Doueihi v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2022-10-10

What these proceedings are about

These proceedings concern the Commissioner of Police's decision to refuse the applicant's application for a Category AB Firearms licence application on 26 March 2021 and the decision on Internal Review on 9 May 2022 to affirm that decision.

Introduction

The applicant in these proceedings is Mr Joseph Doueihi (Mr Doueihi). The respondent is the Commissioner of Police NSW Police Force (the Commissioner). The Commissioner's delegate formed the view that it was not in the public interest for Mr Doueihi to hold a Firearms Licence.
That decision was based predominantly on medical matters relating to Mr Doueihi's use of alcohol and related mental health matters.

Jurisdiction

Mr Doueihi had reapplied for a Category AB Firearms Licence on 1 November 2019. That Licence was refused under s 11 (7) of the Firearms Act some 16 months after the application.
Mr Doueihi applied for an Internal Review of that decision on 3 June 2021. The Internal Review Statement of Reasons is dated 9 May 2022 and in his application to the Tribunal Mr Doueihi states that it was received by him in mid May 2022. On any assessment as his application to the Tribunal was filed on 6 June 2022 his application has been received within the 28 day time provided for administrative review.
Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The first matter listed at s 75 concerns the refusal to issue a licence. Relevantly the section provides: Part 8 Applications to Civil and Administrative Tribunal 75 Administrative reviews by Civil and Administrative Tribunal of certain decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - (a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person, (b) a condition imposed by the Commissioner on a licence or permit issued to the person, (c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order), (d) the refusal of or failure by the Commissioner to register a firearm, (e) the cancellation of the registration of a firearm by the Commissioner, (f) a firearms prohibition order made against the person, (g) a decision made under the regulations concerning the person that belongs to a class of decisions prescribed by the regulations for the purposes of this paragraph. (Emphasis added)
The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Tribunal has jurisdiction under the Firearms Act as noted at [15] above.
As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal's function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, 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; (1979) 46 FLR 409.

Administrative Review by the Tribunal

The parties agree that Mr Doueihi filed his application for Administrative review on 6 June 2022 within the period provided to lodge an administrative review application with the Tribunal.

What issues do these proceedings raise for determination?

On my assessment the issues are as set out by the Commissioners delegate:

Is it in the public interest for the applicant to hold a licence?

This issue will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law.

Applicant's written evidence

Exhibit 'A-1'. Statutory Declaration of Mr Doueihi dated 13 September 2022.
Exhibit 'A-2': References of S Mawad 24/6/2022, M Gittany 26/6/2022 x 2, R.M. Bunting (undated), S.Zaiter 20/6/2022, R. Doueihi 8/7/2022 and Medical Certificate of Dr Grant dated 11/7/2022.

Respondent's written evidence

Exhibit 'R-1' Documents filed under s 58 ADR Act.
Exhibit 'R-2' Medications list and Medical consultations list of applicant produced under summons.

Both parties were legally represented and provided detailed written submissions and made oral submissions at hearing. Mr Doueihi was subject to cross-examination at hearing.

