Manda v Commissioner of Police, New South Wales Police Service [2001] NSWADT 13 (5 February 2001)

Last Updated: 31 December 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Manda -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 13 revised - 13-Nov-2001

PARTIES: APPLICANT

Sorin Manda

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 003131

003337

HEARING DATES: 26/07/2000, 11/09/2000, 29/01/2001

SUBMISSIONS CLOSED: 29/01/2001

DECISION DATE: 05/02/2001

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Firearms Act 1996

Security Industry Act 1997

Security Industry Regulation 1998

CASES CITED: Ward v Commissioner of Police [2000] NSWADT 28

Commissioner of Police v Toleafoa ([1999] NSWADTAP 9

APPLICATION: Firearms Act - firearms licence - issue of licence or permit

Firearms licence - issue of licence or permit

Security Industry Act - security industry licence - revocation or suspension of licence

Security industry licence - revocation or suspension of licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

J Tunks, solicitor

ORDERS: 1. The decision of the Commissioner to refuse Mr Manda's application for a Category H Firearms licence is affirmed

2. The decision of the Commissioner to revoke Mr Manda's Class 1 ABC security industry licence is affirmed.

Reasons for Decision:

1 Mr Manda has applied to the Tribunal to review two decisions made by the Commissioner of Police. The first decision was to refuse his application for a Category H firearms licence on the ground that it was contrary to the public interest. A Category H licence is for pistols, including blank fire pistols and air pistols. The second decision was to revoke Mr Manda's Class 1 ABC security industry licence on the grounds that he is not a fit and proper person to hold such a licence and it is contrary to the public interest for him to do so. Under section 11 of the Security Industry Act 1997 (the Security Industry Act), a Class 1A licence authorises the licensee to patrol, guard, watch or protect property, a Class 1B licence authorises the licensee to act as a bodyguard, and a Class 1C licence authorises the licensee to act as a crowd controller or bouncer.

2 Mr Manda applied for a Category H licence on 13 December 1999 and gave "security guard" as the genuine reason he required the licence. The application was refused. The decision to refuse the licence was affirmed after an internal review.

3 Mr Manda's Class 1ABC security licence was issued on 27 April 2000 and was due to expire on 27 April 2001. The Commissioner suspended the licence on 10 July 2000 and revoked it on 15 August 2000.

4 In brief, the Commissioner's submission was that Mr Manda should not hold a firearms licence or a security industry licence. That opinion was based on a conviction for offensive language and a belief that Mr Manda has a mental illness. Mr Tunks' primary submission was that these factors mean that it would be contrary to the public interest for Mr Manda to hold either a firearms licence or a security industry licence.

5 The firearms matter was heard on 26 July 2000, 11 September 2000 and 30 January 2001. The security industry matter was heard on 30 January 2001. These reasons relate to both matters.

Legislative scheme of the Firearms Act

6 The Firearms Act 1996 (the Firearms Act) sets up a scheme for licensing people to possess and use firearms. One of the principles of the Firearms Act, as set out in s 3(1)(a), is:

to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety.

7 One of the objects of the Firearms Act, as set out in s 3(2)(c), is:

to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm.

8 Section 16 of the Firearms Act sets out the conditions under which the Commissioner can issue a Category H licence:

The Commissioner must not issue a category H licence to any person unless:

(a) the genuine reason established by the person for being issued with the licence is any one or more of the following:

(i) sport/target shooting,

(ii) business or employment,

(iii) firearms collection, and

(b) in addition to establishing any such genuine reason, the person produces evidence to the Commissioner's satisfaction that there is a special need for the person to possess or use a pistol.

9 Mr Manda stated that the "genuine reason" he required a Category H Firearm was for use as a security guard. As well as needing a genuine reason, a person applying for a Category H pistol licence must produce evidence that there is a special need to possess or use a pistol.

10 General restrictions on the issuing of licences are set out in s 11 of the Firearms Act. Sub-sections 11(3), (4) and (7) state that:

(3) 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, and

(b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and

(c) the Commissioner is satisfied that the storage and safety requirements set out in are capable of being met by the applicant, and

(d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.

(3A) Despite subsection (3) (b), the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned.

(4) 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:

(a) the applicant's way of living or domestic circumstances, or

(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or

(c) the applicant's intemperate habits or being of unsound mind.

(7) The Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

Legislative scheme of the Security Industry Act

11 Section s 26(1)(c) and (d) of the Security Industry Act 1997 (The Security Industry Act) state that:

(1) A licence may be revoked:

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence,

(d) for any other reason prescribed by the regulations.

12 Clause 18 of the Security Industry Regulation 1998 provides that the Commissioner may, in accordance with section 26(1)(d) of the Act, revoke a licence if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it.

