Manda v Commissioner of Police, New South Wales Police Service

Background 1 On 25 June 2001 the applicant Mr Brett filed with the Administrative Decisions Tribunal (the Tribunal) an application for review of a decision dated 1 May 2001 to revoke his firearms licence made by a delegate of the respondent Commissioner of Police (the Commissioner). 2 The Tribunal's jurisdiction to conduct the review is derived from section 75 of the Firearms Act 1996 (the Act) and section 38 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). Relevant Legislation 3 Section 3 sets out the principles and objects of the Act. Section 3(1) provides: (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,…. 4 Sub-section 11(3) provides: A licence must not be issued unless: (a) 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, … 5 Sub-section 11 (4) provides: Without limiting the generality of subsection (3)(a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of: …. (c) the applicant's intemperate habits or being of unsound mind. 6 Section 24(2) of the Act provides: 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)…. (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (d) for any other reason prescribed by the regulations. 7 Clause 17 of the Firearms (General) Regulation 1997 (the Regulation) reads: In accordance with section 24 (2) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it. 8 Clause 18(1) of the Regulation provides for the revocation of a permit, rather than a licence, in similar terms to cl 17. Evidence and Submissions 9 Both parties provided a number of documents to the Tribunal. 10 Together with his formal application to the Tribunal Mr Brett provided copies of: · a detailed covering letter dated 16 May 2001 which attached letters from psychiatrist Dr Peter O'Brien and counsellor/psychologist Ms Jenny Chown; · a letter from Ms Chown to Mr Brett dated 29 March 2001; · a letter/report from Dr O'Brien to general practitioner Dr Chris Fenn dated 8 January 2001; · personal references and shooting permissions from Mr Michael F. Hewitt of Crookwell and Mr Peter Warn of Binda; and · a further letter from Dr O'Brien to Dr R. Thangavelu dated 27 September 2001. 11 The police provided the Tribunal with copies of some of Mr Brett's documents and the following documents: · a Firearms Act Notice of Suspension addressed to Mr Brett dated 26 May 2000 signed by Senior Constable T. Macpherson; · a brief report from Senior Constable Macpherson making a recommendation for further suspension dated 29 September 2000; · a brief report dated 7 February 2001 from Sergeant B. D. Peters making a recommendation that the suspension be removed and Mr Brett's licence be returned to him; · a letter to the Local Area Commander Bateman's Bay from the Firearms Registry (Murwillumbah) dated 21 February 2001; · a brief report dated 4 April 2001 from Acting Sergeant M. Ochs; · an undated letter from Mr Garry Smurthwaite of the Firearms Registry (Murwillumbah) to Ms Elsie Saguin of the Medical Section of the Police Service (Surry Hills) requesting that an assessment be made of Mr Brett by Dr Tom Norris; · a letter from Dr Tom Norris dated 19 March 2001 to Mr Smurthwaite; · the original undated Revocation Order and Statement of Reasons of Commissioner delegate D. Walsham together with an Affidavit of Service of Constable J. Flood dated 3 April 2001; · an undated letter from Mr Brett to the Firearms Registry requesting an internal review of the revocation decision; · the internal review decision and Statement of Reasons of Commissioner delegate M. Griffin dated 1 May 2001; · a letter from A. Moynham, Director of the NSW Police Service's Clinical Forensic Medicine Unit (Surry Hills) dated 14 August 2001 to Ms Paterson, Solicitor NSW Police Service; · written submissions dated 14 August 2001; and · a letter from Ms Paterson to the Administrative Decisions Tribunal dated 21 November 2001. 12 Most of the facts in this matter are not in dispute. The Commissioner's evidence is all in documentary form. Mr Brett's documentary evidence was supplemented by his attendance and oral testimony at the hearing. 13 On 10 September 1998 Mr Brett was issued with a category AB firearms licence. 14 At some time early in 2000, Mr Brett's wife of 36 years left him and went to live with another man. As a result Mr Brett went through a period of depression for which he sought and received medical treatment consisting of general medical, counselling and psychiatric services. 15 On the same day as the very beginning of this treatment (5 May 2000) Mr Brett voluntarily handed in his firearms to his local police at Moruya. This was at the suggestion of the first member of the Southern Area Health Service Mental Health Team based at Bateman's Bay that Mr Brett had contact with, a man by the name of Julian. 16 Mr Brett was subsequently treated/counselled twice a week by the Mental Health Team for about a month and then once a week after that. One of the Team members, Ms Jenny Chown personally notified the Bateman's Bay police on 26 May 2000 asking that Mr Brett's firearms be retained until further notice on the bases of Mr Brett's depression and that he may attempt to harm himself. On the same day Mr Brett's firearms licence was suspended on order from Senior Constable Macpherson of the Bateman's Bay Police Station. 