DEP v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-05-31

REASONS FOR DECISION

DEP (the Applicant) is a currently serving member of the NSW Police Force (NSWPF). He has been licensed to possess firearms in a personal capacity since 2010, for the genuine reason of recreational hunting and vermin control.
Between 2018 and 2021 the Applicant's intertwined personal and professional life was tumultuous. The Applicant was stationed at a Police Station in NSW. During that time, the Applicant, his former partner and the mother of his three children, and her new partner, were all stationed in the same geographical area. There were significant personal issues between the Applicant, his former partner and her new partner, which resulted in safety concerns at their workplaces, personnel issues at work, allegations of offensive conduct, allegations of offensive graffiti, and allegations of fear and intimidation. Various management interventions, misconduct investigations and disciplinary processes were engaged which culminated in the Applicant's access to police stations in the Murray River Police District (MRPD) being revoked, his employment transferred and being stood down from duty on 7 October 2021. The Applicant's former partner and her new partner were discharged from the NSWPF in September 2022 and August respectively.
On 7 October 2021 the Applicant's personal firearms licence was suspended by a delegate of the Commissioner of Police, NSW Police Force (the Respondent) on the ground of "concern for welfare - E84379642", and six firearms were seized. On 9 November 2022 the Respondent revoked the Applicant's firearms licence on the ground that it was not in the public interest for the Applicant to hold a firearms licence pursuant to s 24(2)(d) of the Firearms Act 1996 (the Act) and clause 20 of the Firearms Regulation 2017 (the Regulation), due to the Applicant's behaviour and mental health raising concerns about his ability to exercise continuous and responsible control over firearms, and risks to public safety (the revocation decision). The revocation decision also stated: Information available also indicates that as at this date, you have not returned to your employment with the NSW Police Force.

Legal principles

The Act establishes a legislative framework to regulate the possession, use, acquisition and supply of firearms. The Tribunal has jurisdiction to review the Respondent's decision pursuant to section 75(1)(c) of the Act and section 30 of the Civil and Administrative Tribunal Act 2013. Section 63 of the ADR Act requires the Tribunal to make the correct and preferable decision on the basis of the evidence available at the time, together with any additional or later material: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77.
Section 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety: 1. The underlying principles of this Act are: 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety: 1. by imposing strict controls on the possession and use of firearms, and 2. by promoting the safe and responsible storage and use of firearms, and … 1. The objects of this Act are as follows: … (b) to establish an integrated licensing and registration scheme for all firearms, (c ) 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, ( d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, …
The power to grant an application for a firearms licence under s 11 of 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: Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159 at [1]. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 at [117].
Section 24(2)(d) of the Act provides that a licence may be revoked for any other reason prescribed by the Regulations. Clause 20 of the Regulations provides that the Respondent may revoke a licence if she is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

Public Interest

The expression "public interest" is not defined in the Act, but has been discussed in a number of Tribunal decisions. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
The public interest encompasses broader considerations beyond public safety. It is an inherently broad concept and is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, it was stated 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.
In Director of Public Prosecutions v Smith (1991) 1 VR 63 (Smith) the Court observed: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
A discretion to make a decision 'in the public interest' is not confined except by the scope and purposes of the legislation itself: DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15], referring to O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson, Gaudron JJ. The discretion must be exercised to promote the objects of the firearms legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23].
As stated by the Administrative Decisions Tribunal in Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276: 'The Applicant's individual interest in retaining his Category AB Firearms Licence must be subordinate to the public interest in ensuring public safety.'
In an often-quoted passage, Hennessy DP in Ward v Commissioner of Police [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. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130].
Since then, Hennessy DP cautioned against applying that language in a mechanistic way, noting in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that: "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests".
Other cases have pointed out that 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: see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66], Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32].
In determining whether the issue of a licence is contrary to the public interest, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] to [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30].
In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act.
Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25]. The public interest requires that all licensees be aware of and comply with the legislative requirements: Vella v Commissioner of Police [2003] NSWADT 91 at [41].
The licensing regime is also concerned with "making decisions that are consistent with a need to reduce any risks to a minimum": Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36].

