Duffy v Commissioner of Police, New South Wales Police Force

Duffy v Commissioner of Police, New South Wales Police Force - [2023] NSWCATAD 124 - NSWCATAD 2023 case summary — Zoe

reasons for decision

The applicant Mr Wesley John Duffy applied to this tribunal on 11 August 2022 for review of a decision by the respondent Commissioner on 22 June 2023 to revoke his category AB firearms licence (exhibit R2, pp 65 - 66).
He had been licensed for firearms since 11 August 1998 and had successfully reapplied for his licence in 2003, 2008 and 2013. On 6 October 2018 his licence expired when he failed to reapply. He subsequently submitted a new application for a category AB licence for the stated reason of recreational hunting/vermin control, which was granted on 22 February 2019.
The applicant commenced employment with Corrective Services New South Wales in 2003. In May 2018 he was required to give evidence at a public hearing of the Independent Commission Against Corruption (ICAC) in relation to allegations of staff assaults against inmates at Lithgow Correctional Centre (LCC). The evidence he provided was adverse to several corrective services staff, including some senior managers and some "front-line" custodial staff.
After the inquiry he was harassed and bullied by a section of the LCC staff and management, with the result that he required treatment for post-traumatic stress disorder (PTSD). On 6 August 2021, a report was made to Detective Sergeant Roe of Lithgow police in relation to death threats the applicant had allegedly made in relation to other staff members at LCC. The initial threat had been received by LCC staff approximately 10 months earlier, and the governor of the centre had been informed, but no reports had been made to police.
On the basis of an email from a prison officer dated 5 August 2021 which the LCC governor provided to police, together with a report of a police interview with the applicant and copies of correspondence and text messages reporting language about shooting particular LCC staff, the applicant's AB licence was suspended on 6 August 2021 and revoked on 22 June 2022. The applicant requested an internal review of the revocation decision on 15 July 2022 (exhibit R1, p 69). The review not having been concluded within 21 days, the applicant applied to this tribunal for review on 11 August 2022 pursuant to s 53(9)(c) of the Administrative Decisions Review Act 1997 (ADR Act).

[3]

Mr Wesley Duffy (Applicant)