17 After four months or so, on 29 September 2000, after consultation with Ms Chown, Senior Constable Macpherson again recommended that Mr Brett's licence remain suspended. At this time Mr Brett remained under the specific care of the Southern Area Health Service Mental Health Team. 18 In January 2001 Mr Brett was in the process of selling his house that he had shared with his wife in Tomakin. He had virtually moved from that house in December 2000 and had spent most of his time since then at a farming property near Binda with his children. He had not seen his wife at that stage for a couple of months. At the time of the hearing he had not seen his wife for more than ten months. 19 Dr Peter O'Brien was Mr Brett's treating psychiatrist from the Southern Area Health Service. Dr O'Brien and Ms Chown reviewed Mr Brett on 8 January 2001. Dr O'Brien prepared a report of the review. It states that Mr Brett 'continues to remain well with no evidence of depressive symptomatology'. It recommends to Mr Brett's general practitioner Dr Fenn that Mr Brett 'remain on the current dose of Zoloft (100mg) for the next 12 months', and further that Mr Brett be reviewed by a psychiatrist in 2002, to assess Mr Brett's need for further medication, although it was his 'expectation that the dose could be slowly reduced over a few months and suspended at that time'. Dr O'Brien did not expect to see Mr Brett again due to Mr Brett's plans to sell his house and move away from the area. He also states that the team [mental health] had no further plans to see Mr Brett although he would review him again 'if required'. 20 According to a subsequent letter from Ms Chown to Mr Brett, referred to again below, Mr Brett's file with the Mental Health Unit of the Southern Area Health Service was closed on that day after his review had been conducted. 21 Dr O'Brien had further stated in his report that Mr Brett 'voluntarily gave his guns into the police, surrendered his gun licence, during the crisis when he was quite down over the issues with his wife', that these issues 'are now resolved' and that he could 'see no reason at all' that Mr Brett 'should not again be given his gun licence (especially given the situation of living on the farm and having the need for the gun for feral animals)'. Dr O'Brien's report also states that he 'will send them a copy of this letter for the purposes, if required, of re-obtaining his [Mr Brett's] gun licence'. 22 On 7 February 2001 a brief report was prepared by Sergeant B. D. Peters of Bateman's Bay Police making the recommendation that Mr Brett's firearms licence suspension be removed and that Mr Brett's licence be returned to him. This report was forwarded to the 'Executive Officer, Batemans Bay' and the 'Firearms Registry, Sydney'. There is a handwritten notation over 'Executive Officer' stating 'Referred for attention', signed 'Mark Thomas' and dated 14 February 2001. 23 A subsequent letter to the 'Local Area Commander … Batemans Bay' from Ms Walter of the Firearms Registry in Murwillumbah dated 21 February 2001 requested that either another suspension notice be issued or that it receive a recommendation report for either the suspension to be lifted or for the licence to be revoked. It does not acknowledge or refer to Sergeant Peters' recommendation report of 7 February 2001 at all. Ms Walter's letter was received by the Local Area Commander's office in Batemans Bay on 26 February 2001. 24 Ms Jenny Chown, Mr Brett's counsellor from the Mental Health Team of the Southern Area Health Service based at the Batemans Bay Community Health Centre, wrote to Mr Brett on 29 March 2001 confirming that: · she had been his case manager and that he had 'been treated for depression' · Mr Brett voluntarily handed in his guns and surrendered his licence · that he 'complied with all his treatment' and · that his file had been closed on 8 January 2001. 25 Ms Chown's letter stated further that Mr Brett 'has overcome his Depression' and that she has 'no concerns with Mr Brett having his guns licence reinstated'. 26 On receipt of Ms Walter's letter by the Local Area Commander's office the matter appears to have been referred to Acting Sergeant Ochs of the Batemans Bay Police Station for 'inquiry and attention'. Acting Sergeant M. Ochs produced a brief report dated 4 April 2001 which recommended that Mr Brett's licence be revoked and that he be 'afforded the opportunity of appeal in the Local Court'. This report was forwarded to a Sergeant Hardman of Batemans Bay Police Station and the Firearms Registry in Murwillumbah. A notation dated 9 April 2001 is made by another Acting Sergeant (not Sergeant Hardman) that s/he agrees with the recommendation. A date stamp on the brief report suggests the Firearms Registry in Murwillimbah received it on 12 April 2001. 27 The Firearms Registry (Murwillumbah) proceeded to seek an 'assessment' of Mr Brett's suitability to continue to hold a firearms licence from a Police Service Medical Officer. The request suggests the 'file' be referred to Medical Officer Dr Tom Norris as he had 'performed previous assessments of this nature for the Firearms Registry'. 