Applicant's evidence

The Applicant's evidence was to the effect that he believed people at NSWPF were making false mental health allegations against him as reprisal for whistle- blowing, following his report to his supervisor in early 2019 of police officers engaging in illegal drug use and "behaving in a manner that was unsuitable for a police officer". He claimed that since making the report to his supervisor, from early 2019 to 2021, he had been the subject of ongoing workplace and other harassment, damage to property, trespass and threats to his partner by other police officers.
In early 2021 his access to police stations in the MRPD was revoked and in mid-2021 his supervisor suggested he transfer his place of employment from a Police Station in the MRPD to a Sydney-based police station. In his view, the request that he transfer work locations was made on the basis of anonymous, unverified and unfounded allegations against him. He and his partner did not wish to move. The events that followed were described by him in his statement of 15 April 2023 as follows: On 6 October I received a letter from the Commander, Traffic South West, Traffic and Highway Patrol Command, indicating that there is considerable interpersonal conflict between myself and other staff within my work location. The letter goes further to state that there is a history of complaints lodged, anonymously, against me, based on conduct whilst on duty and off duty. I can only assume these relate to my Ex-partners unverified, and unfounded allegations in COPS Event ID E81493758… The letter proposed that I transfer to [another] Highway Patrol. I discussed this with my partner and the answer remained no we should not be moving because of other officers' conduct. On or around 7 October 2021 I entered … Police for my shift, I then went to [a police station] with my Sergeant and went to my inspector's office where I was told that I was being transferred against my will from my place of employment to another station that would require me to leave my home. My inspector advised me that I must transfer stations as I will not be allowed to continue to work at … Police Station and the … Highway Patrol. As a result of the Inspector's statement, that I must transfer stations, I walked out of his office in frustration and asked that I be allowed to go home. At no time did I threaten self-harm, or harm anyone else. My actions that day, 7 October 2021, constituted nothing more than frustration with the position I was put in. On 7 October 2021 within hours of returning home, the police from … Police station arrived at my home and seized my personal firearms. Advising me that it was due to an internal NSW Police matter involving me as a serving police officer. Since 7 October 2021 I have not been back to work as a police officer in the … Police Station or any other police station.
Despite not returning to work as a police officer since 7 October 2021, the Applicant remained employed by the Respondent.
In oral evidence before the Tribunal the Applicant stated that he had first been diagnosed with PTSD in 2019 and referred to psychologist Chris Gullifer for treatment. His previous treating doctor retired and his current treating doctor, Dr Maha, had access to his medical records. Since he was stood down in 2021 he had been providing the NSWPF with medical certificates regarding his fitness for duty. Mr Brown had certified him fit but his GP had separately been providing medical certificates to his employer which stated that he was not fit for duty. He said that he had not seen his GP since 4 April.

