Moroney v Commissioner of Police, New South Wales Police Force

Applicable legislation

1. Section 24(2)(d) of the Act provides that a firearms licence may be revoked for, inter alia, any other reason prescribed by the regulations.
2. Clause 19 of the Firearms Regulation 2006 prescribes that "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."
3. The issue in this case is thus whether it is in the public interest for the applicant to continue to hold a firearms licence.

The evidence

1. The respondent called no oral evidence but relied on the s 58 documents (exhibit R1).
2. The applicant had contacted Dr Pakula to ask him to give evidence at the hearing, but he declined to do so except on conditions that the applicant was unable to meet. The applicant had arranged that a psychologist, Mr Craig Facey, would give telephone evidence at the hearing, but it proved impossible to contact him on the day.
3. The applicant then gave oral evidence, in which he stated that he is currently not working but is in receipt of a Department of Veterans' Affairs pension, having been discharged from the air force on medical grounds. He had served as an airfield defence guard. He had been a licensed shooter since he was twelve, when he received a minor's permit. He had held a licence since he was in his early 20s and had done a great deal of shooting.
4. The bicycle accident that had caused his brain injury occurred in April 2012. His first suspension arose because of Lyrica, which had been prescribed for him without any testing. It affected his moods and his home life, but he was not violent. As he nevertheless knew that he was undergoing mood swings and was not himself, he arranged to admit himself to South Coast Private Hospital so that he could change his medication, as it was not safe to cease taking Lyrica abruptly. The treatment had worked well.
5. The medications he is now taking include sodium valproate twice a day, Amitryptiline, Seroquel and Nexium, the last-mentioned being for digestion. The program seems to work well and he no longer has mood swings. Every day he is 100 percent compliant with his medication regime and has alarms on his telephone by way of reminder. After the accident, the Defence Force gave him a medical discharge and arranged a pension for him, but he had to leave the RAAF accommodation he had been occupying in Queensland. He and his partner then moved to New South Wales, where they stayed with his grandparents at Sussex Inlet for the ensuing twelve months.
6. He had seen Dr Pakula since his stay at South Coast Private Hospital to ensure that he was progressing satisfactorily. When he went to see the doctor on 24 September 2014, Dr Pakula asked him how he and his partner were, checked his medications and asked about his plans. He appeared pleased with the applicant's progress. They discussed guns with him, the applicant explaining that it was a family interest and that they would travel to a shoot as a family. His son aged twelve now had a minor's permit.
7. He had been surprised by the revocation and initially thought it was an error, as there had been no issue of violence. At that stage he had a rehabilitation coordinator and a speech therapist. He now sees an exercise physiologist, Sophie Garrett. They go for a run together and she is seeing to his core training. He started to see Craig Facey following a referral from his general practitioner after Mr Churchward closed his doors. Mr Facey wrote to Dr Pakula on 2 December 2014, after the doctor filed the s 79 notification in October. He had still been seeing Mr Facey but has been told that Mr Facey no longer needs to see him.
8. Asked in cross-examination when he had noticed that his brain injury had caused mental effects, he replied that Lyrica was the worst of it, and showed that something was not right. Dr Liu knew that Lyrica does not agree with about 50 percent of patients. It had made him edgy and testy, characteristics that had not been an issue before that. He could not recall when he had started taking Lyrica, but he stopped in about April, before entering hospital, and that had rectified his mood and other problems. Being in hospital had given him a controlled environment, however.
9. Referred to Dr Pakula's update notes of 24 September 2014, he denied that he had been paranoid, but said he had been frustrated. He was not sure about the "short fuse" statement, but had been told that he was a different person while on Lyrica. After seeing him for only half an hour, he could not understand how Dr Pakula could write what he had written, and then leave it for three weeks before making a report under s 79. He was not aware that Dr Pakula had been under the impression that his licence had already been suspended.