28 Dr Norris of the Health and Workplace Services section of the Police Service located in Surry Hills, Sydney prepared an opinion in letter form dated 19 March 2001. His opinion was not supportive at that time of Mr Brett 'having his firearms licence reissued'. Dr Norris reviewed 'the reports supplied' including that of psychiatrist Dr Peter O'Brien and also 'discussed the case' with a police psychologist. His concerns were expressed as follows: · The depression appears to have emanated from a domestic situation and the last contact was only 2 months ago, a relatively short period in my view. · Mr Brett requires to be on antidepressants for a further 12 months and there is no way of being sure about his compliance. · Also one cannot be sure of how he will react when his medication is eventually withdrawn. · Mr Brett is moving away from the area where his medical supports have been established. · No follow-up with Dr O'Brien or the mental health team is planned to monitor him. 29 Dr Norris recommended waiting until Mr Brett has a psychiatric review in 2002 and, provided Mr Brett has remained well and has reduced and suspended taking his antidepressant medication, and has had his mental state reassessed by his psychiatrist after a sufficient period off the medication, then he may be suitable again for a licence. 30 A letter from the Director of the Police Service Forensic Medicine Unit, A. Moynham, dated 14 August 2001 was prepared in reply to a written request from the respondent Commissioner's legal representatives asking specifically for a report on the drug Zoloft: its purpose, typical dosage, the type of depression it is prescribed for and the impact on a person if such medication is withdrawn or the person's 'mental health support is not attended to on a regular basis'. In reply, Director Moynham refers to the 'material' s/he had been provided with and specifically states that Zoloft is a type of medication that 'is a selective serotonin uptake inhibitor and is used in the treatment of major depression. It is dispensed in 50mg and 100mg tablets and the normal dose is between 50mg to 200mg per day'. 31 Director Moynham also proceeds to summarise Mr Brett's factual circumstances and then offers some observations which include that the facts suggest: · Mr Brett 'possessed some insight into his emotional state' · Mr Brett is a 'compliant patient' · Mr Brett's 100mg per day dosage of Zoloft 'is within normal limits' · that 'without his medication there is a possibility that he may relapse into his crisis state again' and · that 'he may be past his crisis and stable as long as he takes his medication …'. 32 Mr Brett attended the Tribunal hearing and gave oral testimony on his own behalf. He stated he has gone to a lot of trouble to do the right thing in relation to voluntarily surrendering his guns and then in seeking to have them returned. He says he has done everything he has been asked to do and that he has done nothing wrong. He has not and does not want to break the law at all in relation to his firearms and he has not nor does he intend to act in any way contrary to the medical advice he has received. Mr Brett recognised after his wife left him that he was in a bad way and a possible danger to himself. He did not think of using his firearms in this regard. His thoughts about ending his own life had been by other means. It was not until Julian from the Health Service asked him if he had any firearms and advised him to surrender them to the police that they came into issue. He believes that after the passage of the sixteen months between his wife's departure and the Tribunal hearing he is 'over' his depression and despair. He now lives in the Binda area very close to his children and grandchildren. Now he is in the bush again he wants to get back into recreational hunting which he has enjoyed in the past. He feels well and happy and is keen to go camping and hunting with his kids and grandkids; he wants to have fun with them. 'There is nothing in the world' that he would do, including to himself, that could harm his children. 33 Mr Brett's evidence at the hearing was that he had continued to take his medication as prescribed. He agreed under cross-examination that it might be detrimental to him if he stopped taking his medication as prescribed, but stated that was not something he planned to do. In relation to being 'monitored' Mr Brett stated that he had not been advised by his treating doctors that that was necessary; if he had been so advised he would have arranged for such. He did speak 'with Jenny Chown quite a bit' and his understanding was that she relayed to Dr O'Brien how Mr Brett 'was doing'. 