Inspector ABC's evidence

Inspector ABC is the Applicant's sector Inspector/manager at the NSW police station sector. This sector includes various areas within NSW. Inspector ABC's role includes managing professional standards and staff conduct within the sector.
Inspector ABC's statement provided a chronological record of the NSWPF's concerns regarding the Applicant's behaviour and conduct, both professionally and personally, from his own knowledge and from review of relevant records. This included: 11. In or around August 2019, it was alleged that the Applicant engaged in conduct that resulted in him being cited as a 'subject officer' for the issue of 'repeated unreasonable and unprofessional conduct toward another police officer'. The conduct included: 1. the Applicant sticking his middle finger up at Senior Constable FGH; 2. the Applicant saying to Senior Constable FGH, words to the effect of, 'don't talk to me cunt', 'well do you want to have a go?' and 'your days are numbered'; and 3. the Applicant making comments to a staff member that he had purchased a residence in Berrigan, NSW, which is where Senior Constable FGH lives together with Senior Constable HIJ, to, words to the effect of, 'make [Senior Constable FGH] and [Senior Constable HIJ'] lives miserable' and that he believed that Senior Constable FGH was trying to 'bait' the Applicant as he 'had it in for him'. … 13. On 30 April 2020, Superintendent SPE and Senior Sergeant MEP met with the Applicant, Senior Constable HIJ and Senior Constable FGH at the Police Station. The meeting was held due to ongoing issues between the parties and delays in facilitated discussions with the Respectful Workplace Unit due to the COVID-19 pandemic. The meeting resulted in the Applicant and Senior Constable FGH shouting at each other. Following the meeting, Superintendent SPE initiated an interim risk management plan and directed the parties to work at different police stations as of their current shift. … 15. On 23 June 2020, the Respectful Workplace Unit facilitated a discussion between the Applicant, Senior Constable HIJ and Senior Constable FGH regarding their ongoing issues. Allegations were made by all parties, with the Applicant largely alleging that Senior Constable HIJ and Senior Constable FGH were 'baiting' him to engage in certain conduct, and Senior Constable HIJ and Senior Constable FGH alleged that the Applicant was the aggressor, had been spreading rumours about them and was uncivil towards them at work. During these discussions, the Applicant stated that he will 'snap', which would result in a physical altercation with Senior Constable FGH. Senior Constable HIJ stated that she felt 'intimidated' and 'scared of [the Applicant]'. … On 5 May 2021, I had a conversation with the Applicant regarding ongoing issues between him, Senior Constable FGH and Senior Constable HIJ during February and March 2021. These included allegations of the Applicant driving past Senior Constable HIJ and sticking his finger up whilst both were off duty, further graffiti appearing …and an allegation that whilst off duty in Cobram, Victoria, the Applicant yelled out 'Fuckin slut' and words to the effect to 'Ugly' or 'Druggie' at Senior Constable HIJ. In this conversation, the Applicant continually denied any wrongdoing, and stated that Senior Constable FGH and Senior Constable HIJ were agitating him and doing the wrong thing. … In or around May 2021, I became involved in the management of an internal misconduct issue involving the Applicant. The Applicant attended a mental health incident where an off-duty police officer had recalled himself to duty to deal with a teenage boy threatening self-harm. The Applicant attended the incident in a marked police vehicle. Upon learning that Senior Constable FGH was coming to assist, the Applicant left the scene, leaving the off-duty officer unarmed and in the company of family and paramedics before the boy had been detained. During this time, as part of managing the misconduct issue, I also became aware that the Applicant had exhibited other concerning behaviour, including: leaving work approximately 40 minutes early to avoid contact with Senior Constable FGH; and requesting that a fellow police officer not provide back up to Senior Constable FGH, who was attending a domestic violence incident, and when the other officer refused, the Applicant allegedly stayed around a police vehicle and did not assist whilst Senior Constable FGH was alone with an offender and other police were inside a residence. These incidents were investigated and sustained against the Applicant. … On 25 May 2021, the Applicant failed to report to duty or notify of his absence. After being contacted by supervisors, he was permitted to be absent and took leave for the remainder of the week. On 28 May 2021, I was advised by Superintendent SPD, Commander of the MRPD, that due to workplace, health and safety concerns, he had revoked the Applicant's access to police stations within the MRPD. Superintendent SPD, consented to the Applicant remaining on interim risk management plan arrangements until active investigations could be finalised. … 32(a) On 23 June 2021, the Applicant was advised by email from Senior Constable JOP that a penalty notice he had issued was being heard at Corowa Local Court on 21 July 2021, which required the Applicant's attendance as the officer in charge. I understand that the Applicant was also verbally notified of the court date. 32(b) I subsequently became aware that on 21 July 2021, the Applicant failed to attend Corowa Local Court for the hearing of the matter. The matter was withdrawn and categorised as a 'failed prosecution'. 32(c) After the matter was withdrawn, I understand that the Applicant told Sergeant KPE that he, 'simply forgot the matter was proceeding to hearing'. Consequently, the Applicant was required to participate in formal counselling, and named as 'subject officer' for the issue of 'prosecution - fail to attend court'. …
Inspector ABC's affidavit then gives first-hand evidence of what occurred on 7 October 2021, which became the subject of the Applicant's firearms licence suspension: 34. On 7 October 2021, the Applicant attended a meeting with myself and Sergeant KPE at the Police Station. I advised the Applicant that pursuant to section 69 of the Police Act 1990 (NSW), it was considered to be necessary and in the interests of the NSWPF to transfer the Applicant to another location due to the increased risk to workplace safety that the Applicant posed, and his presence in the Command not being in the interests of policing the local community. 35. The Applicant became angry and stormed out of the meeting, despite me telling him to stay so the transfer could be explained further. Sergeant KPE followed the Applicant and attempted to calm him. The Applicant demanded to be driven to the police station, which was refused. Sergeant KPE told the Applicant to return to the meeting, however, the Applicant refused. The Applicant left the police station. The Applicant did not answer a call made to him by Sergeant KPE. 36. I sought assistance from several police officers to conduct a search for the Applicant, including physical searches and reviewing… CCTV footage. Several unsuccessful calls were made to the Applicant. 37. Due to the Applicant's level of anger, as time elapsed, I and other officers had concerns about his welfare. The Applicant remained at large for over 45 minutes. 38. I became aware during a phone call from a staff member at another Police Station that Mr HBE, a former police officer, contacted Ms DBE, former police Superintendent, stating that he had seen a Senior Constable walking towards the police station in a very upset state. 39. I contacted several other police officers to attend the Applicant's location, including Sergeant KPE. On arrival, the Applicant was highly agitated and aggressive. I parked my car and approached the Applicant. A conversation to the following effect occurred: I said: Stop. Let's talk about what is going on. The Applicant said: If you try and take me back to the police Station, you're gonna have to fucking fight me. I said: Don't challenge me. I am not here to fight you. 40. At this point, I held concerns that the Applicant was going to become violent, based on his agitated state, hostility and body language, as his chest was puffed out, he was scowling and his fists were clenched. As a result, I tried to discretely open my oleoresin capsicum spray pouch while attempting to verbally disengage the Applicant. 41. A conversation to the following effect occurred: I said: I am concerned about your welfare. The Applicant said: I'm fucking fine. I said: Based on my concerns, I am going to remove and secure your firearm. The Applicant said: (while taking the firearm off) I don't give a fuck. I'm not going to fuckin the city. I said: I am not going to make you to go the police station in these circumstances. You can go back to [another] police station with Sergeant KPE, but I need you to understand what is going on. I can see that you don't have all of the information, you are angry, but understanding the transfer process might help you better navigate the situation. You should to engage with support services and we can try and get you some help. The Applicant said: No, I'm fucking fine. You told me before that I was a victim in the matters [with Senior Constable HIJ and Senior Constable FGH]. I said: I never said that. But, all of you played a part in the issues at hand. The transfer process is not about laying blame, it is about managing risks to the police force generally. The Applicant said: I should've flogged the pair of those cunts when I had the chance, I would've been treated better. 