In his oral evidence by AVL at the hearing, the applicant adopted his statement dated 2 December 2022 in which he explained that in May 2018 he was required to give evidence at a public hearing of ICAC, which was evidence against several corrective services staff, including some high-ranked managers and some front-line custodial staff.
After the inquiry he was treated differently by a percentage of staff, being harassed and bullied by certain members of the special operations group (SOG) in particular, but also by a number of managers. He was referred to as a "give up and a dog" for doing his duty and standing up for the law. He was told by one deputy governor that once he became a whistleblower, he had to expect that staff would harass him.
Senior Assistant Superintendent Faith Slatcher was Lithgow general manager for some time and witnessed a complaint made to her by Officer Marcus B***** regarding a dereliction of duty, alleging that the applicant had refused to assist SOG in their operations. Ms Slatcher found the complaint to be childish and untrue.
In early October 2020 he had a conversation in the locker room with Officer Lawday, with whom he had worked for about 10 years. CO Lawday asked him if he was okay, to which he replied that he was, even though he was being harassed by certain staff. Mr Lawday said you aren't thinking of doing anything bad to yourself? He answered with a poor attempt at humour, "if [I] was going to take myself out there would have to be a few I could take with me". In hindsight he could see that such a statement could be taken out of context and he had certainly not meant anything serious. It was simply a throw-off remark that did not have the humour that he intended.
That afternoon at about 6 pm Ms Slatcher came to the jail and told him that Mr Lawday was concerned about what he had said to him earlier in the day. He assured her that it was a complete misunderstanding and that he had no intention or thoughts of harming himself or anyone else. He has four teenage children and a wife who need him and he would never do such a thing. They discussed the subject for some time. The staff on his shift asked what was happening, because "the boss" was in the jail after hours. He explained what had taken place. It became public knowledge that Mr Lawday thought he was going to hurt himself and that the boss had come to see him. It became a laughable matter because staff who knew him well knew it would never happen.
On 20 November 2020 he was on afternoon shift when there was an incident in one of the wings. SOG attended and were let in by gate staff. He had been having issues with SOG for some time, and when he was told they were staying for the whole shift, he had to leave. He felt at that point that he could not deal with any more bullying from them. At that moment he did not know that he would never return to the jail.
He spoke to Ms Slatcher in the following days and she told him he needed to take some time and get some help. After a period he was diagnosed with PTSD and was advised to do a trauma therapy program, which he is still doing.
In July or August 2021, he was in the local Coles store and encountered Officer Daniel Curry, with whom he worked for about 10 years intermittently. They had an extensive conversation about things they had done together, including gym workouts and the ICAC inquiry. They discussed the mental health of officers, including themselves. They mentioned Officer Dora **** threatening to blow up the Henry Dean building, Officer Michael **** who shot himself in the armoury at Silverwater, the fact that Mr Lawday had thought he was going to harm himself, and Ms Slatcher's visit to the jail after hours, and how it was considered amusing by other staff. At the time he thought it was a casual yarn with an old co-worker telling "war stories" as prison officers call them.
He saw Mr Curry at the local Woolworths in September or October 2022 and asked him if he had told anyone about their previous conversation, to which he replied that he had not. He told Mr Curry that false claims had been made about him and that the department had indicated that they came from him. Mr Curry said he did "not do shit like that" and when asked said he would be willing to support the applicant if he wanted to make a statement. He learned in December 2022 that it was Officer Curry who told Mr Lawday he had made threats to kill Murray P****, Simon G**** and Mark D**** and then kill himself.
Mr Lawday sent him a message trying to justify his actions, stating that Mr Curry called him and told him he had made threats. That was a complete fabrication as he had never made such a statement. Officer Curry is connected to SOG and was terminated from employment with Corrective Services for bullying and harassment. Until that incident he had considered him a friend.
In the days following the conversation in Coles with Officer Curry he received a call from the jail FM [sic] Dave Elwon enquiring how he was. He found that odd and said so, as no-one from the jail had called to check on his welfare in nearly a year. He then received a call from injury management [officer] Mark Traguther who asked how he was and if he had spoken to any officers in town recently. He said that someone was concerned he might hurt himself or someone else. The applicant told him he was fine and wasn't sure why someone would say that.
On a Friday in August he received a telephone call from Lithgow police saying they wanted to inspect his gun safe. He realized they were probably going to seize his firearms and knew at that point that someone was doing it out of spite. He called a friend of his who is a gun dealer and asked him to come and take them into secure storage, as he did not want his rifles to be damaged. He did panic slightly, suddenly feeling as though he was being treated as a criminal. He told John [Clapham] that he would meet him at the back gate of his property. He explained to the detectives what had happened and they informed him that they were in fact there to seize his firearms and not to check his safe. His firearms were then signed over to John Clapham for safekeeping until further notice.
He was then told by police that he had to go and have a psychological evaluation at Lithgow Hospital, where the triage nurse was briefed by police and was told that he had threatened to shoot somebody with his rifles. That was the first he had heard of such allegations and he was very upset that he had not been told about it earlier. He was told by the police that if he left the hospital without being seen he would be arrested. He felt as if he was being treated as a criminal. After several hours he was seen by psychiatrist and cleared to go home. He assumed that if his mental health had been an issue, he would not have been allowed to leave.
On the following Monday, after contacting a solicitor, he called the police station and was told that the police had acted on information provided by the jail. He then called the jail and spoke with the general manager, Mick Green. When asked if there were any reports about him and his situation, Mr Green told him that it was all the police and he had nothing to do with it. He told Mr Green he was unconvinced and that someone from the jail had told the police he had threatened to harm himself and other staff. He said Mr Green then changed his story and said he only had concerns for his safety and well-being. He told Mr Green he felt someone was lying and he intended to find out who it was. He also said he did not intend to harm himself or anyone else in the process. On 22 June 2022 he received a notification that his firearms licence had been revoked.
The report filed on the COPS database by Detective [Sergeant] Paul Roe had twisted words and had been written in such a way as to make him look like an unstable person. He was friendly and cooperative with police in the matter. Both detectives made him feel at ease while at his residence. On the way into Lithgow Hospital, he spoke freely with them, and told them that he felt every time someone harms himself or someone else with a registered firearm, it makes things harder for those who do the right thing. He told them he did not think taking people's firearms prevented suicides, as he had seen several suicides in jail where inmates had hanged themselves with bedsheets and power cords. The detectives were distracted during this time as there was a taxi robbery in Bathurst and it was unclear if they would be required to attend there after dealing with his situation.
He did not expect the police to twist what he had said about suicides into an intention by him to hang himself. Detective Roe also referred to his emerging from a thickly wooded area of the property, but there is no thickly wooded area on his 130 acre property, which is 80 percent arable. That made him sound like some kind of serial killer. He was simply at his back gate when they arrived.
The police had said that he confirmed that he had made threats towards other staff of the jail, which was not true. The police stated that he was scared he would be arrested, which was not true. They also said his wife was concerned for his safety, which was not true.
He is no longer working at the jail because he was "bullied out". He had stood up for the law and what he believed in. He would not tell lies to protect staff who took the law into their own hands. He did not think that as corrections officers they were above the law. It was ridiculous to think that he would put himself in a position of upholding the law that he swore to do as a corrections officer, then go and threaten to commit a crime himself by shooting the officers because they did the wrong thing. Unfortunately there is a deep culture in law enforcement, be it corrections or police, that as an officer you must not incriminate your colleagues. If you do you will be treated the way he had been, harassed until you left the job and lost whatever they could take from you.
He believed the allegations against him had been made out of spite by officers having a background with SOG. Those officers were the percentage of corrective services who seemed to have the strongest culture of not dobbing in your co-workers. It was the SOG officers who had hounded him and disapproved of his actions. They had actively tried to undermine his authority and claimed that he was not doing his job to the required standard. They degraded his character to other staff. It was only a small percentage of staff that behaved in that way, but unfortunately they had the greatest influence on the majority who do the right thing. He has no malice towards those officers. It was hard to accept being betrayed by fellow workmates he had held in such high esteem.
In his civilian life he breeds sheep, cattle and horses. A firearm is a necessary tool when on the land. In the past 18 months, without one available, he had lost sheep to foxes and wild dogs. He had had a horse enduring hours of unnecessary pain waiting for someone to come and euthanize it. He had a cow with birthing problems go through the same. He had lived his life as a law-abiding citizen in order to have the ability to carry out such tasks.
In oral evidence by AVL at the hearing the applicant reiterated those points and in cross-examination said that he had spoken to Officer Lawday on 16 October 2020, after the ICAC hearing and about a month before he had left. They had been friends and had children the same age. He had asked the applicant if he was okay, to which he made a stupid attempt at humour, as he thought he could trust Mr Lawday. He did not mention harming any persons other than himself and did not say that Mr Lawday could not understand the stress he was under or that he felt no sympathy for the other officers' families. He would never make children who were friends of his own children suffer. It was never meant as a threat, and was just a joke he made when he was walking out the door.
He had made the same remark to Curry, a former corrections officer, at the shopping mall in the course of a general conversation. He had brought up what Lawday had said to Ms Slatcher, saying that it had gone out of proportion. He did not get so far as saying that he would take anyone out. He had mentioned that one officer had threatened to blow up the Henry Dean building, and another had shot himself.
About 12 months later Neil Lawday had texted him and affirmed his story, but his story was different. He thought that Mr Curry had made those things up. He agreed that when police had attended his property on 6 August 2021, he had thought they were coming to seize his firearms, not to perform the safe storage inspection. In some conversations he had with offices at the jail he had learned of reports that he had mental health problems because Mark Traguther had reported threats that he had heard about.
On 6 August 2021 he had met DSgt Roe and DS/C Brooks at his property and they were there for quite a while, about 3 hours. He had never said to them that he had thoughts of hanging himself, but in the course of the drive to the hospital he had spoken about inmates hanging themselves. He had said to DSgt Roe that [the police] were going on what they had heard from others. He said he had never made any threats to others or about himself. All he had said was that he would take out some others if he were to harm himself. He had made stupid statements, but no threats.
At the time he had been upset and nervous, because he had no experience of such interactions with police, but he did not think his behaviour had been erratic. The police had taken him to hospital pursuant to s 22 of the Mental Health Act, though he had initially intended to drive himself. By that time he had a diagnosis of PTSD. He had been kept at the hospital from about 8:30 pm to 2:30 am.