34 Although under cross-examination Mr Brett agreed that he understood the proposition that once he was 'off the medication completely' he could reapply for his licence and that 'it is really a delay we are talking about', he submitted that such a delay does affect him personally as he cannot join in with the hunting that occurs on his frequent camping trips with his son-in-law and others, as he would like to. 35 In relation to the Commissioner's evidence regarding the uncertainty of Mr Brett's psychiatric state of mind should he stop taking his medication and the consequent possibility of him being a danger to himself or others if armed, Mr Brett submitted that when he was depressed the only person he considered hurting was himself and that such harm could still be done without using a firearm if that was his intention, which it was not. 36 On 16 August 2001 the hearing was adjourned part heard to a date to be advised on the basis that Mr Brett see Dr O'Brien again, in order to have clarified a perceived ambiguity in paragraph 2 of Dr O'Brien's report of 8 January 2001 as to Mr Brett's future medication program and to provide any comment on Director Moynham's letter. This approach was decided upon after the submissions made on behalf of the Commissioner and in light of the tendering of Director Moynham's letter which had not been provided prior to the hearing to either the Tribunal or Mr Brett. The Tribunal sought to ensure that Mr Brett understood the purpose of his visit with Dr O'Brien and that he ask Dr O'Brien to provide a letter to the Tribunal confirming his advice to Mr Brett. The expectation was that after hearing from Dr O'Brien the Tribunal would reconvene if necessary by telephone. 37 Paragraph 2 of Dr O'Brien's report of 8 January 2001 reads as follows: At this stage I recommend that he remain on the current dose of Zoloft (100mg) for the next 12 months. I recommend that he have a review by a psychiatrist in 2002, to assess the need for further medication, although, it would be my expectation that the dose be slowly reduced over a few months and suspended at that time. 38 Dr O'Brien (together with Ms Jenny Chown and a student nurse) saw Mr Brett on 27 September 2001 and prepared a letter to Dr Thangavelu of Crookwell, a town located near where Mr Brett now resides, on that day. The letter begins by stating that the appointment followed 'a rejection of his [Mr Brett's] application to be reissued with a gun licence' …. 'because he was on medication'. It goes on to repeat the background of Mr Brett's marriage break-up and of Dr O'Brien seeing Mr Brett during 2000 and in early 2001 and restates his view of that time that Mr Brett had progressed well and that 'there was no evidence of risk of relapse'. At that time Dr O'Brien explained, he had adopted a 'conservative approach' of recommending Mr Brett continue on his medication for another twelve months. However, he goes on to state after having reviewed Mr Brett that Mr Brett 'has progressed well' and had, for nearly two months, been taking 50mg of Zoloft instead of 100mg and had remained well and although he prefers the more conservative approach 'there is clearly no evidence of the risk of relapse in his presentation today' and therefore Dr O'Brien suggests Mr Brett 'trials suspending' any further use of the medication. He then recommends a future review by Dr Thangavelu and makes other suggestions based on the belief Mr Brett would be reapplying for his gun licence. 39 Dr O'Brien then states that any deterioration in Mr Brett would occur within 2-4 weeks after 27 September 2001 but such would seem to him to be unlikely. Amidst some further general observations on periods of assessment and gun licences he states that 'there is no evidence of [Mr Brett] being a risk to himself or others'. 40 Written submissions were provided on behalf of the respondent and supplemented by oral submissions by Mr Klarica. The legislative provisions relied upon by the Commissioner in the written submissions were sections 3, 11, 24 of the Act and cl 18 of the Regulation. (The legislative bases relied upon by the Commissioner's delegates in the earlier decisions were the same except cl 17 of the Regulation rather than cl 18 was relied upon.) 41 Mr Klarica identified three issues: (i) whether there is reasonable cause to believe that Mr Brett may not exercise continuous and responsible control over firearms due to his intemperate habits or being of unsound mind (s. 11(4)(c) & s. 24(2)(a)); (ii) whether Mr Brett is a fit and proper person to hold a firearms licence(s. 24(2)(c)); and (iii) whether it is in the public interest for the applicant to hold a firearms licence(s. 24(2)(d) & cl. 17). 42 He submitted that the Commissioner is primarily concerned about Mr Brett having access to firearms 'due to the uncertainty of his psychiatric state' and that this is sufficient cause to revoke Mr Brett's licence on the pubic interest and unsound mind bases. 43 In relation to the public interest basis for revocation Mr Klarica referred principally to the cases of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, O'Sullivan & Farrer (1989) 168 CLR 210, Re Thompson's Application (The New Norfolk District Football Club's Case) (1964) Tas SR 129 and Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. 44 In relation to the submission Mr Brett is of 'unsound mind' for the purposes of the Act, Mr Klarica referred to the decisions of Manda v Commissioner of Police, New South Wales Police Service [2001] NSWADT 13, Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 185 and Pointon v Walkley [1951] S.A.S.R. 121 (referred to in Sweet). 