42. During this interaction, Sergeant KPE and Sergeant SSE arrived. My conversation with the Applicant continued with words to the following effect: I said: You have a good Sergeant here [referring to Sergeant KPE] who is also worried about you. The transfer is a proposal at this stage for you to make submissions. The Applicant said: You already know my fucking answer. I refuse. I'm not fucking going anywhere. I will not nominate any locations. You'se are fucking sacking me. I'm going to lose my house, my car, my family, would you leave your fucking family? I said: Fortunately, I haven't gone through what you have gone through in the past few years. The Applicant said: I wish you cunts fucking did so you would understand. I said: I wouldn't wish your circumstances on anyone. However, I am standing you down from duty due to my concerns about your welfare. You can travel back to the police station and we will arrange for the transfer paperwork to be served to you. 43.The Applicant stood by Sergeant KPE's Highway Patrol vehicle and did not speak to me further. I told him I was available if he needed any support or assistance and would be in touch moving forward. 44. On my request, Sergeant KPE secured the Applicant's firearm, belt and Individual Light Armour Vest (ILAV) (containing arms and appointments) in my police car. 45.The Applicant agreed to be taken to the Police Station with Sergeant KPE. 46. I organised for Acting Inspector LGP to seize the Applicant's personal firearms due to my remaining concerns about the Applicant's welfare, the comments made by the Applicant and the rage he displayed. I believe that Acting Inspector LGP informed Sergeant KPE of this, and that Sergeant KPE told the Applicant that his personal firearms would be seized on his route to the police station. This made the Applicant angry and he stormed off from Sergeant KPE's vehicle. Sergeant KPE located the Applicant and told him to return to the car, which the Applicant eventually complied with. 47. Later, police attended the Applicant's residence and seized six firearms and his firearms licence. 48. I also organised for Sergeant KPE to serve on the Applicant the letter outlining the management initiated transfer and an email from me… 50. After the Applicant was stood down from duty and his ILAV had been secured, I began recording details of the items to properly account for each. In doing so, I sought the serial numbers attached to ballistic plates, which are a prohibited article. However, I found out that the vest did not contain ballistic plates. An investigation has since revealed that the Applicant had removed the plates and failed to secure them appropriately, resulting in their absence. Should the Applicant return to duty, he is to be subject to internal management action regarding this incident. 51. Following these events, later on 7 October 2021, I created a 'SITREP' report which outlined the day's events, the issues with the Applicant's conduct and my concerns regarding his welfare. …
Inspector ABC explained the Respondent's concerns regarding the Applicant's mental health: 52. The Applicant has subsequently entered periods of workers compensation related, and non-work related, sick leave and provided medical certificates to NSW Police administration staff outlining significant mental health concerns. … 57. On or around 16 May 2023, I became aware that the Applicant had provided a medical certificate from Dr Maher Alsabti, General Practitioner, dated 16 May 2023. The certificate stated that the Applicant is receiving medical treatment for Post-Traumatic Stress Disorder (PTSD) and is unfit to work from 17 May 2023 to 16 June 2023. .... 58. This medical certificate has raised a further concern about the Applicant, being that the mental health issues being reported by the Applicant are inconsistent. The Applicant has provided the Tribunal with evidence that he no longer suffers from PTSD, including as stated in an assessment report from Mr Richard Brown, Psychologist... 59. Additionally, I was informed by Sergeant MPE that, for the purpose of an independent medical assessment, the Applicant has denied an independent medical practitioner permission to speak to Dr Alsabti. The Applicant's refusal is also present in a 'Privacy and Consent to Release Medical Information' form dated 16 May 2023, in which the Applicant stated 'Not contact GP … Don[']t consent … Dr Maher being contacted'... 60. I maintain the concerns set out in my email to the Firearms Registry, and hold additional concerns about the Applicant, including that: 1. the Applicant is suffering from significant mental health issues, and has provided conflicting information regarding those issues; 2. the Applicant is unsuitable to hold a firearms licence given his conduct and significant conflict with Senior Constable HIJ and Senior Constable FGH leading up to 7 October 2021; 3. the Applicant is responsible for the loss of a prohibited article (ILAV ballistic plates); 4. the Applicant holding a firearms licence may put himself, or others, at risk; and 5. under no circumstances should the Applicant be granted a firearms licence.
Inspector ABC's email to the Firearms Registry of 26 October 2021 stated the following: Good morning all. Just a quick one, I am the Inspector for HWP in the NSW Sector and am responsible for Senior Constable DEP. Arising from some issues, we served notice of some proposed management action upon DEP on Thursday October 2021. Arising from this, DEP engaged in a significant outburst and stormed off from the workplace, becoming uncontactable for over 45 minutes. This resulted in a significant search to locate him which resulted in a former Police member contacting Police expressing concerns he was storming down the highway indicating he was walking from …to … (some 2.5-3hr trip via car). I approached DEP with several other Police and he was quite hostile, making several comments about fighting Police if certain actions were to occur whilst clenching his fists. Given his conduct, and holding concerns for his welfare I made the decision to remove and secure his service firearm to which he complied. Further, I arranged for other Police to attend his private residence at [residential address] … that evening to seize his personal firearms and licence. A formal suspension notice was issued on Wednesday 13/10/21. His firearms licence is XXXXXXXX and records are attached. All firearms are currently held by Police. DEP is now on sick report and has provided a medical certificate outlining some significant mental health concerns. Arising from same and the conduct leading up to it which also includes some significant conflict with other parties, this email serves to advise you that I hold significant concerns regarding DEP's suitability to hold a firearms licence. I genuinely believe that him holding a firearms licence may put himself or others at risk. May I ask that due consideration and consultation occurs should he make application for the return of his firearms and reinstatement of his firearms licence as I do not believe under any circumstances it should be granted.
Additionally, Inspector ABC's statement included information about several instances of offensive graffiti and other damage to property which it was alleged were perpetrated by the Applicant, which were reported in various COPS reports (the graffiti allegations). Photographs of the graffiti were annexed to the statement. The Applicant, however, was not charged in relation to these incidents.
[NOT FOR PUBLICATION]
Inspector ABC gave oral evidence at hearing that the Applicant was not, as at the hearing date, approved to return to work. He was still subject to a medical certificate which stated he was unfit to resume pre-injury duties. Once he was certified fit, there would be challenges in identifying where he could return to work due to the previous management issues and the NSWPF would also need to get an assessment of the Applicant's operational suitability due to his absence from the workplace.
Under cross examination Inspector ABC clarified that he was directly responsible for the Applicant as his supervisor, and whilst he had reviewed the conduct of the Senior Constables HIJ and FGH, they were from a separate district for which he was not directly responsible as a supervisor. He clarified that the Police District was distinct from the Highway Patrol, although officers' duties required them to cross paths.
He stated that there was never sufficient evidence to take action in relation to the instances of offensive graffiti and it was never established who was responsible for them. However, the ongoing conflict between the Applicant and the persons named in the graffiti, and the specific nature of the graffiti, led him to the conclusion that it was likely the Applicant was the perpetrator. He characterised this conclusion as a "suspicion based on fact", and in re- examination clarified that this was because the evidence didn't reach the criminal standard of beyond reasonable doubt to support the Applicant being charged.
Inspector ABC confirmed that the beliefs described in his email to the Firearms Registry of 26 October 2021 were genuinely held, and that he believed under no circumstances should the Applicant's firearms licence be granted. He maintained that the Applicant had stated that he "wanted to shoot those individuals".
Inspector ABC was asked where his belief about the Applicant's mental health was from, in circumstances where the reports provided to the Tribunal about the Applicant's mental health certified him as fit and in support of his obtaining a firearms licence. Inspector ABC stated: Because of the ongoing conflict… This is not the only psych report which has been done. But the GP continues to issue certificates… in consent forms the Applicant refused to allow us to engage with the GP. There is a conflict in the medical evidence which gives rise to my concern.