[4]

Mr Michael Kruger-Davis

The applicant tendered a 17-page psychologist's report dated 8 December 2022 (exhibit A2) by Mr Michael Kruger-Davis, who had been approached by the applicant to assess his mental health and provide a report detailing his current mental health, following the revocation of his firearms licence. He received correspondence from the applicant containing the s 58 documents, a general practitioner's letter, a psychiatrist's letter and letters from colleagues. He forwarded Mr Duffy self-report questionnaires and received the completed questionnaires from him. He conducted a telephone clinical interview with him, in the course of which he administered a mental status examination, a suicide risk assessment and asked about his background and the incident that led to the current situation.
He had to conduct the interviews by telephone as he had been evacuated from his property because of the Murrumbidgee River flooding and did not have reliable Internet access to conduct a video conference call. Interviews by telephone had been considered acceptable in psychology practice since the 1930s.
The report concluded that the applicant presents to be of sound mind and on assessment does not currently present with depression, anxiety or overwhelming psychological distress. He does have a PTSD diagnosis which is being well managed. He does not present with a personality disorder or substance abuse disorder. His general practitioner, Dr Austria, stated that "During the two years of treatment Mr Wesley Duffy has never presented at my clinic with any behaviour that may suggest he can cause risk to himself or to the public".
He does not consume alcohol or take illicit or prescribed drugs that would impact on his ability to possess and use firearms, nor does he have a criminal record or criminal associations. He does not pose a suicide risk. There are no predisposing, precipitating or perpetuating factors that would elevate his suicide risk profile. He has a number of sound protective factors that indicated he is looking forward to his future. There are currently no factors that would indicate he would not be able to exercise willpower and continuous control if he were to possess and use firearms.
Mr Kruger-Davis's expert opinion was that his narrative was truthful and honest and he could not detect any indications of any intent to deceive or otherwise influence the substantive effect of the report. The clinical interview, mental status examination and suicide risk assessments are standard psychological practices for mental health assessments. They are coupled with empirical assessments that have inbuilt reliability and validity measures. His 35 years as a psychologist allow him to identify most attempts to deceive when interviewing clients. His professional opinion is that the applicant is very unlikely to pose a threat to the public or himself if he were to possess or use firearms.
In cross-examination by AVL at the hearing, Mr Kruger-Davis said he was currently working as a part-time consulting psychologist. The applicant had not been referred to him by his treating psychologist, but by a psychiatrist, Dr Anis. He had never met the applicant. He did not recall whether the applicant had told him that he had been admitted to Lithgow Hospital pursuant to s 22 of the Mental Health Act, though he did not think it had been mentioned. He had made a current assessment as at 2022. If he had known about it, he would not necessarily have altered his assessment of suicide risk, as it would depend on the circumstances. The bullying to which he had been subjected was gone, because he was no longer working at the jail.
The precipitating factors to which he had been subject in 2021 were no longer present and he now had protective factors that had not been present at the time, as he was no longer working at LCC. If he had thought the applicant had entertained thoughts of hanging himself, he would have asked questions about it, but he had asked if the applicant had any present intent to self-harm, and the applicant had said he had not. He would have gone through the predisposing, precipitating and protective factors as at 2022, bearing in mind that in the period since 2021 he had not attempted self-harm. A psychologist can only go on what people say and how they say it. But in his view there was now no risk.