45 In relation to the alleged 'uncertainty' as to Mr Brett's psychiatric state Mr Klarica relied on the documentary evidence of the Police Service's Senior Constable Macpherson, Dr Norris and Director Moynham, referring specifically to the concern mentioned by Dr Norris and Director Moynham regarding Mr Brett's medication - focussing on whether Mr Brett has or will comply with the medication regime recommended by his psychiatrist and the uncertainty as to his reaction once the medication is stopped. Mr Klarica characterised Mr Brett's own psychiatrist Dr O'Brien's opinion as 'guarded'. 46 Mr Klarica submitted that while Mr Brett 'is still on medication he is not of sound mind as defined in the legal sense…..he is still being medicated for a condition that falls within the ambit of unsound mind as defined'. 47 In relation to the secondary submission that Mr Brett was no longer a 'fit and proper' person Mr Klarica referred to some passages from Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655. In relation to this basis Mr Klarica at the hearing acknowledged Mr Brett to be a man of good character with no criminal convictions and the victim of an horrendous personal ordeal and conceded that there was not much factual basis for the submission. Mr Klarica went on to say he 'could even withdraw' it. 48 After receipt of a copy of Dr O'Brien's letter/report of 27 September 2001 the Commissioner's legal representatives advised by letter received by the Tribunal on dated 21 November 2001 that they did not seek to make any further submissions except to observe that in the respondent's view Dr O'Brien's 'report does not support the applicant to the extent that he had hoped' and that 'the report adopts a more conservative approach which is more consistent with Dr Moynham's report'. Findings and Reasoning 49 Section 3 of the Act sets out the principles and objects of the Act. Section 11 sets out the general restrictions on the issuing of licences under the Act. Section 24 provides the bases for revoking licences. By reference to s. 24(2)(d) of the Act clause 18 of the Regulation provides for additional reasons for the revocation of permits, whereas cl 17 provides for additional reasons for the revocation of licences, which is what Mr Brett's present application is concerned with. Unsound mind 50 The Tribunal has considered the cases cited by Mr Klarica in relation to the term 'unsound mind'. It has also considered the Tribunal case of Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSW ADT 59 and the case of Herbohn v NZI Life Ltd [1998] QSC 122 to which Wilkinson refers. 51 In Herbohn v NZI Life Ltd WC Lee, J quoted Mayo, J in Pointon v Walkley, as did the Tribunal Deputy President in Sweet's case. Mayo, J considered the phrase 'unsound mind' in its context in the Limitation of Actions Act 1936-1948. Mayo, J stated (at pp 124-5): The phrase "unsound mind" in s.45(1) [of the Limitation of Actions Act 1936-1948] is used in contrast with "idiocy" and "lunacy". Deficiency due to incomplete or abnormal development of the brain, "idiocy", and mental derangement as understood by the word "lunacy" are put in separate categories from unsoundness of mind. The differentiation demonstrates that "unsoundness of mind" is to be given a range extending beyond the former categories….. "Unsound" is the antithesis of "sound". "Sound" when used in connection with body or mind, denotes the presence of perfect health or, putting it another way, the absence of all defects other than those that are trivial. A sound person is one without the sign of disease, malady or unhealthy abnormality. It is, I think, in that sense that "unsound" and "sound" are used in s. 45(1). The important aspects of "soundness" that may be wanting are not only memory, but deficiency in the faculty of reasoning, inadequate power of interpreting sensory impressions, inability to communicate correctly thoughts to another, or the like. In each aspect falling short of the normal may be great or slight. Such imperfections will vary in degree. A sound mind includes all healthy mental states, whether the previous history has been that of idiocy, lunacy, or some other unspecified unsoundness. It may be accepted that the phrase "of unsound mind" in the sub-section is sufficiently comprehensive to include (inter alia) any person who by defect of reasoning powers is unable to understand the matters involved, institute litigation, and who is unable to give directions accordingly. It is with that particular class of action that the sub-section is specifically connected.' 52 In Herbohn Lee, J considered the interpretation of the phrase 'mental unsoundness' for the purposes of a disablement clause in an insurance policy/contract and further, whether that phrase was interchangeable with the phrase 'unsound mind'. Lee, J observed that the term 'unsound mind' had received particular attention, from a legal point of view, with respect to limitation statutes and mental health and public trustee legislation. The use of the term 'unsound mind' can in fact be found in numerous other statutes as well, including for example those concerning bankruptcy , disciplinary proceedings , crime , partnership , migration , superannuation , aged care , navigation , corporations , guardianship , and as in the present case, licensing . 