hearing, noting that leave would be required. The Applicant then sent further additional material, including a psychiatrist's report, on 24 July 2017 and 7 August 2017. The Respondent replied on 27 July 2017, objecting to the filing of additional evidence by the Applicant. 2. The Tribunal did not make any orders or grant leave for the filing of evidence at the conclusion of the hearing. It wasn't until 10 May 2017, after the Applicant had filed his closing submissions of 26 April 2017, that the Applicant gave any indication that he wished to provide additional evidence for the Tribunal's consideration. The Applicant chose not to lead any expert evidence regarding his mental health at the hearing, instead relying on clinical notes made by members of the Local Area Health Service. As the Respondent noted in his reply on 27 July 2017, if the Tribunal were to accept new expert evidence at this late stage, the hearing would have to be re-opened entirely. There being no notice given by the Applicant at hearing that he intended to obtain and file additional evidence, and no explanation given why this additional evidence wasn't obtained prior to the hearing, in the circumstances I decline leave for the filing of any evidence after the conclusion of the hearing of 9 February 2017. Legislation 1. The underlying principles of the Act are, relevantly: 1. to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and 2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms. 1. Section 11(3)(a) of the Act provides that the Commissioner may issue a licence to a person who applies for one, but must not do so unless the Commissioner is satisfied that the applicant is a "fit and proper person" and can be trusted to have possession of firearms without danger to public safety or to the peace. 2. Section 11(7) provides that: Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. 1. Section 12 of the Act prescribes the "genuine reasons" considered by the Respondent in the issuing of licences for possessing and using firearms, which are specified in the granting of any firearms licence. 2. Section 24 of the Act provides for the revocation of licences in a range of circumstances, including: (2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations. 1. Clause 19 of the Firearms Regulation 2006 prescribes that: 19 Revocation of licence-additional reasons 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. 1. The Tribunal has jurisdiction to review the Respondent's decision pursuant to section 75(1) (c) of the Act and section 30 of the Civil and Administrative Tribunal Act 2013. 2. The Tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal. See Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77. Fit and Proper 1. The High Court dealt with the expression "fit and proper person" in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. In that matter the Australian Broadcasting Tribunal was required to refuse a licence if it was not satisfied that the Applicant or the holder of a licence was a "fit and proper person". Toohey and Gaudron JJ stated (at 380) that: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. In the same case, Mason CJ stated at [63] that: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 1. In Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at paragraph [9] the High Court defined the concept of fitness and propriety as having three components - "honesty, knowledge and ability." 2. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper ": In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails. 1. In FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88, Judicial Member Molony said at [45]: Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. 1. The Applicant's fitness and propriety must be determined in the light of the role he is to undertake. The Tribunal must consider the evidence before it, taking into account and weighing up matters both contrary to, and in favour of, the Applicant. 2. In Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Senior Member Higgins dealt with an application in relation to firearms licensing under the Act. At paragraph [22] she stated that the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. 22 In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The public interest 1. Section 24(2) (d) of the Act prescribes that a licence may be revoked for a reason prescribed by the Regulation. Clause 19 of the Regulation allows the Commissioner of Police to revoke a licence if they are satisfied that it is not in the public interest for the licensee to continue to hold the licence. Accordingly section 24 (2) (d) of the Act and Clause 19 of the Regulation work together to provide authority for the revocation of a licence where the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence. 2. A discussion of relevant case law with respect to public interest was set out by the Tribunal in the case of Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at paragraph [69]- [74]. The concept of "public interest" was discussed by the Administrative Decisions Tribunal (NSW) ("the ADT") in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 as follows: The "public interest" is an inherently broad concept giving an appellant [the Respondent] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operated in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal. 1. The circumstances in Toleafoa related to the revocation of a security licence under the Security Industry Act 1997 (NSW). In Ward v Commissioner of Police [2000] NSWADT 28, the ADT confirmed that these comments apply equally to the Act. 2. In Cusumano v Commissioner of Police [2001] NSWADT 50, the ADT stated: There is no guidance in the legislation in relation to how these directions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. 1. In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act, namely, to confirm firearm possession and use as a privilege conditional upon the overriding need to ensure public safety. 2. In Ward v Commissioner of Police the ADT's Deputy President Hennessy considered the fitness and propriety of Mr Ward to hold a firearms licence. The Deputy President stated at paragraphs [27 – 28]: 27 ...The question for the Tribunal is whether, based on all the evidence, it would have confidence that [the Applicant] would not pose a risk to public safety if he had access to firearms. 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. 1. The principal issue in determining public safety is therefore whether or not there is a risk to the safety of the public if the Applicant retains the relevant licence: Vella v Commissioner of Police [2003] NSWADT 91. 2. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7, [117]. Evidence 1. Dr Armstrong, Senior Constable Schmidt, Sergeant Keevers and the Applicant gave oral evidence at the hearing. Additional written material before the Tribunal included the Applicant's communications and the clinical records of the local area health service regarding the Applicant, obtained via summons. 2. The Applicant had a number of interactions with local Police involving family disputes and personal conflict with neighbours over the past few years prior to the revocation of his firearms licence in June 2016. Cumulatively, these resulted in the suspension of his firearms licence in January 2016 on mental health reasons. 