[5]

Other documentary evidence

The applicant also tendered a medical certificate from the applicant's general practitioner, Dr Mariane Austria, dated 25 July 2022 (part exhibit R3), which stated that the applicant was receiving medical treatment for his PTSD since 2019. He was under a psychiatrist for the condition. He had been stable with that condition and had no suicidal or homicidal thoughts or plans. He is not a threat for himself or the community. Her attached certificate of fitness for the State Insurance Regulatory Authority stated that he had a diagnosis of major depressive disorder and PTSD secondary to a work-related event.
Also attached was a medical certificate from a consultant psychiatrist, Dr Sam T Anis, dated 31 August 2022, certifying that the applicant had attended his practice on 31 August 2022 for a medical review and had been regularly attending his clinic since 16 December 2020 for work-related trauma. Dr Anis had seen him 15 times during that period.
The applicant was very compliant with all treatment suggestions and was currently on Prozac 40 mg and Endep 10 mg. During his two years of treatment, he had never presented at Dr Anis's clinic with any behaviour that might suggest he could cause risk to himself or to the public.
The applicant also tendered a letter dated 2 December 2022 (part exhibit A3) from his wife, Mrs Danielle Duffy who stated that she had been married to the applicant for 23 years and they had four children, and live in rural New South Wales. Her husband's firearms were secured in the safe and she had never had any concern about having firearms in the house. Her husband is not a violent or aggressive man and she does not believe he is the kind of man who would harm his family, himself or anyone else.
Her husband stands for justice and upholding the law. That was how he had raised their children, and he leads by example. The firearms are used for farming purposes. The police had said that the day they came to their residence to seize the firearms, she had expressed concern for her husband's welfare. That was not correct. She was concerned that detectives were at her front door looking for her husband and she did not know why. She was not actually sure where her husband was at the time, but was concerned that whatever was happening had something to do with the constant harassment from people he had worked with.
Also tendered was a letter from 1CO Megan Staines dated 15 April 2020 (part exhibit A3) describing a conversation she had witnessed shortly after the ICAC hearing in May 2018 between SOG officers M D**** and Murray P**** at LCC. They were calling SCO Duffy a "dog", and said how could he still be there, as they did not dog their own kind, they stick together. She asked them to stop talking about the applicant in that way.
A letter from Stewart Sommerlad, a senior correctional officer at LCC (part exhibit A3), related that during a shift in about October 2018, he was the officer in charge of the Immediate Action Team at LCC, when Assistant Superintendent M**** D**** of SOG was in his office talking with him and other members of his team. When the conversation turned to the topic of SCO Duffy, Mr D**** stated that "Wes is a fing dog", an apparent reference to the ICAC investigation at which the applicant had given evidence. A heated discussion ensued and he asked Mr D to leave his office. He disapproved of such statements being made about the applicant, especially in regards to any evidence he may have provided against any other person.
Neither Dr Austria, Dr Anis, Ms Staines, Mr Sommerlad nor Mrs Danielle Duffy was required for cross-examination.

[7]