53 In Herbohn Lee J observed that: When seeking to ascertain the meaning of the words "unsound mind" in a statute, they must be construed in relation to the subject matter with which the statute is dealing and their place within it: Kirby v. Leather [1965] 2 Q.B. 367 per Lord Denning M.R. at 383 where the Master of the Rolls said that for the purposes of that statute, a person is of unsound mind if he is incapable of managing his affairs as a reasonable man would do; King v. Coupland . So also with the expression "mental condition" which, according to Slattery J. in Kotulski v. Attard (1981) 1 N.S.W.L.R. 115 at 118 was "meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise will power to control physical acts in accordance with rational judgment". 54 In relation to the phrase 'unsound mind' in the Act, the Tribunal's Deputy President in Sweet's case noted that: · the term is not defined in the Act or Regulations (para 21) · in interpreting the phrase "unsound mind" the ordinary grammatical meaning of the phrase must be applied. "Unsound" is defined in the Macquarie Dictionary, 3rd edition, The Macquarie Library, as "not sound; diseased, as the body or mind." (para 22) · the term "unsound mind" must be interpreted in the context of the public safety principle found in s. 3(1)(a) of the Act. To be of "unsound mind" a person's mental condition must at least have the potential to put public safety at risk if that person has the possession or use of a firearm. (para 27) 55 The evidence provided by the parties did not go into detail about 'depression' generally; no evidence was led describing, detailing or classifying it in technical or other terms as a psychological or psychiatric condition or its possible degrees of severity. What was implicit in the evidence was that a person's thoughts of committing suicide can be a symptom of depression. A person with such thoughts has the potential to put public safety at risk, if that safety can correctly be taken to include their own personal safety. It is the existence of these thoughts taken together with the potential threat they cause to public safety that permit the conclusion for the purposes of the Act that a person is of unsound mind. Such a person may be unable to personally exercise continuous and responsible control over any firearms they possess. Accordingly, a person entertaining such thoughts of suicide, may, in certain circumstances, or at a particular time, be considered to have an unsound mind for the purposes of the Act. 56 The evidence established that Mr Brett had been diagnosed and treated for depression between May 2000 and January 2001. The pivotal factor leading to this diagnosis was that Mr Brett had entertained thoughts of suicide in the period following his wife of many years leaving him for another man. The evidence established that although he did have suicidal thoughts for a time, he no longer had such thoughts, and had not had such thoughts for a very long time. Even at the time Mr Brett had such thoughts, the actual action he took to seek medical assistance suggests quite rational judgment. On the evidence Mr Brett has appeared to act throughout his episode quite rationally. 57 There was no evidence before the Tribunal suggesting that Mr Brett exhibited any other signs of disease or malady or unhealthy abnormality or that he had at any time exhibited any want of memory, deficiency in reasoning, or in interpreting sensory impressions, or the inability to communicate correctly thoughts to another. The evidence of his treating medical professionals, as expressed at January 2001 and March 2001, was that Mr Brett 'continues to remain well with no evidence of depressive symptomatology', that he had 'overcome his depression' and that the issues giving rise to his crisis were now 'resolved'. From a medical point of view both Dr O'Brien and Ms Chown could 'see no reason at all' why Mr Brett should not have his guns back. 58 According to Dr O'Brien's letter to Mr Brett's general practitioner of 8 January 2001, the mental health team including himself and Ms Chown, did not plan to see Mr Brett again. He recommended that Mr Brett remain on a daily dose of Zyloft, the dosage of which he envisaged could be reduced over the course of the following twelve months after which he recommended that Mr Brett be reviewed in 2002. 59 As it turned out Mr Brett was reviewed on 27 September 2001 by Dr O'Brien and Ms Chown. Mr Brett was again described as having 'progressed well' and that there was 'clearly no evidence of the risk of relapse'. 60 The key focus of the respondent's submission that there was reasonable cause to believe that Mr Brett was of unsound mind for the purposes of the Act concerned the medication prescribed to Mr Brett and the queries raised in relation to such medication by the medical professionals consulted on behalf of the respondent, Director Moynham and Dr Norris. The specific queries raised by Drs. Moynham and Norris appear at paragraphs 28 and 31 above. 