Medical evidence

The Tribunal was provided with medical reports from psychologists Chris Gullifer and Richard Brown, and consultant psychiatrist Dr Peter Smith.
The Applicant consulted with Chris Gullifer for 11 appointments between January and September 2019 for treatment for post-traumatic stress disorder (PTSD). The Applicant re-engaged Mr Gullifer in around February 2022 in the context of a WorkCover claim (which was denied) and attended 4 appointments. In a letter dated 8 March 2022 Mr Gullifer stated: DEP has reengaged in psychological support with myself under his WorkCover claim. I am aware that DEP had his personal firearms removed due to previous concern for his wellbeing. I am writing to advise that access to his personal firearms would be of beneficial for DEP's mental health to be able to engage in his leisure hobby of hunting. In my opinion DEP poses no risk to himself or others and should be able to have access to his personal firearms. DEP has had no suicidal or homicidal risk now or in the past.
Richard Brown conducted a "mental health risk assessment for suitability to hold or continue to hold a firearms licence authorising possession and use of firearms" of the Applicant and provided a report dated 4 April 2023. Mr Brown considered the following in making his report: 1. Review of information provided to him by the Applicant, including the Internal Review Statement of Reasons dated 8 December 2022; 2. Personality Assessment Inventory completed by the Applicant on 12 February 2023; 3. Semi structured assessment interviews completed by the Applicant on 1 March 2023 and 31 March 2023; 4. Consultations with Chris Gullifer on 3 March 2023, 31 March 2023 and 5. 3 April 2023.
Based on the information provided to him, Mr Brown's opinion was that: DEP had been suffering from symptoms of PTSD back in 2019, from which he subsequently experienced significant recovery; DEP's former psychologist, Chris Gullifer, advised he did not have concerns about DEP using firearms in 2019 when he was suffering from symptoms of PTSD, or any other time. DEP was not suffering from a personality disorder at the time of assessment. There were no indications of antisocial personality traits at the time of assessment. There were no indications of potential future antisocial behaviours (i.e., violence) at the time of the assessment. There were no indications of risk of self-harm or suicide at the time of assessment.
Mr Brown's opinion was that the Applicant's PTSD could reoccur, but: …there was no reason to believe a future relapse would adversely affect his ability to safely and responsibly use and possess firearms, if a relapse were to occur.
The Tribunal notes that the only record from NSWPF which Mr Brown was provided with was the Internal Review Statement of Reasons dated 8 December 2022.
Dr Smith's reports dated 26 August 2022 and 19 May 2023 were provided to NSWPF in the context of their request for an independent medical assessment of the Applicant's mental health. For the purpose of conducting the initial assessment he was provided with the following: Certificates of work capacity, most recent dated 24 June 2022; Letter from insurer to Applicant dated 31 March 2022; Letter from Acting Superintendent Tina Davies to Applicant dated 5 July 2022; Role/position description.
In August 2022 Dr Smith's opinion was that the Applicant was "unfit to resume full duties with or without restrictions immediately or in the near future". By May 2023, Dr Smith's opinion, based on the Applicant's self-report and the provision of medical certificates dated up to 17 April 2023, was that the Applicant's previously diagnosed conditions of PTSD and adjustment disorder "have completely remitted", and that he was fit to return to work as a police officer "notwithstanding reported conflictual workplace matters in relation to his employer". He gave no opinion about the Applicant's firearms licence, the circumstances in which it was revoked, or any risk to public safety if it were to be reinstated.