Mr Doueihi's evidence at hearing

In evidence in chief Mr Doueihi adopted his statutory declaration (Exhibit A-1). The statement addresses his alcohol consumption referring to between two and 10 'beers' consumed each day. He confirmed in 'A-1' that he had 'been drinking alcohol excessively since about 2002 when I was the victim of an assault'.
In his statutory declaration Mr Doueihi confirmed that he had been unsuccessful in respect of treating his alcohol addiction. Mr Doueihi admits candidly in his statutory declaration that whilst he has continued to try and limit his drinking, he has had limited success.
In cross-examination Mr Doueihi was asked about his treatment and appointments with Dr Grant. He said that he saw him on many occasions in 2013 in respect of alcoholism.
Mr Doueihi was taken to page 12 of 'R-2' which identified a treatment session in October 2013 for 'Alcohol addiction'. When questioned about the entry on one of his Firearms Licence applications concerning the Question at item F (d) whether he had been treated in the last 12 months for certain matters, Mr Doueihi said that those references in the medical record were not treatment, in that he was not 'receiving treatment', but that the sessions involved 'discussions' whereby he and the doctor would discuss options and the pros and cons of various tests for his condition. Mr Doueihi characterised these matters as 'discussion about future treatment options'.
Mr Doueihi was questioned further about his written answers in respect of his 2014 and 2019 licence applications and answers about treatment for alcoholism. Mr Doueihi agreed he was suffering from alcoholism but did not believe or agree that the answers that he gave on the prior applications were wrong in any way or inaccurate.
Whilst Mr Doueihi stated that he tried to stop drinking at night he confirmed to the Tribunal that his last drink was the day prior to this hearing.
A question was put to Mr Doueihi concerning the use of his disability pension card in respect of the fee on his Licence application. Mr Doueihi maintained that the entire concern only arose because the Commissioner linked a Licence application to the applicant being a disability pensioner. In that regard Mr Doueihi inferred that the Commissioner's concerns only arose in this context, the need to scrutinise to a greater degree as a proposed shooter who was medically unable to gain employment. He characterised the matter as inadvertently drawing attention to himself.
Mr Doueihi was asked about his attendance at 'A.A.' (Alcoholics Anonymous) sessions. He said that he had seen the 'A.A.' sign at Parramatta Town Hall. However this evidence arose in a context of questions about Mr Doueihi's drinking being untreated for over 20 years which was essentially not denied, even though many attempts to treat it had been made over that period.
The Tribunal asked some questions of Mr Doueihi in respect of its functions and powers under s 38 of the NCAT Act. These focused on what he meant by his answers in evidence that he was not receiving treatment for alcoholism or his mental well-being when he completed the licence application forms in the past.
In order to allow Mr Doueihi to properly understand the issue an analogy was made concerning how he might respond if he had an injured finger (for example) and he was asked to provide answers in respect of what he would do and how he would classify any action taken (as notionally advice and / or treatment). Mr Doueihi's answers indicated that he understood the difference between medical treatment and something relating to a medical matter that was not medical treatment. No questions from the parties arose from this.

Commissioner's evidence

The Commissioner relied upon the material outlined at [21].

Applicant's submissions

Mr Doueihi relied on written submissions and his lawyer made oral submissions at the conclusion of the hearing. In oral submissions it was submitted that the Firearms Act and Firearms Regulation 2017 allow for some, discretion in respect of the term of the licence. It was submitted that to ameliorate risk the Commissioner could issue a two year licence rather than a five year licence.
Submissions were made in respect of the expert report (contained within Exhibit 'R-1'). Submissions went to the scores arising from psychological testing noting that the stress score was 20 and the anxiety score was 12. A score of 12 in the Anxiety scale equated to being moderately elevated. The score of 20 in the Stress subscale of 20 is also only classed as moderately elevated.
Mr Doueihi submitted that there is a qualification to the expert assessment. This being that at the time of the assessment and from an analysis of the assessment there are no recorded factors indicating that his overall functioning will deteriorate in the future. It was submitted that the factors that may result in a deterioration in future have not occurred as yet. Mr Doueihi's Solicitor submitted that the Tribunal can exclude theoretical risk as nothing adverse had taken place as yet.
Mr Doueihi submitted that the Tribunal could place a condition on the licence consistent with a suggestion from the Expert Report. Section 19 (1) of the Firearms Act provides for this provision: 19 Conditions of licence(cf 1989 Act ss 21, 28, APMC 4 (b), 9 (c)) (1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.
It was submitted that a condition that Mr Doueihi be seeking treating treatment or undergoing treatment in respect of his alcoholism would be an appropriate condition in respect of the issuing of any licence.
In respect of the submission from the Commissioner that Mr Doueihi was dishonest in his answers in his application, his Solicitor Mr Cameron submitted that Mr Doueihi was not dishonest. Whilst he agreed that Mr Doueihi's criminal past was of some weight he submitted that it was not significant and should not carry any great weight against the application. This was due to two factors, the nature of the offences and the passage of time.