Detective Senior Constable Stephen Brooks

The respondent tendered a statement by Detective Senior Constable Stephen Brooks dated 18 January 2023 (exhibit R1), which related that on 6 August 2021 he understood that a report had been made to his former colleague DSgt Roe at Lithgow police station in relation to alleged death threats made by the applicant to other correctional centre staff members. The initial threat was received by LCC staff approximately 10 months earlier, and the governor was informed, but no reports were made to police.
The informant, Mr Michael Green (who was governor of LCC) provided a printed copy of an email from 1CO Neil Lawday dated 5 August 2021 reporting a conversation with the applicant around 16 October 2020 at which he noticed that the latter appeared distressed. The applicant indicated that he wished he did not wake up in the morning and that things were not great. When Mr Lawday had asked him if he was thinking of doing anything silly, the applicant said he did not think he would harm himself but if he did he would "take out" certain officers at the jail before himself, mentioning officers Simon , Murray P and Mark D****. He had said that those officers had put him and his family through stress and that he had no sympathy for them or their families.
DS/C Brooks also understood, on the basis of information provided to DSgt Roe, that on 31 July 2021 an unidentified prison officer had spoken with Mr Lawday and told him that he had seen the applicant in Lithgow Valley Plaza, where the applicant had indicated to the officer that he planned to kill members of LCC and then kill himself. On 5 August 2021, Mr Lawday had forwarded an email detailing his concerns to the informant [Mr Green], outlining the information and threats made by the applicant.
On 6 August 2021, DSgt Roe contacted the applicant, who agreed to police conducting a safe storage inspection at his property. When DS/C Brooks arrived with DSgt Roe the applicant was not initially in attendance, having arranged for a gun dealer, John Clapham, to be present and take possession of his firearms, suggesting that the applicant suspected police were in attendance to seize his firearms as a result of the reports that had been made. Mr Clapham told them that the applicant was nearby but afraid to be there as he thought they were going to arrest him. They assured him they had no such intention and asked him to call him and ask him to come to the property, which he did.
The applicant said he did have some conversations with some workmates about hurting some others, but never expressed any intention to hurt himself. He had in the past had thoughts of hanging himself.
During the conversation it was apparent that the applicant was suffering from significant mental health issues as he was very emotional, speaking very rapidly and his moods were very erratic. The firearms were placed into the custody of Mr Clapham and the applicant's firearms licence was taken and suspended. The applicant was conveyed to Lithgow Hospital pursuant to a notice under s 22 of the Mental Health Act 2007.
On the way to the hospital the applicant used words to the effect that he would never use his firearms on people from work. It would just cause problems for other law-abiding citizens who owned firearms. He was clearly aware of the allegations about his threats to shoot somebody.
In oral evidence by AVL at the hearing DS/C Brooks adopted his statement and explained that DSgt Roe had been the officer in charge of the case. He had based his own statement on DSgt Roe's 6 August 2021 event report E323552796 (exhibit R2, pp 11 - 20) and on his own recollection of conversations in the car and at the property. There were no notebook entries and no body-worn camera footage. The applicant had not said he had had any intention to hang himself, but had only had thoughts about it. They had taken him to hospital pursuant to s 22 of the Mental Health Act.
DS/C Brooks said he was qualified to form an opinion about whether the applicant had mental health issues as he was a member of the police mental health intervention team and had undergone a course in that subject in 2013. The applicant had seemed emotional at the time, but the witness agreed that most people can be nervous when being interviewed by police.
The applicant had said at the property that he had had thoughts about suicide, and that was one of the reasons why they had decided to apply s 22, besides the threats, and also his emotional and erratic demeanour.

[8]

Respondent's submissions

In written submissions the respondent, after setting out the background and the applicable law, contended that the main objection to the applicant maintaining a firearms licence was his admission to police that he had previously contemplated suicide, as well as his ongoing treatment for mental health issues.
He had provided a letter dated 31 August 2022 from a consultant psychiatrist, Dr Sam Anis, which noted that he had been regularly attending the Hope & Cope Psychiatric Clinic since 16 December 2020 for treatment in relation to work-related trauma. He was very compliant with all treatment suggestions and was currently on Prozac and Endep, and during the two years of treatment had never presented with any behaviour suggesting that he would cause a risk to himself or to the public.
He had also presented a medical certificate dated 25 July 2022 stating that he had been receiving treatment for PTSD since 2019 and was under a psychiatrist for the condition. He had been stable and had no suicidal or homicidal thoughts or plans, and was not a threat to himself or the community.
Also provided was a report from Mr Michael Kruger-Davis, as to which the respondent pointed out that Mr Kruger-Davis was not the applicant's treating psychiatrist and the conditions expressed in the report were based on self-assessments completed by the applicant and on a telephone clinical interview conducted on 13 October 2022. The psychologist had not sought further information from the applicant's treating psychiatrist or general practitioner regarding his PTSD treatment, but relied on the medical certificate from the GP dated 25 July 2022 and the letter from Dr Anis.
Mr Kruger-Davis had accepted the applicant's account of reports made to police and that he had never thought of suicide or attempted suicide or experienced thoughts of self-harm, despite police records that he had in the past had thoughts of hanging himself and confirmed to police that he had had conversations with colleagues about inflicting harm on certain co-workers. The report noted that while the applicant "is being treated and he remains under the supervision of medical professionals it is unlikely his PTSD would affect his fitness to possess and use firearms".
The respondent submitted that despite the evidence provided by the applicant, there was too much uncertainty regarding his mental health for the tribunal to be satisfied that there was virtually no risk to public safety if the applicant were granted a firearms licence. Mr Kruger-Davis's conclusion that the applicant's PTSD would not affect his fitness to possess firearms while he was being treated and under the supervision of medical professionals reinforced the uncertainty concerning the applicant's mental health. The respondent could not make a licence subject to a condition of continuing medical supervision.
While the respondent did not seek to challenge the applicant's evidence that he had been subject to harassment due to being a "whistleblower" for a workplace incident that resulted in an ICAC inquiry, he had made admissions to police that he had had conversations with colleagues about hurting others on his own evidence, and he appeared to have made a number of concerning statements to work colleagues that had been treated seriously. Police attending his property in August 2021 considered his behaviour so serious that they conveyed him to hospital where he was admitted pursuant to s 22 of the Mental Health Act.
In oral submissions by AVL at the hearing Mr Winram on behalf of the respondent added that the applicant had admitted that he had told Mr Lawday that if he was going to self-harm, he would take some others with him. He said that Mr Lawday had taken the comments seriously, and had set out his concerns in an email dated 5 August 2021 describing the conversation he had with the applicant on about 16 October 2020 (exhibit R1, annexure "A"). The text message from Mr Lawday to the applicant had confirmed that conversation.
DS/C Brooks had said that in their conversation at the applicant's property, the applicant had said he had on a previous occasion had thoughts about hanging himself, but no intention or plans. There was thus direct evidence of the threats from the applicant himself, from Mr Lawday and from the applicant's admissions to the detective. He admitted that he had been stressed and nervous when speaking to police at his property but denied mentioning any thoughts of hanging himself.
All those who had heard, or heard about, his comments had taken them seriously. He maintained that the allegations stemmed from an ulterior motive, but there was no evidence to support that. There was no dispute that he had suffered from mental health issues, Dr Austria saying that he was being treated for major depressive disorder and PTSD. Dr Anis said that he had been a regular attender at his clinic since December 2020 in connexion with work-related trauma. He had been treated for both conditions.
The applicant had not told Mr Kruger-Davis that he had formerly had thoughts of hanging himself, so that aspect could not be explored in the psychologist's evaluation. Consequently the suicide risk had not been properly investigated. His version was that the threats constituted a poor attempt at humour and denied any thoughts of self-harm. Mr Kruger-Davis had said that risk was managed if the applicant continued with his treatment program for PTSD. There was too much uncertainty about his mental health state and insufficient evidence to show that there was no risk in his holding a licence.