10. Asked by Mr de Bunoza if after ceasing Lyrica he had still suffered from depression and paranoia, he replied that he had never been paranoid. He was then asked whether he still had some "issues", and replied that he only had 30 minute appointments. As to whether he still suffered from any of the conditions listed in Dr Pakula's risk assessment of 4 May 2015 he replied "Not really" but added that he could get "down" from the fact of no longer working, but no more than anyone else in that position. He still sees Dr Pakula every three months for assessments, which consist of chats for 20 or 30 minutes, the last one being a month ago. He no longer sees Dr Liu, but did see Dr Huntley a month ago. He no longer needs hospital treatment and has had no relapses. He is not actively seeking work, but is allowing things to settle down first. He believes he would be able to work.
11. He told Mr Kable that he was keeping active, and had completed a welding course at TAFE, as he would like to work as a welder. The course finished in November 2014 but there were insufficient numbers to present an advanced course this year.
12. In re-examination he was also asked if there had been any change in his condition between September 2014 and February 2015, and replied that he believed it was the rehabilitation coordinator who had prevailed on Dr Pakula to make the s 79 notification, as the doctor himself had not been concerned.
13. Ms Tracey Willett, the applicant's partner of sixteen years, said that she attended his appointments with Dr Pakula. The September 2014 appointment appeared normal, and they discussed goals, his feelings, medications and his proposed competition shooting schedule, including the Pan Pacific competition on the Gold Coast and another in New Zealand. He is determined, works hard and attends all his appointments, trying all recommended therapies. Previously his temper had been short because he had lost all he had trained for in the air force and was very goal oriented. He had missed a deployment to Afghanistan for which he had been training. His behaviour had improved, however, and life was now normal. All the family are shooters and their son wants his father to teach him clay target shooting. She has never entertained any fears in connection with the applicant's holding a licence.
14. In cross-examination Ms Willett said that initially if he had been under pressure, he would become confused, but he had made progress under therapy and now his ability was returning. There had been a period, while he was on Lyrica, when he had been "cranky" and frustrated, but there had never been a time when she had thought he should not have a licence. He had never been violent and she had never been frightened of him. After he had ceased taking Lyrica, there had been no symptoms. He had settled down instantaneously in hospital, had mellowed and was now able to deal with problems. In relation to Dr Pakula's September 2014 report, he had not raised any concerns at the time, but they had both been frustrated by the prevailing uncertainty and by living with his grandparents. The applicant had made better progress than the medical authorities had predicted.
15. The applicant then called Mr Paul Hamilton, an electrical engineer and former police officer, who has known the applicant for twelve years. Mr Hamilton has been president of the Shoalhaven Clay Target Club for two years. He first met the applicant when he was working as an interstate truck driver but then he had taken on a demanding role in the RAAF. The accident had impaired his confidence, balance and memory. He had joined the club when they had returned from Queensland, and it had been beneficial for him. His balance and coordination had all improved and he was now quite normal, and as safe as anyone else on the range.
16. In cross-examination Mr Hamilton said that the applicant's day-to-day short-term memory had been affected by the accident, but he was now almost back to normal. He hoped it would continue to go that way. He had never felt the applicant should not have a gun. He had seen no mood changes, he had always been the same, and while he had been upset about loss of his licence, his reaction was just normal.