Character references

M and K C provided a letter dated 23 November 2022 in which they said they had known the Applicant for 19 years and had a wonderful friendship which involved hunting vermin together. They recommended him to vermin control and regarded him "as a competent and reliable shooting mate in our strive to help keep control of this issue, especially the wild dogs".
M C provided a separate statement addressed to the Tribunal dated 2 April 2023 in which he said he had read the Internal Review Statement of Reasons dated 8 December 2022 and opined: I do not agree DEP is a risk to anyone, including himself. … DEP has been a reliable and trustworthy partner for shooting with safety a number on priority. … Myself being a person in high regards to gun safety, I class him to be up to my standard 100%. Ever since I have known DEP, he has been very safe and responsible with his firearms. I do not believe DEP's PTSD will impact his ability to be a responsible gun owner. … I find him to be completely trustworthy with firearms and the truth.
M H' statement dated 2 April 2023 was addressed to the Tribunal. He had first met the Applicant in December 2022 when "we briefly met to discuss some possible opportunities that could lead to mutually beneficial outcomes for both parties". He said: Although I have only known DEP for a short period of time, I do not believe that DEP's PTSD will impact his ability to be a responsible gun owner - which I am also.
K P undated letter stated that the Applicant had been controlling vermin on his property for several years, and that he "has always shown a good understanding of safety and responsible use of firearms in our dealings with him".
K P also provided a letter dated 11 April 2023 addressed to the Tribunal. In that letter he confirmed that he had read the Internal Review Statement of Reasons and "in my opinion this letter does not relate to DEP in any way and is not a true indication of DEP". He further stated: DEP informed me that he was diagnosed with PTSD, due to his job. This has not been evident in my dealings with him. I would not have been aware of it unless he had told me. In my dealings with DEP I have seen no evidence of depression or anxiety that I would consider concerning. DEP is a responsible gun owner his PTSD has not impacted this. In fact during this period of illness it is probably beneficial for DEP to undertake vermin control which is an activity he enjoys. DEP has never indicated to me he has any thoughts of self-harm.
M R provided two references in support of the Applicant, a handwritten letter dated 27 November 2022 and a statement dated 9 April 2023. The 27 November 2022 letter referred to knowing the applicant for approximately 10 years during which time he had been a regular shooter on the author's family's property and assisted with vermin control, and that the Applicant "had always been very safe and responsible". In the statement of 9 April 2023, Mr Rice stated that he had known the Applicant for 17 years, had read the Internal Review Statement of Reasons and "I do not agree that DEP is a risk to anyone, including himself". He stated further: DEP informed me in 2019 that he was diagnosed with PTSD, due to his job and if he had not told me about this, I would never have known that he had PTSD as he shows no signs of this. DEP has never exhibited any form of depression or anxiety to me that I would consider concerning or different to anyone else I know. I do not believe that DEP's PTSD will impact his ability to be a responsible gun owner or as vermin control shooter which he is quite good at. DEP has never said to me that he has contemplated self-harm, or suicide and I have no concerns about his mental health or his behaviour.
R T provided a short letter dated 23 November 2022 in which he said he had known the Applicant since January 2009 and "have always found him to be a person of impeccable character." Mr RT stated that "he has always shown that he is a responsible person in the way he conducts himself."
S H provided a statutory declaration dated 27 November 2022 in which he stated that he had known the Applicant for 15 years, that the Applicant had been contributing to vermin control on his property for the last 12 years. In a further statement dated 8 April 2023 Mr Haynes added that he had read the Internal Review Statement of Reasons and that he: … did not agree that DEP is a risk to anyone, including himself. … DEP informed me in 2020 that he was diagnosed with PTSD, due to his job. DEP has never exhibited any form of depression or anxiety to me that I would consider concerning or different to anyone else I know. I do not believe that DEP's PTSD will impact his ability to be a responsible gun owner. DEP has never said to me that he has contemplated self-harm, or suicide.
The Applicant also supplied the Tribunal with a number of commendations, letters of reference and recommendations from the NSWPF. These included: 1. Commendation dated 12 April 2019 for not using his police-issued firearm when apprehending an armed offender; 2. Commendation dated 26 March 2019 for not using his police-issued firearm when apprehending an armed offender. 3. Letter of appreciation dated 25 August 2006 from a citizen who refers to the applicant's "diligence and professionalism displayed by the NSW Police, involved in the investigation of a fatal accident". 4. Police Letter of reference and recommendation dated 29 September 2007 in which plain Clothes Constable BGP stated that the applicant: "has an incredible work ethic, and as such has managed to stand out above his peers. There have been situations where I have needed to trust DEP with my and other officer's satefy and well being. Again DEP met these challenges with vigour, professionalism and his unwavering loyalty to his colleagues and duties.… I have no hesitation in supporting DEP for any position that requires hard work, commitment, professionalism, integrity, ethical decision making, responsibility and accountability". 1. Letter of reference from Superintendent A.P. Crandell dated 9 October 2007 where he clearly noted that he "commend[s] him to you as an officer of outstanding quality". 2. Letter dated 10 October 2007 in which Inspector K. Wholohan stated that: "I can advise that DEP has always approached his current duties in a professional manner. He is able to perform tasks with a minimum of or no supervision. He is self-motivated and works well in a team situation. …. he is always punctual and polite and respectful of senior officers. DEP leads by example for members junior to himself"