61 On 14 August 2001 Director Moynham stated that Mr Brett 'may be past his crisis and stable as long as he takes his medication' and that without his medication there was 'a possibility of Mr Brett relapsing into his crisis state again'. The evidence from Mr Brett's review on 27 September 2001 confirms that Mr Brett was indeed past his crisis and was sufficiently stable for his psychiatrist to suggest that Mr Brett suspend taking the Zyloft. 62 In March 2001 Dr Norris was 'not sure' about Mr Brett's compliance with the medication regime that had been recommended by Dr O'Brien. The evidence from Ms Chown, Dr O'Brien, Mr Brett and even Director Moynham all support the conclusion that Mr Brett had been a compliant patient in this regard. 63 Dr Norris was concerned that Mr Brett was moving away from his established medical supports and that there was no plan for follow-up or monitoring by his mental health team. There was evidence, which is accepted, that although there was no formal plan of monitoring by his mental health team, Mr Brett was in fact so monitored after leaving the area by way of his maintaining direct and periodic telephone contact with his former counsellor Ms Chown. 64 Dr Norris was concerned about how Mr Brett would react when his medication was eventually withdrawn. Mr Brett took a halved dosage of Zyloft between mid-August and late September 2001. In his report/letter prepared after personally reviewing Mr Brett on 27 September 2001 Dr O'Brien stated that Mr Brett had 'remained well' and that he suggested that Mr Brett suspend using the medication from that day. Dr O'Brien suggested that a psychiatrist more closely located to Mr Brett review Mr Brett within 3 or 4 weeks in this regard. His view, however, was that any deterioration in Mr Brett after suspending his medication would seem 'unlikely'. Dr O'Brien's view in this regard is accepted and in the Tribunal's view outweighs Dr Norris's concern. This is because Dr O'Brien has had the benefit of personally examining, treating and monitoring Mr Brett over the relevant period of time and is considered to be much better placed to form an accurate opinion. Additionally, the Tribunal does not agree that Dr O'Brien's views on Mr Brett were 'guarded' (as submitted) suggesting he had doubts or that there was need for caution. He did state that he would 'normally prefer the more conservative approach' that he had proposed in January 2001 but on review of Mr Brett his views and suggested approach were expressed confidently. 65 Dr Norris's view as expressed in March 2001 that Mr Brett's last contact with his 'domestic situation' from which 'his depression appears to have emanated' had been 'a relatively short period of two months' was mistaken. It had been four months at that time and although Mr Brett had been in contact with his wife over the sale of their prior home during the subsequent period, as at August 2001, Mr Brett had not seen his wife for about ten months. 66 Mr Klarica also submitted that the evidence of Senior Constable Macpherson supported the assertion that Mr Brett's psychiatric state was sufficiently uncertain to found that he was of unsound mind. In the Tribunal's view, Senior Constable Macpherson's two recommendations regarding the suspensions of Mr Brett's firearms licence were based entirely on the advice provided by Ms Chown of Mr Brett's Mental Health Team. There was nothing else in the evidence to suggest Senior Constable Macpherson had any personal knowledge or understanding of Mr Brett's circumstances other than the information provided by Ms Chown. Such information/advice was provided at much earlier stages of Mr Brett's treatment and can no longer be considered accurate or relevant as far as Mr Brett's mental health status is concerned for present purposes. 67 Finally, in relation to Mr Klarica's submission that while Mr Brett was 'still being medicated for a condition that falls within the ambit of unsound mind as defined …..he is not of sound mind as defined in the legal sense…..' to be far too broad to agree with. There was no evidence to support the suggestion that all depression or depressive conditions or disorders render sufferers to be of an unsound mind for the purposes of the Act. It is conceivable that there are persons with depression in the community, whether diagnosed or not, whether treated or not, whether medicated or not, that are of no danger to themselves or anyone else. In Mr Brett's case the symptom that gave rise to the possibility of him being of unsound mind had been treated and no longer existed; the fact he remained on medication for some time after that symptom had disappeared is not, by itself, a sufficient basis to found a belief of unsound mind for the purposes of the Act. As it turns out, the fact now is that Mr Brett is no longer on medication anyway so the submission no longer applies. In the Tribunal's view, the fact it was recommended at the time medication stopped that Mr Brett be further reviewed in the future is also not a sufficient basis, in itself, to found an unsound mind. 68 On balance the evidence does not establish that there is reasonable cause to