[9]

Consideration

Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) 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.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). 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.
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, s 11(3) states that a licence must not be issued unless 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. Section 11(4)(c) also provides that 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 the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
It is not suggested that the applicant is not a fit and proper person to hold a firearms licence. The ground on which the respondent argues for licence revocation is that it is not in the public interest for the applicant to hold a licence, within the meaning of s 24(2)(d) and cl 20.
The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Force [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66] 66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
The respondent's submission was that the main objection to the applicant maintaining a firearms licence was his admission made to police that he had previously contemplated suicide (and had spoken of harming others), as well as his ongoing treatment for mental health issues.

[10]

The threatening statements on 16 October 2020

The starting point of this narrative was an ICAC investigation into alleged prison staff assaults on inmates at Lithgow Correctional Centre in May 2018. The applicant gave evidence at a commission public hearing which apparently reflected adversely on certain staff members, including senior managers and members of the special operations group (SOG). A certain number of the staff concerned became hostile towards the applicant as a result.
Custodial Officer 1st Class Megan Staines wrote in an official memorandum that shortly after the hearing she witnessed SOG officers D**** and P**** talking about the applicant, calling him "a dog" and wondering "how he could still be here, we don't dog our own kind, we stick together". She rebuked them for doing so. Senior Correctional Officer Stewart Sommerlad also wrote a memorandum quoting Assistant Superintendent M**** D**** as saying "Wes is a "f****ing dog" in reference to the evidence the applicant had given to the ICAC investigation (part exhibit A3).
It is not disputed that following the inquiry the applicant was subjected to severe bullying and harassment by certain elements of the LCC staff, notably from SOG, to the extent that he later resigned from Corrective Services and required treatment via a PTSD program which he is still pursuing.
The first record of the applicant's offending statements is in an email from Custodial Officer 1st Class Neal Lawday to the then LCC Governor, Mr Michael Green, dated 5 August 2021. The email states that on about 16 October 2020 he met the applicant in the change room, and noting that he did not appear well and being aware "that he had been through a lot of stress", asked him how he was.
The applicant had replied that he wished he didn't wake up in the morning and that things were not great. Asked if he was considering doing anything silly, the applicant replied that he did not think he would harm himself, but if he did he would "take out" certain officers before himself. In the course of further conversation he had mentioned officers G****, P**** and D**** and had said to Mr Lawday that he could not understand the stress they had put him and his family through and that he had no sympathy for them or their families. After driving home he telephoned the then general manager, Faith Slatcher, relating the conversation and saying that he felt the applicant needed help.
On the applicant's uncontroverted evidence, Ms Slatcher came to see him at the jail around 6 pm and told him that Mr Lawday was concerned about what he had said to him earlier that day. He assured her that it was a complete misunderstanding and that he had no intention or thoughts of harming himself or anyone else, having four teenage children and a wife who needed him and he would never do such a thing. They discussed the subject for some time. In the days that followed, Ms Slatcher told him that he needed to take some time and get some help. After a period he was diagnosed with PTSD and was recommended to do a trauma therapy program. He duly did so and is still pursuing that program (part exhibit A1).
No reports to police or other official action ensued at that stage, Ms Slatcher apparently being satisfied that the incident had been dealt with. Mr Lawday's email to Governor Green was not written until 10 months later. In a text message to the applicant (part exhibit A3), Mr Lawday wrote that another officer, Dan Curry had telephoned him and said the applicant had told him exactly what he had said to Mr Lawday that afternoon and said that the three officers mentioned should be told. Mr Lawday had initially opposed taking the matter further as he also considered that it had been dealt with, but ultimately "made the difficult decision to inform our Governor, Mr Green".
On the following day, 6 August 2021, Mr Green reported the matter to DSgt Roe at Lithgow police, giving him a copy of Mr Lawday's email (event report E 323552796, exhibit R1, p 15). Thereupon DSgt Roe contacted the applicant, who agreed to police conducting a safe storage inspection at his property and indicated that he would be home at 5 pm. In fact the visit by DSgt Roe and DS/C Brooks was for the purpose of seizing his firearms and suspending his licence, which they did. DS/C Brooks's statement (exhibit R1) reports the applicant as saying in the course of their meeting, "I did have conversations with some workmates about hurting some others, but I never expressed any intention to hurt myself. I have in the past had thoughts of hanging myself".
The officers thought he was suffering from significant mental health problems, being "very emotional, speaking very rapidly and his moods were very erratic", they accordingly conveyed him to Lithgow hospital, completing a notice under s 22 of the Mental Health Act for that purpose. The applicant is quoted as saying on the way to the hospital that "I would never use my firearms on people from work. It would just cause problems for other law-abiding citizens who own firearms".
The applicant essentially admitted making the relevant comments to Mr Lawday, although denying naming other staff members or expressing a lack of sympathy for their families, as he would never want to make children suffer, especially the children of friends. He also admitted making similar comments to a former custodial officer, Dan Curry, at the Lithgow Woolworths, but had told him it had gone out of proportion and said he had not gone so far as saying he would take anyone out. He believed that Mr Curry had made up the references to the other three officers as potential victims. In their conversation they had referred to one officer who had threatened to blow up a prison building, and another who had shot himself at Silverwater.
The applicant denies that the comments to Messrs Lawday and Curry were intended as a threat. He described it as a stupid attempt at humour in a conversation with people he regarded as friends and who he thought he could trust.
There is no oral evidence, signed statement or affidavit from Mr Lawday about the conversation, and no evidence other than double hearsay from Mr Curry. It is accordingly difficult to know exactly what was said or to reach a firm conclusion on that point. There is no doubt, however, that the applicant said words to the effect that he would not harm himself, but if he did, he would "take out" some other people and then himself. It is probable that in the course of his conversation he mentioned officers G****, P**** and D**** as being among his alleged persecutors, but insufficient evidence of his saying that he would "take out" those persons specifically. Further, on the basis of the contemporaneous evidence it is more probable than not that he told DSgt Roe and DS/C Brooks that he had in the past had thoughts (but not plans or intentions) of hanging himself.
The comments were not in the nature of direct threats and the three officers mentioned by Mr Lawday were unaware at the time that they had been referred to in the course of the conversation. On the evidence also seems likely that the applicant was indeed intending to inject an element of grim humour into the discussion, but as he had undoubtedly been subjected to severe bullying and harassment by certain staff members it was conceivable that the comments could have been seen as at least partly serious. Any threats of violence, direct or indirect, and especially involving firearms, are a major cause for caution when considering the public interest in this context. The respondent has thus made out a prima facie case on this point for affirming the decision.