Consideration

The Respondent submitted that the Tribunal should affirm the decision to revoke the Applicant's licence as 'not in the public interest' for the following reasons: 1. The Applicant has come to the attention of police on numerous occasions due to ongoing conflict with police officers and other concerning conduct; 2. The applicant's behaviour has led to his police issued and personal firearms being seized, and his firearms licence being suspended, on a number of occasions; and 3. Conflicting evidence has been provided in relation to the Applicant's mental health and suitability to possess firearms.
The Applicant submitted that the three reasons for the revocation of his firearms indicated in the Internal Review Statement of Reasons were inconsistent with the evidence: the report of the incident of 17 June 2019 indicated that the Applicant was the victim and did not commit any offence; the report of the incident of 21 May 2021 indicated that the police officer attending the Applicant's residence had behaved inappropriately; and that the reasons for mental health concerns relied on for events on 7 October 2021 were a fabrication. The Applicant submitted that the seizure of his firearms in relation to the incidents of 17 June 2019 and 21 May 2021 were standard procedure and did not result in the ongoing suspension or revocation of his licence.
I accept the Applicant's evidence that he was the victim in relation to the incidents of 17 June 2019 and 21 May 2021 and that the seizure of his firearms on those occasions did not result in the ongoing suspension or revocation of the Applicant's licence. I place no weight on those incidents in circumstances where the evidence does not demonstrate any risks caused to public safety by the Applicant on those occasions.
It is fair to say that the Applicant has come to the attention of police on numerous occasions due to ongoing conflict with police officers. Much of this is in the context of his workplace and personal disputes with his former partner and her new partner, who were both serving police officers. Workplace conflicts and disputes, and personal disputes with former partners, do not, of themselves, provide a basis for a finding that the public interest would be negatively affected by an individual involved in those disputes obtaining a firearms licence. Threats levelled in the context of those disputes would, however, engage the public interest as an indication of a risk to public safety.
I accept that the Applicant has not been charged with threatening conduct and has not been the subject of an AVO. It is the Applicant's conduct, however which must be examined by the Tribunal - not just whether that conduct resulted in criminal charges, AVO's, or convictions.
The Applicant's evidence and submissions fail to engage in any meaningful way with the conduct concerns raised by the Respondent. For the most part, he denies responsibility or seeks to diminish the negative aspects of his conduct. Under cross examination it was put to the Applicant that, contrary to the assertion in his statement that he "had a clean service record", there had been repeated instances of unreasonable and unprofessional conduct. The Applicant agreed that he had had complaints but "lots of officers get complaints" and he had "no charges, no AVOs. I'm not an offender". He claimed he had never made threats to harm anyone, and denied being responsible for the graffiti about his former partner and her new partner, or that he had asked someone else to do it for him. He denied stating the words attributed to him by Inspector ABC in 2019 to the effect of "do you want to have a go" and "your days are numbered" and said that he had said "it would be a shitfight" in 2021, not "If you are going to try to take me back to …you're going to have to fucking fight me". He agreed that he had said words to the effect of "should have flogged those cunts", but said he was "just venting" and denied wanting Senior Constables HIJ and FGH dead or that he would like to shoot them.
Dealing first with the graffiti allegations, Inspector ABCs evidence under cross examination was that he suspected the Applicant was responsible for the graffiti, characterising this opinion as a "suspicion based on fact". The Applicant denies being responsible for any of the graffiti instances and there is no direct evidence tying the Applicant to them. The significance of the graffiti allegations, if the Tribunal accepted they were perpetrated by the Applicant, is twofold. First, they would demonstrate a flagrant disregard for the law which would, in my view, determinatively affect the Tribunal's consideration of whether it was in the public interest for the Applicant to hold a firearms licence. Flagrant disregard for the law, especially from a law enforcement officer, would leave the Tribunal with little confidence that the firearms regulations would be complied with by that individual or that it would be in the public interest for that individual to be trusted with public safety. Second, the content and offensive nature of the graffiti, with personal and vindictive vitriol levelled at the Applicant's former partner (and the mother of his children) and her new partner would greatly increase the likelihood, in the Tribunal's consideration, that the Applicant intended to or would cause harm to those individuals.
In that context of the seriousness of the impact of the graffiti allegations, I am not satisfied that Inspector ABCABC'S suspicions, without any direct supporting evidence, are enough for the Tribunal to find that the Applicant was responsible for them. I make no finding about the graffiti allegations in the circumstances.
The Applicant claimed that he has had a 'clean service record' during his time as a police officer with the NSWPF, as 'maintained [a] level of dedication and professionalism throughout his career' with NSWPF, and was subject to 'false allegations of misconduct'. The Applicant submitted that he has 'at all times … up[held] … the good reputation of the [NSWPF] whether on or off duty'. I agree with the Respondent's submission that based on the evidence of Inspector ABC regarding management action having been taken against the Applicant, the views of Superintendent SPE in his email of 1 May 2020, and the comments of Berrigan residents regarding their lack of confidence in the NSWPF due to the Applicant's conduct with Senior Constable FGH and Senior Constable HIJ, this evidence cannot be accepted.
The Applicant claimed that 'at no point did [he] react to' any alleged 'sledging' or 'conduct' from other police officers, but also stated that some of his conduct was the result of Senior Constable FGH and Senior Constable HIJ 'baiting' or attempting to 'agitate' him. Due to the contradictory and self-serving nature of the Applicant's evidence, I prefer Inspector ABC's evidence of the Applicant's conduct where it differs from the Applicant's, and give it significant weight.
