The Applicant denied in his affidavit that he was an alcoholic. He wrote that, prior to the incident on 27 April 2020, when Police attended his home, he had had an incident of atrial fibrillation and was advised at the hospital that the condition can occur in connection with alcohol consumption. He had, by that date, already consulted his General Practitioner, Dr Virk who advised him against going "cold turkey" and who referred him to St John of God Hospital to oversee his physical withdrawal. This was confirmed by the notes of his admission to Nepean Hospital.
On 4 June 2020 the Applicant admitted himself to St John of God for rehabilitation and he undertook the 21-day in-patient programme. He came under the care of Dr Seema Sharma.
Dr Sharma provided a report dated 23 June 2020 to the effect that the Applicant had engaged in a rehabilitation program and has embraced abstinence from alcohol.
The doctor recommended monthly carbohydrate-deficient transferrin (CDT) blood testing to detect any alcohol abuse. The Applicant provided the following pathology reports in respect of CDT testing:
(a) sample taken on 2 July 2020 - with result of 1.5
(b) sample taken on 28 July 2020 - with result of 1.6
(c) sample taken on 26 August 2020 - with result of 1.4
(d) sample taken on 7 October 2020 - with result of 1.6
(e) sample taken on 16 November 2020 - with result of 1.5
(f) sample taken on 18 December 2020 - with result of 1.4
(g) sample taken on 24 February 2021 - with result of 1.5
(h) sample taken on 30 April 2021 - with result of 1.7
The doctor also recommended random Ethyl Glucuronide (ETG) urine testing and the Applicant provided the following ETG pathology reports:
(e) sample taken on 26 August 2020 - not detected
(f) sample taken on 7 October 2020 - not detected
(g) sample taken on 16 November 2020 - not detected
(h) sample taken on 18 December 2020 - not detected
(i) sample taken on 24 February 2021 - not detected
(j) sample taken 30 April 2021 - not detected
The annexure to the Applicant's affidavit which referred to all of his test results was missing from the Tribunal's file, but the Applicant deposed that the above results indicate no alcohol consumption and that he has not consumed alcohol since May 2020.
The Respondent was critical of the Applicant's reliance on pathology reports, without medical evidence as to the interpretation of the results. I explored at the hearing if even a simple internet search might assist, but the Respondent did not commend that course. I decided nonetheless to undertake a basic search, the likes of which would have been readily available to the Respondent. Ordinarily I would not attach much weight to internet material, and would prefer medical evidence from a person's treating medical practitioner in interpreting pathology reports. Similarly, in the absence of any other evidence, I would place little weight on internet information. However, I had before me the Applicant's clear evidence that he has not consumed alcohol at all since May 2020. His assertion was corroborated to some extent with respect to CDT by some information gleaned at http://www.viapath.co.uk/sites/default/files/upload/BloodSciences/cdt%20report2.pdf to the effect that subjects who consume little or no alcohol will have readings of less than 1.6%. Individuals misusing alcohol typically have a higher proportion of transferrin as CDT (3-10%).
Similarly, 95% of non-drinkers and individuals with normal drinking patterns, have a %CDT of 1.8 % usually indicate a consumption of more than 60 g of ethanol per day over a period of at least one week. 5% of individuals will therefore have a %CDT of > 1.8 % without excessive drinking: https://www.labnet.health.nz/testmanager/index.php?fuseaction=main.DisplayTest&testid=501:
I am satisfied that the pathology tests, coupled with the Applicant's evidence and Dr Sharma's assessment, suggest an abstinence of alcohol for about a year.
Dr Sharma also recommended that the Applicant, with his GP, find an out-patient psychiatrist to follow up. The Applicant said before me that he had discussed this with his GP, who felt there was no need to do so.
[2]
The public interest
The expression "public interest" is not defined in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
The Applicant's interest in holding a firearms licence is a long-standing one - nearly 40 years, since he was a teenager. He wrote in his affidavit that recreational hunting is a good way to take a holiday from his work and other responsibilities and he finds it is good for his health. I observe that Ms Keegan provided information about the Applicant's employment, which by virtue of his senior position, I accept is stressful.
Private interests, however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.
Any firearms licence is a privilege, not a right, and the enjoyment of that privilege is conditional upon the overriding need to ensure public safety. In considering whether an applicant should be afforded the privilege to hold a firearms license, the Tribunal has held that where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Aubrey v Commissioner of Police [2005] NSWADT 266 at [21].
Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23].
The Court of Appeal in Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368 at [1] observed that the power to grant an application under the Act is tightly constrained, and in particular, significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant.
The Respondent submitted that although it is accepted that the Applicant did not threaten to self-harm when his son made a report to Police on 27 April 2020, and that the Applicant does not suffer from any mental illness, there is an ongoing concern regarding the Applicant's use of alcohol and how that has resulted in adverse interactions with Police. I accept that, in the past, the Applicant has come to the attention of Police while affected by alcohol. Although the Applicant claims that he was not an alcoholic, the past incidents involving alcohol suggest that the Applicant may have been consuming alcohol to excess for at least several years. However, since that time, as I have found, the evidence is of abstinence from alcohol for about a year.
The Respondent also submitted that the relationship between the Applicant and one of his sons remains unsettled and hostile. I observe that the Applicant appears to have a good relationship with other members of his family and has cut ties with his son with whom he has had a difficult relationship for some years. I do not accept, as was submitted, that concerns remain that further incidents may arise in the future necessitating Police intervention. Even if that were the case, which is unlikely, there has been no suggestion of the previous use of a firearm, and the Respondent conceded that there was never a threat of self-harm. For that matter, there was no evidence whatsoever that the Applicant may harm others, using a firearm or otherwise.
[3]
Conclusion
I observe that in the internal review decision noted that "if at some point you lodged a fresh application for a firearms licence, with documented evidence of your ability to control your consumption of alcohol, it is possible that an alternate decision may be reached". I am satisfied that the material provided by the Applicant has demonstrated his ability to control his consumption of alcohol. I further observe that there is no provision for the Firearms Registry to grant a firearms licence subject to conditions requiring provision of pathology or medical results to evidence continued abstinence from alcohol and to demonstrate a licensee's ability to maintain continuous and responsible control over firearms. Nonetheless, in the circumstances I am satisfied that there is virtually no risk in the Applicant having the privilege of a firearms licence.
For the reasons outlined above, the correct and preferable decision is to set aside the decision of the Respondent to revoke the Applicant's category AB firearms licence.
I observe that, had the Applicant's firearms licence not been revoked, the licence would, in any event, have expired on 2 October 2020. Neither the Respondent nor the Tribunal has the power to reissue an expired licence: Sawires v Commissioner of Police [2010] NSWADTAP 68 at [12]. In any future application by the Applicant for a firearms licence, however, it would be appropriate that the Respondent take this decision into account.
[4]
Decision
The decision under review is set aside.
[5]
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
[6]
Amendments
07 June 2021 - No Amendment made
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: 07 June 2021
Parties
Applicant/Plaintiff:
EMG
Respondent/Defendant:
Commissioner of Police
Cases Cited (7)
Nature of Proceedings
Section 63 of the Administrative Decisions Review Act 1997 provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]- [34]. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.