Issues

13 The issues in relation to the firearms matter is whether the Commissioner made the correct and preferable decision in refusing Mr Manda's application for a firearms licence on the ground that it is not in the public interest for him to hold a licence, or on any other ground available to the Commissioner. Similarly, the issue in relation to the security industry matter is whether the Commissioner made the correct and preferable decision in revoking Mr Manda's security industry licence on the ground that it is not in the public interest for him to have a licence, or on any other ground available to the Commissioner.

Documentary evidence

14 The documents before the Tribunal at the hearing on 26 July 2000 were as follows:

a statement from Mr Manda dated 10 March 2000;

the Firearms Licence/Permit `Statement of Reasons' request and adjudication sheet relating to Mr Manda and dated 3 April, 2000;

Mr Manda's application for review dated 2 May 2000 together with the Internal Review Statement of Reasons;

a statement from Inspector Corry dated 19 June 2000;

a statement from Mr Manda dated 26 July 2000;

a bundle of documents containing Mr Manda's criminal history, facts sheets, warnings, list of events, list of information reports, licence records Inquiry Result and CNI profile.

15 The documents tendered in evidence before the Tribunal on 11 September 2000 were documents from St Vincent's Mental Health Services and Cumberland Hospital, the transcript of the District Court proceedings, character references from A. Brandusiou and F. Malkoun and evidence of Mr Manda's security industry training

16 The documents before the Tribunal on the 29 January 2001 hearing were:

Commissioner's file in relation to the security industry matter;

report from Dr Law dated 25 October 2000;

statutory declaration from Dr Law dated 16 January 2001; and

letter from Dr Law to Dr Rigney dated 30 October 2000;

Discussion of evidence and findings of fact

17 The majority of the facts in this case were not in dispute. Mr Manda had a category 1A, 1B and 1C security industry licences and has been working casually in the security industry since he obtained a licence in December 1998. He does not have a permanent job. He said that many advertisements for permanent jobs require the applicant to have a security industry licence and a Category H gun licence. Mr Manda says he has completed the requirements for a gun licence.

18 Inspector Stephen Corry gave evidence of an incident that occurred on 21 March 1999. The alleged details of that incident are set out in a statement dated 19 June 2000. In brief, Inspector Corry said that he heard Mr Manda talking to himself outside the Fairfield Police Station. According to Inspector Corry, Mr Manda was repeating the words, "Fuck her up the arse" and pointing towards Nelson Street. After this behaviour went on for some time and Mr Manda adopted an aggressive tone, Inspector Corry decided to arrest Mr Manda for offensive language.

19 Mr Manda generally agreed with Mr Corry's version of events on that day, but said that he was only doing what he has a right to do, that is ask Mr Corry questions about why he wasn't doing anything about the sexual harassment he had been experiencing. In a statement dated 10 March 2000, Mr Manda says that he asked Sergeant Corry "Excuse me, how long have I got to put up with these idiots harassing me? They say to me `suck me off' and things like that, why don't you do something about it?" He also said in the statement,

"Whenever I was in the Fairfield area, the Police would follow me. . . . My specific complaint is that whenever I speak to the Fairfield Police, they say things to me like, Want to be shot?; `Suck my dick'; `Want to die?' I do not know their names but I want this to stop."

20 On 8 April 1999 Mr Manda was convicted in the Local Court of offensive language under s 4A(1) of the Summary Offences Act 1988 and fined $300. He was not present at the time of the conviction and says that he made a mistake about the date. He appealed against this decision to the District Court where the matter was dismissed pursuant to s 556A of the Crimes Act 1900.

21 When I asked Mr Manda whether he had ever been to hospital in relation to concerns about mental illness he agreed that he had been admitted to Westmead Hospital in June 2000. He said that Constable Chris Nicholson took him to "Caritas" after he had visited the internal affairs branch of the Police Service in the city. He disputes the version of events in the Commissioner's file about his visit to the internal affairs branch.

22 He said that Constable Nicholson left him at Caritas and that he was transferred to Westmead Hospital where he stayed for four weeks. He said they prescribed some medication but that he did not know what it was for. He took it twice a day while in hospital and again when he went home but he has not taken it since. Mr Manda said he did not have any objection to the hospital being requested to provide a report in relation to the time he spent there.

23 With the consent of Mr Manda, the Tribunal adjourned the hearing in order to obtain relevant documents from St Vincent's Mental Health Services and Cumberland Hospital. Other documents were also requested and produced including the transcript of the District Court proceedings, a further character reference and evidence of Mr Manda's security industry training. When the matter resumed on 11 September 2000, Mr Manda was given copies of the documents produced under summons to St Vincent's Hospital and Cumberland Hospital.