Commissioner's Submissions

The Commissioner made oral submissions at the conclusion of the evidence. The Commissioner submitted that there were a number of points which weighed against Mr Doueihi having access to firearms. These concerned his dishonesty, his criminal history and of most significance the ongoing and future risk arising from his untreated mental health and alcoholism matters.
Reference was made to the decision of the Court of Appeal in Kocic v Commissioner of Police NSW Police Force [2014] NSWCA 368. In dealing with Firearms Licence application under s 11 (7) the Court observed at [127]: Scope of public interest considerations under s 11(7) of the Firearms Act 127. As Leeming JA points out, s 11(7) is prefaced with the words "despite any other provision of this section". The fact that the criterion of fitness in s 11(3)(a) may be relevant to and thus overlap with the public interest ground in s 11(7) does not mean that in applying s 11(7) the Commissioner cannot consider, or reconsider, matters relevant to s 11(3)(a) if they are also relevant to s 11(7). The fact that the materials available to the Commissioner in deciding whether an applicant is a fit and proper person to be trusted with possession of firearms are limited by s 12(c)(ii) of the Criminal Records Act does not mean that the Commissioner cannot reconsider the matters relevant to that question if they are also relevant under s 11(7), which in my view they are likely to be. For the reasons earlier given, s 12(c) of the Criminal Records Act does not limit the materials to which the Commissioner can have regard in considering whether in the public interest the licence should not be issued. I agree with the reasons of Leeming JA on this question. In my view the width of the public interest criterion in s 11(7) is not limited by the earlier provisions in s 11(3), the non-satisfaction of any of which will necessarily result in refusal of the application.
In respect of the dishonesty issue the Commissioner said that Mr Doueihi's answer to the Tribunal's questions showed that he understood what was involved in medical treatment (with the Tribunal's 'injured finger' analogy). The Commissioner noted that Mr Doueihi had answered the Tribunal that he would 'go and see a doctor' if he had an injured finger. He understood treatments being both surgery at one end and medication at the other.
In respect of the Pensioner Concession issue the Commissioner's representative submitted that whether Mr Doueihi liked this consequence or not, the matter was entirely of his own making and 'self-inflicted'.
The Commissioner submitted that the letter from Dr Grant (the GP) should not carry any weight as it does not offer any view about Mr Doueihi's fitness to possess and have access to firearms.
Reference as made to pages 6, 7. 8 and 9 of the Expert Report and submitted that the findings were considered attributed to Mr Doueihi's high level of depression and alcoholism. Mr Doueihi is considered to be at high risk for alcohol related harm when the report is considered in total.
The Commissioner submitted that from the Expert Report, especially noting what appears at the bottom of page 12 and the top of page 13, that the lack of any treatment of Mr Doueihi's alcohol disorder is a real risk at present (the time of the report), not just in the future.
The Commissioner submitted that Expert Report of May 2020 does not provide any evidence of treatment of the condition at all.
In response to Mr Doueihi's submission that a condition could be imposed on the licence such as treatment or a limited term licence, the Commissioner submitted that seeking to impose any condition is unworkable. This was because the attaining of treatment by Mr Doueihi was not forthcoming, and he had failed to undertake any treatment for a long period of time. In addition such a condition would be unworkable because it would require Mr Doueihi to self-monitor.
The Commissioner in written submissions relied on the often cited cases of Commissioner of Police v Toleafoa [1999] NSWADTAP 9, Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 and Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. Reference was also made to Livadaru v Commissioner of Police [2008] NSWADT 160 where Deputy President Hennessy referred to the public interest at [54]: In considering the public interest, regard must be had to the underlying principle of the Act. ….
The Commissioner also referred to the Appeal Panel case of Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 (Lee), concerning giving proper consideration of all relevant matters when determining matters as to the public interest. At [24] - [25] of Lee the Appeal Panel observed: 24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d). 25. In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or permit as irrelevant considerations.

Applicant's reply submissions

In brief reply, submissions at hearing Mr Doueihi submitted that the summoned medical records (Exhibit 'R-2') identified from pages 29-36 inclusive 35 visits to doctors in respect of his alcoholism. It was submitted that notwithstanding his evidence that he was not specifically receiving treatment in the sessions from 'R-2' that he was taken to in cross examination, there was evidence of treatment via those extensive numbers of visits.