believe that Mr Brett may not personally exercise continuous and responsible control over his firearms because he is of unsound mind. Public Interest 69 In relation to Mr Klarica's submissions relating to the issue of public interest, the High Court has considered the expression 'in the public interest' in a number of matters in different statutory contexts. In O'Sullivan v. Farrer (1989) 168 CLR 210, Mason CJ, Brennan J, Dawson J, and Gaudron J state at p 216 in a joint judgement, that: Where a power to decide is conferred by statute, a general discretion, confined only by the scope and purposes of the legislation will ordinarily be implied if the context (including the subject-matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made'….. The expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ..." ….. 70 The Australian Industrial Relations Commission stated in Comalco at p 681 (per Wilcox, CJ, Keely & Moore JJ at 681). '….The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commissioner's consideration The effect of the reference is to amplify the "scope and purpose" of the legislation." 71 In Commissioner of Police v Toleafoa ([1999] NSWADTAP 9, a security industry licencing matter , the Tribunal's Appeal Panel stated (at 25) that the public interest is: '. . . an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual....'. The Tribunal found in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at 33 that these comments are equally applicable in the context of the Act and that the 'public interest' in relation to the holding of a firearms licence is referable to the objects and principles set out in Section 3 of the Act. 72 The interests of the public in circumstances such as these include its interest in its own safety, in maintaining the principle that individual access to firearms is a conditional privilege not a right and its related interest in tight, strict and fair control of the presence of weapons in the Australian community. These interests are clearly reflected in the principles and objects of the Act. 73 The issue in relation to this matter is the overriding need to ensure public safety. Mr Brett's actions have reflected a respect for the law generally, the Act specifically, for himself and the wider community. He has acted to ensure his own safety and that of any one else in the community. There has been no abuse of his firearms privilege and the facts establish that he has no intention to abuse that privilege or indeed endanger himself or anyone else. 74 I find that although Mr Brett was for a time a potential danger to himself, he is no longer such a danger nor is he a danger to any other person or the wider public safety generally. Accordingly I do not agree that it is no longer in the public interest for Mr Brett to hold a firearms licence. Fit and Proper 75 The Tribunal agrees with Mr Klarica's submission that there is little factual basis from which to conclude Mr Brett is no longer a fit and proper person to hold a licence. Although implied by Mr Klarica that he was not pressing the 'fit and proper' basis for seeking the revocation of Mr Brett's licence, just in case he was, the Tribunal finds as follows. There was no evidence of any kind impugning Mr Brett's character. He had satisfied the Act's requirements in this regard when his licence was issued to him and there was no evidence produced suggesting any change had occurred in this regard. Accordingly, the Tribunal finds there is no factual basis on which to draw the conclusion Mr Brett is no longer fit and proper for the purposes of the Act. Conclusion 76 In light of the above findings and reasoning, the Tribunal does not come to the same conclusion as the Commissioner on any of the bases of revocation: s.11(4)(c) and s. 24(2)(a) of the Act re unsound mind; s. 24(2)(d) and Regulation cl. 17 re the public interest; and s. 24(2)(c) re no longer being fit and proper. It is notable that the Tribunal had before it additional relevant evidence to that available at the time of the earlier decisions made on behalf of the Commissioner. 77 For the sake of completeness it is noted that Mr Brett wrote to the Tribunal in late April 2002 making the submission that his application be reheard on the basis his application had been 'rejected' by the Tribunal in August 2001 and providing an update as to his circumstances. The Tribunal Registry advised Mr Brett that his application had not in fact yet been decided, so had not been 'rejected' and that accordingly there was no need for the matter to be reheard. In this regard the Tribunal apologises to the parties for not making itself sufficiently clear and for the misunderstanding that followed as a result (see italicised segments of paragraph 38 above). Such misunderstandings, however, are not considered to have affected material evidence or compromised the rights of either party. Decision 78 In accordance with s. 63 (3) of the Tribunal Act, the Tribunal considers the correct and preferable decision in Mr Brett's circumstances is not to revoke his firearms licence and to set aside the reviewable decision of the Commissioner of Police.

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