24 The documents from St Vincent's Hospital disclosed that Mr Manda had been admitted on 6 June 2000 and diagnosed with a mental disorder. In accordance with Schedule 2 of the Mental Health Act 1990, Doctor Shalini Goyal examined Mr Manda and prepared a report which stated, in part, that:

I am of the opinion that the person examined/observed by me is a mentally ill person suffering from mental illness or a mental disordered person and that there are reasonable grounds for believing the person's behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary for the protection of others from serious harm.

25 After examining Mr Manda, a medical practitioner, Dr Kathleen Smith, concluded that:

The longitudinal history suggests a psychotic illness. His behaviour in response to his delusional beliefs is endangering the safety of others and his reputation in his employment as a security officer. He refuses to consider he has an illness. He refuses treatment. He needs hospitalisation for assessment, diagnosis and treatment.

26 Dr Smith's notes also contain the following observation:

He tells me that he now plans to take justice into his own hands and will punch those that harass/offend him. He slams a closed fist into the other open hand as he says this.

27 Mr Manda was transferred to Cumberland Hospital on 7 June 2000 where he remained until 5 July 2000. In a report prepared for the Local Court hearing, Amelia Bongon, a social worker stated, in part, that:

He presented as quite paranoid and delusional. He believes that he has not been given any justice about his complaints of harassment and discrimination from police.

Patient is suffering from acute psychosis and he remains insightless into his mental state.

He is at risk of harm to others and to his own reputation. Further involuntary hospitalisation for his assessment and treatment is important.

28 Mr Manda understood that he has been diagnosed with a mental illness but did not accept that the diagnosis was accurate. He denied saying that he plans to take justice into his own hands. He requested an opportunity to obtain his own independent medical report from a psychiatrist. I granted him an adjournment to provide him with an opportunity to do so. He produced a report from Dr SK Law dated 25 October 2000 which stated, in part, that: "Mental examination has not revealed any definite features of a mental imbalance." Mr Tunks, on behalf of the Commissioner, summonsed Dr Law to give evidence before the Tribunal. Dr Law provided a statutory declaration dated 16 January 2001 in which he indicated that Mr Manda had seen him again on 1 December 2000. Dr Law stated that:

. . . on this second occasion he has revealed clear-cut paranoid features, and he could be diagnosed suffering from a paranoid disorder. Also, he has revealed a past history of having been treated for a nervous condition a St Vincent's Hospital.

It is now clear that Mr Manda does suffer from a mental illness (paranoid disorder) but he is lacking insight into his illness. I am unable to recommend him to have a security licence.

29 On receipt of the second report, Mr Tunks advised that he did not require Dr Law for cross examination.

Findings of fact

30 I am satisfied on the basis of the medical evidence that Mr Manda has a mental illness. One of his symptoms is that he has delusional beliefs that he is being sexually harassed, followed by police, laughed at and verbally abused. He does not accept that he has a mental illness and refuses treatment.

31 There is also evidence, which I accept, from staff at the Cumberland Hospital, that he has threatened to harm others. There was no evidence of Mr Manda actually attempting to harm himself or anyone else.

Application of law and decision

32 The Commissioner's primary submission was that it was contrary to the public interest for Mr Manda to have a firearms licence or a security industry licence.

33 In Ward v Commissioner of Police [2000] NSWADT 28, the Tribunal said at paragraphs 28 and 29, that

The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.

34 The Appeal Panel of this Tribunal considered the meaning of "public interest" in the context of the Security Industry Act, in Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at 25). In that case the Appeal Panel stated that the public interest is:

. . . an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

35 Similarly, in relation to a decision based essentially on the applicant being of unsound mind, it is reasonable to infer that parliament intended that the public interest discretion operate in areas where that ground would not be sufficient to justify a refusal.

36 Section 11(4) provides, in part, that the Commissioner must not issue a licence to a person if he "has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms" because the applicant is of "unsound mind." On the basis of this evidence, quite apart from any broader considerations of public interest, there is reasonable cause for a belief that Mr Manda would not personally exercise continuous and responsible control over firearms if he was granted a licence.

37 In relation to the security industry matter, because there is no equivalent of s 11(4) of the Firearms Act in the Security Industry Act, the basis for the Commissioner's decision must be either that Mr Manda is not a fit and proper person to hold a licence or it is not in the public interest for him to do so.

38 Mr Manda is under the impression that he has been the victim of sexual harassment and verbal abuse by members of a family located in the Fairfield area and that police have verbally abused him and laughed at him. While is suffering from such delusional beliefs, I am satisfied that it is not in the public interest for him to have a security industry licence. While he may be able to function effectively for periods of time, the symptoms of Mr Manda's mental illness mean that he is not in touch with reality at all times. Consequently h is not mentally competent to carry on security work. For this reason it is not in the public interest for him to have a security industry licence.

Orders

39 1. The decision of the Commissioner to refuse the applicant's application for a Category H Firearms licence is affirmed.

2. The decision of the Commissioner to revoke the applicants Class 1 ABC security industry licence is affirmed.