The Applicant submitted that the allegations of misconduct made against him, intimidation, harassment, being forced to move locations of employment and ultimately, the revocation of his firearms licence, was retaliation from him 'bl[owing] the whistle on misconduct within the [NSWPF]'. He asserted that that he did not threaten harm to anyone. I reject those submissions on the basis of Inspector ABC's evidence, which I prefer for the reasons stated above.
I also do not accept the Applicant's submission that the mental health concerns raised by Inspector ABC following the incident of 7 October 2021 were a fabrication. The Applicant submitted that Inspector ABC's evidence should be given little weight because "it's only his opinion of workplace issues, not mental health issues which would constitute a risk to public safety", his evidence of workplace behavioural issues was "based on suspicions and innuendo" and he was not qualified to provide his opinion on the mental health evidence. I disagree. Inspector ABC's does not give an opinion about the Applicant's mental health diagnoses or condition, but rather focusses on his concerns about the sufficiency of the medical evidence and inconsistencies between the various medical reports, which he is qualified to do in the context of his role in managing personnel in his sector. Inspector ABC's roles as the Applicant's sector Inspector/manager, managing professional standards and staff conduct amply qualify him to provide the Tribunal with his opinion on the workplace issues he describes, from his own personal knowledge having managed various of the workplace conflicts, and from his access to and review of NSWPF records. The Tribunal accepts Inspector ABC's evidence of his concerns for the Applicant's mental health and the workplace behavioural issues he describes.
The character references provided by the Applicant do not assist in determining whether the Applicant poses a risk to public safety. The sum total of the referees' knowledge of the Applicant's mental health concerns seems to be a self-disclosure by the Applicant that he had PTSD, and a review of the Internal Review Statement of Reasons. None of the referees made reference to the workplace or personal conflicts in which the Applicant was embroiled, or his conduct on 7 October 2021. I accept that the Applicant may have an aptitude for vermin control, but this does not outweigh any issue of risk to public safety. I agree with the Respondent's submission that these personal references do not demonstrate an understanding of the reasons relied upon to revoke the Applicant's licence. Consistent with the authorities in Loye v Director General, Department of Transport [2000] NSWADT 145 at [42] and [44], Sawires v Commissioner of Police [2010] NSWADT 4 at [49] - [53] and Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 at [40] I give these references limited weight.
The Applicant's Police letters of recommendation predate all of the relevant evidentiary basis for the revocation of the Applicant's licence and I give them no weight in the circumstances.
The Applicant's firearms licence was not revoked because he has PTSD. If that was the case, the firearms licence would have been revoked in 2019. The Respondent's submission is that the Applicant's conduct from 2019 onwards, culminating in the incident of 7 October 2021, creates a concern for the Applicant's mental health and a subsequent risk to public safety (including the risk of him harming himself or others). The Tribunal agrees with this submission. The medical evidence provided by the Applicant does not allay the Tribunal's concerns regarding his mental health. The medical evidence, to the extent it is provided, is conflicting and does not adequately address the risks to public safety posed by the Applicant retaining a firearms licence, as it does not engage with or consider the relevant material which is before the Tribunal.
I give Dr Smith's evidence no weight in circumstances where he has not provided any opinion on about the Applicant's firearms licence, the circumstances in which it was revoked, or any risk to public safety if it were to be reinstated.
Chris Gullifer's opinion that the Applicant would benefit from having a firearms licence and this would pose no risk to public safety is of limited weight in circumstances where his knowledge of the Applicant and his circumstances seems to have come almost entirely from the Applicant himself, in the context of treating him for PTSD. Dr Brown's opinion is similarly of limited weight. He opines that the Applicant poses no risk of harm to himself or others but has only considered information provided to him by the Applicant. Although the Applicant provided him with a copy of the Internal Review Statement of Reasons, this does not provide sufficient information upon which a risk to public safety could reasonably be assessed.
The Tribunal places significant weight on Inspector ABC's opinion of the risks to public safety posed by the Applicant, as expressed in his email to the Firearms Registry of 26 October 2021. 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.
In Duffy v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 124, the Tribunal considered the risk to public safety in somewhat similar factual circumstances, in that the Applicant in those proceedings had his firearms licence revoked on the basis of the Respondent's mental health concerns, following treatment for PTSD, which arose from bullying as a result of his whistleblowing. At [114] the Tribunal found: But it was the applicant himself who decided of his own volition (though following a suggestion by Ms Slatcher) to enter the PTSD treatment program and he has kept up his participation in it. In my view any risk to public safety presented by the applicant's mental state is of a purely theoretical nature, not a real and appreciable risk, as understood in Webb. I conclude that it would not be contrary to the public interest for the applicant to hold a firearms licence and the revocation decision under review should be set aside.
In these proceedings, however, the medical evidence is equivocal, and the risks to public safety expressed by Inspector ABC in his evidence elevate those concerns from a 'purely theoretical nature' to the 'real and appreciable risk' referred to in Webb. Balancing the limited weight of the medical evidence, the Applicant's history of firearms usage and the Applicant's reasons for having a firearms licence, and the limited weight given to his character references, with his conduct on 7 October 2021 and the risks to public safety expressed by Inspector ABC, I am not satisfied that it would be in the public interest for the Applicant to hold a personal firearms licence.
The correct and preferable decision is therefore for the Tribunal to affirm the decision of the Respondent to revoke the Applicant's category AB firearms licence pursuant to s 24(2)(d) of the Act and clause 20 of the Regulations.

Orders The Respondent's decision to revoke the Applicant's Category A B Firearms licence is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 November 2023

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