Consideration

The decision under review is based upon the notion that Mr Doueihi having access to firearms would be contrary to the public interest. In respect of the public interest I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.
Section 3 of the Firearms Act 1996 provides: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and …
It is well understood when reviewing these decisions in the Tribunal that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered as per the reference to Livadaru at [49] above.
As was mentioned in the Commissioner's submissions, the Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 discussed how the Tribunal should approach matters of public interest in licensing regime reviews. 28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is: . . . 33. The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.
As I have previously observed in Firearms Licence reviews, whilst not the main basis for the decision for review before the Tribunal, the notion of 'fit and proper' is referred to the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond. The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.
Such a position is consistent with the approach that the cases outlined above have set out concerning applying the concepts in a broad manner to the available evidence and having regard to the objects and purpose of the firearms licensing regime. In this instance the regime is designed to protect the public as a primary consideration and for this reason under the Firearms Act access to and use of firearms is not a right but a privilege.
The legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act.
In applying the discretion for the public benefit, having considered the evidence I find that there are matters which on an objective test (having regard to the objects of the legislation and cases referred to above) which would prevent Mr Doueihi being granted the licence at present. The underlying and pressing issue is his untreated alcoholism. I note that Mr Doueihi's own evidence to the expert was that he receives the Disability Support Pension on the basis of his alcohol dependence. (Exhibit 'R-1' pg. 98).
I note that the passage from Mr Doueihi's medical report referred to in the Commissioner's submissions concerning pages 12 and 13 of that Report reads as follows: It is my opinion that at the time of the assessment Mr Doueihi's psychological conditions had no direct impact on his ability to exercise continuous or responsible control over firearms. He claimed that he never operated a motor vehicle or used a firearm while or after drinking alcohol. Based on his presentation and overall psychological profile, in my opinion this was a genuine claim. However, Mr Doueihi's overall diagnosis and the severity of his conditions are concerning. First, Mr Doueihi claimed that he was receiving the Disability Support Pension (DSP) on the basis of alcohol dependence. The claim was verified by Mr Doueihi's family doctor, Dr Christopher Grant (see letter by Dr Grant dated 6 March 2020). This suggests that Mr Doueihi's alcohol addiction is severe enough that it renders him unable to work. Such severity level is concerning, especially because his addiction is untreated. Second, Mr Doueihi's alcohol addiction and depressive disorder appeared to be bidirectional. It is highly likely that his level of alcohol consumption is driven by his depression, whereas his depression is maintained by his alcohol addiction. Again, his condition is untreated. Since the above conditions are untreated, they may pose risk factors in the future. It is likely that in case his conditions remain untreated, his overall functioning may deteriorate and his ability 'to exercise continuous or responsible control over firearms' may become compromised.
Having reviewed this evidence which was submitted to the regulator (Commissioner) during the internal processes, and received from the Commissioner without objection by Mr Doueihi, I agree that the lack of treatment is a concern in respect of Mr Doueihi's ability to exercise continuous or responsible control over firearms.
Whilst I have placed some weight on Mr Doueihi's own evidence as to how he manages his alcohol consumption, the references tendered by him in support of the application, and Mr Doueihi's candour whilst giving his evidence at hearing, I find that the unchallenged evidence of Mr Doueihi's own expert must hold significant weight.
In the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal recently observed that the 'burden' that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed: 56 It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative. 57 Rather, as stated in Webb at [32] when considering the question of public safety: "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".
In balancing those risk matters with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, that it would not be in the public interest to grant the licence.
Having regard to the cases referred to above, in my view it would be contrary to the public interest to grant Mr Doueihi a firearms licence at present and I so find. Unfair as it may seem, having regard to the objects of the Firearms Act and the principles of the public interest which will always be greater than any private interest, I cannot be satisfied that whilst his alcoholism remains untreated, that granting a licence would be in the public interest.

Conclusion

Because of the findings that I have made, it is appropriate to affirm the decision of the Commissioner.
As this is an administrative review matter, it therefore follows that the correct and preferable decision is to affirm the decision of the respondent.
I therefore make the following orders:

Orders 1. The decision of the Respondent to refuse the Applicant's application for a Category AB Firearms Licence 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: 21 December 2022

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Cases Cited (9)