[11]

The mental health issue

Closely related to the concern about the threatening remarks is the respondent's second ground, that the applicant is undergoing ongoing treatment for mental health issues.
Following his meeting with the two detectives on 6 August 2021, he was taken to Lithgow Hospital pursuant to s 22 of the Mental Health Act. After a few hours he was examined by a psychiatrist and allowed to go home the same night.
I have already found that the applicant informed police that he had in the past entertained thoughts of suicide. The remarks made to Mr Lawday and possibly Mr Curry also contained allusions to possible self-harm if the situation became much worse. Dr Sam Anis wrote that he had been regularly attending the clinic since 16 December 2020 for treatment for a work-related trauma and had been seen 15 times.
His general practitioner, Dr Mariane Austria, wrote on 25 July 2022 that he had been receiving medical treatment for his PTSD since 2019 and was under a psychiatrist (presumably Dr Anis) for the condition. Her certificate to the State Insurance Regulatory Authority of that date recorded major depressive disorder and PTSD secondary to a work-related event.
Dr Anis, however, described him as "very compliant with all treatment suggestions" being currently on Prozac 40 mg and Endep 10 mg, and noted that "During the two years of treatment Mr Wesley Duffy has never presented at my clinic with any behaviour that may suggest he can cause risk to himself or to the public". Similarly, Dr Austria stated that "He has been stable with his condition. He doesn't have any suicidal/homicidal thoughts nor plans. He is not a threat for himself or to the community".
Mr Kruger-Davis's detailed psychological evaluation report states that there is no risk that his condition might impact on his ability to exercise continuous or responsible control of firearms, his PTSD being well managed, and he had never shown any concerns in the past. He is able to exercise continuous and responsible control of vehicles and other dangerous implements. It is unlikely that he would relapse, as his PTSD was well managed. He is of sound mind and there was no evidence of personality disorders or substance abuse disorders. He had an extremely low suicidal risk profile and a range of adequate protective factors and coping skills.
He does not present with depression, anxiety or overwhelming psychological distress or with a personality disorder or substance abuse disorder. He does not consume alcohol or illicit or prescribed drugs that would impact on his ability to possess and use firearms. He does not pose a suicide risk and there are no predisposing, precipitating or perpetuating factors that would elevate his suicide risk profile. He has a number of sound protective factors that indicated he is looking forward to his future and holds no fears for the future. Mr Kruger-Davis's opinion was that the applicant is of sound mind and would be able to exercise rational judgment and responsible control over firearms. So long as he is being treated and under professional supervision it would be unlikely that his PTSD would affect his fitness to possess and use firearms.
The respondent was critical of the report, arguing that Mr Kruger-Davis was not the applicant's treating psychiatrist and his conclusions were based on a telephone interview relying on self-assessments and that the applicant's account of reports made to police were accepted. The evaluation was based, however, on standard psychological tests and it had not been possible to see the applicant in person because of Murrumbidgee flooding. There is no evidence to indicate that the evaluation process was in any general way deficient in light of professional psychological standards.