3. Of particular concern to the Tribunal was an incident in 2013 involving the Applicant hearing the discharge of firearms from the neighbour's property which resulted in the Applicant retrieving his own firearms and going off to search himself for the source of the gunshots, firearm in hand. The Applicant's evidence was that he always carried a gun when he was on the property and that he was not intending to use the firearm, however this conflicted with his evidence that he "ran back to his house… about 300 metres, hiding behind hedges… and retrieved his firearms… and then stopped to shoot a rabbit", demonstrating an intentional retrieval of firearm and ammunition in response to a perceived threat, and his oral and written evidence referring to the incident as the "Mother's Day shootout" and "3 shot challenge" as being calculated or planned as some type of personal attack on the basis that it occurred on Mother's Day and he had three daughters. 4. The revocation notice was issued in June 2016 following Dr Armstrong's attempt to "section" the Applicant under the Mental Health Act. The Applicant objected to Dr Armstrong's evidence at hearing and submitted that the Tribunal should afford it little weight for the reasons that Dr Armstrong had been acting on malicious instructions from the Applicant's estranged wife, including an allegation that his wife had seduced Dr Armstrong, and that Dr Armstrong had not sufficiently examined or assessed the Applicant to form a diagnosis of mental illness. I reject those submissions. The evidence from Dr Armstrong was that he had been the Applicant's treating general practitioner for a number of years and whilst he had not assessed or treated the Applicant's mental health formally, or considered a formal mental health diagnosis, he was concerned enough following a report from the Applicant's wife and a review of correspondence written by the Applicant to attempt to section him, as he "was not confident in diagnosing him", was told by the Applicant's wife that "he would be very resistant", and he believed that "it was an acute situation". 5. Dr Armstrong told the Tribunal that his review of the Applicant's correspondence demonstrated the Applicant's disordered thoughts, delusional thinking and paranoia. Dr Armstrong gave evidence that he had spoken at the time of the attempted sectioning of the Applicant with a psychiatrist (Dr Turnbull) and a psychologist (Peter Green) about the Applicant, and formed the belief that the Applicant was paranoid and delusional and that this could create a potentially dangerous situation that required assessment for a prolonged period of time in an inpatient setting. He thought that the Applicant was suffering from some form of paranoid psychosis. He concluded that the Applicant's wife would be at risk on the basis that the Applicant had established by his delusional mind that his wife was 'the evil one', and referred to her in that manner. The purpose of sectioning him, according to Dr Armstrong, was to "get a proper psychiatric assessment done" by someone qualified and experienced beyond general mental illness, which he believed he was not qualified to do. When questioned, Dr Armstrong opined that the Applicant had "a long way to go before demonstrating that he was stable and responsible to hold firearms". 6. Whilst Dr Armstrong had not assessed the Applicant's mental health formally and in person, and didn't provide a formal diagnosis, his opinion regarding the applicant's mental health and risk to public safety in allowing the Applicant access to firearms is significant in demonstrating that there are causes for concern. Dr Armstrong is a general practitioner of over 40 years' experience, and practices locally to the Applicant. There is no other medical evidence before the Tribunal which provides an opinion of the applicant's mental health or potential risk to public safety in the context of the evidence before the Tribunal of the Applicant's actions and correspondence. There is no evidence that the Local Area Health District was made aware of the writings of the Applicant demonstrating disordered thought, paranoia and delusional thinking, or of the Applicant's interactions with police which caused their concerns for his mental health resulting in his firearms licence suspension. Other than Dr Armstrong's opinion, there is no medical opinion provided regarding the Applicant's suitability to hold a firearms licence. 7. Dr Armstrong's opinions are supported by the evidence before the Tribunal. The Applicant's written submissions and correspondence to the Tribunal in these proceedings demonstrated a disordered thought process, paranoia, and delusional thinking. He suggested, without any basis, that Sergeant Keevers acted improperly because he took no adverse action in relation to the 2013 incident because the person who discharged the firearm was related to a police officer who had been on the Applicant's property many years ago. He claimed, without basis, that Dr Armstrong had been seduced by his wife into providing an adverse opinion of his mental health and attempting to section him. He suggested his ancestral history including descent from the colonial landowners of his property provided a basis for his conflict with his wife, his neighbours, and allegations of persecution by local police. 8. Diagnosis of mental health issues or even general concerns regarding an individual's mental health are not sufficient to demonstrate that there is a risk to public safety as a result of that individual holding a firearms licence. There has to be a demonstrable link between the mental health issues or individual's thought processes and how they are manifested or affect an individual's conduct so as to result in a risk or increased risk to public safety. In these circumstances, the evidence before the Tribunal is that when feeling threatened, as was the case in 2013 when he heard the discharge of firearms near his property, the Applicant's thought processes resulted in conduct which posed a risk to public safety. Specifically, returning to his home, retrieving his firearms, and going to search for the source of the gunshots armed with a firearm and ammunition, rather than contacting police. Subsequent evidence of disordered and paranoid thinking manifesting itself in delusional behaviour and allegations of persecution confirm that there may be a risk to public safety if the Applicant feels threatened whilst possessing firearms or holding a firearms licence. 9. Additionally, there was uncontested evidence before the Tribunal of the Applicant breaching firearms legislation in recent years. The Applicant failed to notify the firearms registry when his membership of the Antique Arms Collectors Society expired in 2015, and when his registration as an honorary practising veterinary surgeon expired in 2016. Both were relevant to his licence conditions. His storage of a long arm rifle was also found to be deficient, in breach of s40 of the Act. 10. Whilst the Applicant has worked with firearms for a large part of his life without incident and lives on a property which could justify the genuine reason of vermin control, the potential risk to public safety is a paramount consideration for the Tribunal. On the evidence before it, the Tribunal is not confident that the Applicant would not pose a risk to public safety if he had access to firearms. 11. The correct and preferable decision is therefore to affirm the Respondent's decision. Order 1. The decision under review is affirmed. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 17 August 2017