Applicant's submissions

1. The applicant lodged written submissions (exhibit A1) in which he argued inter alia that it was while he was attending mental health practitioners that he was prescribed certain medications and his behaviour was questioned, recommendations being forwarded to the registry to suspend his firearms licence. While those concerns were addressed at the time, and both treating doctors subsequently withdrew their concerns over the applicant holding a licence, the respondent took the position that there had not been sufficient time since the withdrawal by the doctors [of their objections], and the fact that further treatment and attendances were prescribed indicated that he was still somewhat of a risk to public safety.
2. The applicant had maintained his attendance at all scheduled appointments with health professionals and had shown a marked improvement since his medication was changed. One of the doctors who previously recommended that his licence be suspended, Dr Pakula, had provided a risk assessment revoking his previous advice to suspend and endorsing the issue of a licence to the applicant. A further report by the psychologist Craig Facey also recommended the return of his licence. Those reports have now answered all of the relevant questions posed by the Firearms Registry. Both reports could also be read together with a similar report by David Churchward of 25 June 2014, which also endorsed the applicant's right to a licence. All three reports were in the form recommended by the registry in dealing with a risk assessment and should be given the greatest weight.
3. His negative answer to the question in his application as to whether he had received any treatment for mental illness in the previous twelve months was not incorrect. He had received a brain injury but no treatment for any mental illness. The applicant also relied on the case of Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59 as an appropriate parallel.
4. In oral submissions Mr Kable on behalf of the applicant submitted that the applicant is well adjusted, despite his serious brain injury. Lyrica had aggravated his symptoms and caused paranoia. Between his s 79 report in September 2014 and February 2015, Dr Pakula had changed his view and recommended the return of the applicant's license on the ground that he presented no risk to public safety. Dr Stevenson's report of 8 December took a similar position.
5. The application is also supported by references from Mr Hamilton, President of the Shoalhaven Clay Target Club, Mr David Loose, Dr Graham Morgan (the applicant's general practitioner), the exercise physiologist Sophie Garrett and Mr Mark Warren, who works for Nowra-based company called Interchange, which provides services for people with disabilities, and has been the applicant's support worker for about twelve months.
6. In reply Mr Kable rejected the respondent's submission that the lay evidence merited little weight and stressed its strongly supportive character. He referred also to Craig Facey's risk assessment of 29 April 2015 in which the psychologist stated that there was a normal period of the disturbance after a brain injury for the first couple of years, but that time had now passed. He had discussed the case with David Churchward and Dr Pakula. There had never been any psychometrically measured inability on the applicant's part to exercise control of his actions rationally. Mr Facey had also had the applicant complete an extensive mood assessment program at the Blackdog Institute in Randwick, which showed that the applicant is of sound mental health and also notes a positive and highly effective personality type.
7. The s 79 report was out of context and the lay evidence showed that significant changes had followed from discontinuing Lyrica. There might be a theoretical risk of relapse, but the evidence of those who know him would rate the likelihood of that as being very low. Mr Facey's report was perhaps a little more personal than that of an independent expert might normally be, but he had maintained a long period of professional treatment of the applicant. Consequently there was virtually no risk to public safety restoring the applicant's license and it was not contrary to the public interest to do so.

Consideration

1. Under s 63 of the Administrative Decisions Review Act 1997, the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
2. The tribunal has jurisdiction to exercise any functions conferred or imposed on it by the Civil and Administrative Tribunal Act 2013 No. 2 (s 29) and the Firearms Act, including the Commissioner's revocation of a licence (s 75(1)). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357). As the use of the word "may" in s 24(2) makes clear, the Commissioner has a discretion whether or not to cancel a licence. The Act provides no explicit guidance on how the discretion should be exercised, however.
3. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is "conditional on the overriding need to ensure public safety". Consistently with that approach, the Act confers on the respondent the power to revoke a licence in circumstances where it is considered that the holding of a licence is not in the public interest.
4. The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities, to the standard enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336. There is, however, no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34].
5. The applicant relied on the analysis of the risk to public safety and "fit and proper person" tests in Green at [73] - [79] in which I concluded that those tests are applied in a nuanced manner, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety. As that decision has apparently not been criticized, I incorporate that discussion by reference in these reasons.
6. The respondent's case is that there is a continuing risk to public safety from the applicant's holding a licence because despite improvements in his medical symptoms, he continues to suffer from the effects of his severe acquired brain injury, there has only been a relatively short time since the period March to September 2014 during which health professionals considered that he had an impairment affecting his ability to exercise control and responsibility over firearms, and there is a risk that the applicant may relapse. It is not disputed that the applicant has no criminal record and does have an unblemished firearms history.
7. As the case turns on the applicant's medical condition and treatment history, it is useful to list the various stages in his treatment chronologically. It will be recalled that the accident causing his head injury occurred on 4 April 2012. Later, on 13 September 2013, he applied for a firearms licence. Subsequently:

• On 20 February 2014, Dr Liu lodged a s 79 notification reporting increasing behavioural problems with anger brought on by simple triggers, impulsiveness, and poor memory. He was not improving but had some insight into his condition. He had said that he would be "better off not living if not improving". The first licence suspension ensued on 26 February 2014.
• Mr Churchward's psychological assessment dated 25 June 2014 noted "some deficits" in areas of insight, impulse control and judgment. It concluded, however, that it was highly unlikely that impairments associated with his injury would impact on his ability to exercise continuous or responsible control over firearms. Apart from the period when he was on Lyrica, he demonstrated no inability to form a rational judgment or control physical acts. If he remained compliant with his medication regime and his current treatment plan, the chance of relapse was minimal. His licence was then restored on 3 July 2014.
• On 17 October 2014, Dr Pakula sent the respondent a second s 79 notice stating that the applicant had poor memory, paranoia, anger problems and depression and was sometimes suicidal. The applicant's license was then suspended a second time, on the same day.
• On 11 December 2014, the applicant sent to the respondent a letter from Mr Facey dated 2 December 2014 in which the psychologist said he had observed that the applicant's shooting had been a key element in his recovery by its integral role in keeping him engaged in prosocial community relationships. Having administered several psychological tests, Mr Facey concluded that the applicant experienced and responded to anger only to a normal degree. His life was stabilizing and was close to normalizing. Mr Facey said he would strongly support the applicant's regaining his licence and would feel safe in his company if he were firing a weapon. The licence was, however, revoked on 28 January 2015.
• On 6 February 2015, Dr Pakula sent the respondent a further s 79 notice stating that the applicant had now improved. He had obtained a second opinion by a psychiatrist, Dr Stevenson, and both felt that his licence could be returned. Dr Stevenson's report stated that he had reviewed the case and had spoken to Dr Jim Huntley, who had sent him a neuropsychiatric report. Following interviews with the applicant and Ms Willett, who said that he had not been displaying any overt aggression apart from some damage to property when particularly upset and had never been violent towards her apart from pushing her at one point, he formed the opinion that there was no evidence of paranoid psychosis. He thought that if he was being regularly followed up the licence could be returned, subject to repeat neuropsychiatric testing with Dr Huntley and liaison with Dr Liu.
• Mr Facey completed the strongly supportive risk assessment dated 21 April 2015 in which he said that normal thought disturbance following brain injury had now passed and there had never been any psychometrically measured ability on the applicant's part to exercise control of his actions rationally. Relapse was "not significantly probable". A mood assessment carried out by the Blackdog Institute showed him to be of sound mental health, and with a positive and highly effective personality type. Mr Facey strongly supported the applicant's holding a firearms licence. He would be pleased to attend a rifle range with his children if the applicant were present.

1. That chronology shows a trajectory of improvement, notably following the cessation of Lyrica, but with concerns about poor memory, paranoia, anger problems, depression and suicidal ideation as late as October 2014. The applicant contended that those concerns had been retracted, but that is somewhat overstating the position. The applicant is currently taking regular dosages of several psychotropic medications. While Mr Facey is certainly strongly supportive (though he could not be contacted to give telephone evidence as arranged), Dr Pakula's favourable assessment is qualified by the need to ensure strict adherence to the correct dosages and to continue regular assessments of the applicant's mental state and medication needs. It states in three places that there is a risk of relapse. Dr Stevenson's recommendation was subject to further neuropsychiatric testing by Dr Huntley and liaison with Dr Liu.
2. It should also be noted that whereas in Green the applicant, although still subject to a psychiatric diagnosis, had shown no behaviours of concern for twenty years, in the present case Mr Moroney's symptoms had prompted two separate s 79 notifications in the one year, the more recent of which was made only nine months ago. While evidence does not show that the applicant has ever threatened violence against others, Dr Liu and Dr Pakula each separately recorded observations of suicidal ideation in 2014. Public safety under the Act includes the safety of the applicant.
3. A former marathon-runner and serviceman, the applicant has a disciplined and determined attitude to life. I accept the character evidence of Mr Hamilton and of the referees and have no difficulty in believing that the applicant is a responsible and law-abiding man of good character. The professional observations of Dr Morgan and the physiologist Ms Garrett report no outward signs causing concern. He has no criminal record and his firearms history is unblemished.
4. In his eagerness to recover his licence, the applicant does, however, display some tendency to diminish the severity of his symptoms. This was evident at the hearing in a propensity to give non-responsive answers to straightforward questions about his condition. For example, when asked when he had noticed that his injury had caused mental effects, he replied only that Lyrica had been the worst of it and had shown that something was wrong. To a question enquiring whether he was still suffering from depression and paranoia, he answered only that he had never been paranoid. When then asked if he was still experiencing mental "issues", he replied that he only had 30 minute appointments. As to whether he was still suffering from any of the conditions listed in Dr Pakula's risk assessment of 4 September 2014, he replied only "Not really" and added that he would sometimes become depressed over not working, but no more than anyone else. In re-examination he was asked if there had been any change in his condition between September 2014 and February 2015, and replied that he believed it had been the rehabilitation coordinator who had prevailed on Dr Pakula to make the s 79 notification, a completely irrelevant response.