[12]

Evaluation

On two occasions on the same day the applicant while talking to co-workers about his grievances stemming from the bullying he had sustained said that he would not self-harm, but if things got much worse and he did, he would take out certain other staff members with him. His evidence was that those remarks were a foolish attempt at humour that had misfired and had been blown out of proportion. In the circumstances, however, as it was known that he had been under serious stress, the comments could have had a contingent edge of seriousness and were indeed taken seriously.
The LCC general manager at the time, Faith Slatcher, discussed the matter with him at length and advised him to take some time and seek professional help, which he proceeded to do. She apparently formed the view that the matter had thereby been satisfactorily dealt with, as she made no reports to police and apparently took no further action. Mr Lawday did not raise the matter with the governor at the time, Mr Green, until 10 months later.
The applicant voluntarily left his employment at Corrective Services a month later and has not returned. He is now removed from the scene where he had been subjected to crippling bullying and harassment for having given apparently truthful evidence at an ICAC inquiry. There has been no repetition of incidents of this kind since then and he now works on his own grazing property.
The reports by his general practitioner, psychiatrist and a consulting psychologist are unanimous that he has no suicidal or homicidal ideation and would not present a danger to public safety if he were to have firearms. Mr Kruger-Davis adds the qualification that his PTSD would not present a problem so long as he continues with treatment, but is nevertheless emphatic that the applicant is of sound mind, has no personality disorder or other psychological problem that would impair his ability safely to possess, store and use firearms.
The applicant is 51 year-old married man with four children, living with his wife of 23 years, Mrs Danielle Duffy. They own their own home. He trained as an auto electrician and worked in that calling for 14 years. He entered Corrective Services in 2003 and was promoted to Senior Correctional Officer in 2016. He worked in the Lithgow Correctional Centre critical incident response team for 20 years and had to respond to bashings, murders, violence and bizarre activities. He has had a firearms licence for 30 years without incident or adverse report other than the episode which led to this application. He does not take illicit drugs or drink alcohol. He has no criminal convictions, criminal associations or history of violence and has been an active member of the Faulconbridge Rural Fire Service Brigade since 1990.
His wife Danielle states that his firearms were secured in the safe and she never had any concern about having firearms in the house. He uses his firearms for farming purposes. She states that he is not a violent or aggressive man and does not believe he would harm his family, himself or anyone else. He stands for justice and upholding the law. She adds that in the event report she was incorrectly reported as saying she was concerned for her husband's welfare (the implication being that he might commit some act of self-harm or violence).
She was in fact concerned that detectives were at her front door looking for her husband and she did not know why. She was not actually sure where he was at the time and was concerned that whatever was happening had something to do with the constant harassment from people he worked with. Her unchallenged evidence can be accepted on its face, as it is most unlikely that she would take a risk with the safety of her four children living in the house.
Mr Kable on behalf of the applicant cited Aloschi v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 64 in which the applicant's licence had been revoked following a s 79 notification by a medical practitioner to police. The applicant had sought medical intervention because he felt "rattled" and unable to cope as a result of a divorce and, more especially, the unexpected loss of his high-level managerial position. He entered the care of several medical practitioners, including psychiatrists, none of whom thought he presented a suicide risk, except for the general practitioner who made the s 79 notification on the basis of some comments made in consultation following persistent probing by the doctor, comments which, as a witness confirmed, did not actually involve a suicide threat. The applicant's treatment was successful but, more importantly, he had found suitable new employment and was involved with a new partner.
Nevertheless, he still felt inwardly shocked by the dismissal and the possibility of a relapse could not be completely excluded. The respondent submitted, as here, that there remained too much uncertainty about his mental health and that a risk to the public could not be excluded. The tribunal acknowledged that it was impossible to be certain about the applicant's future state, but considered that the risk was purely theoretical, and not real or appreciable within the understanding in Webb, and the revocation was set aside.
To a similar effect was AMJ v Commissioner of Police, New South Wales Police Force [2012] NSWADT 228, in which the applicant had actually attempted suicide previously, although not with a firearm. The decision refusing her a licence was set aside on the grounds that she had not used her firearm for the attempt, the circumstances leading to the attempt were unlikely to be repeated and there had been no further attempts or self-harm ideation; the medical evidence was that her mental state was now overwhelmingly positive and she was adjudged to present no greater risk to public safety than anyone else in the community.
The applicant Mr Duffy now operates his own grazing property, where he raises cattle, sheep and horses. He contends that he needs firearms for the purpose of controlling feral pests and humanely putting down sick or injured animals. He has experienced instances where livestock have endured prolonged suffering because of the time needed to secure the attendance of someone with a firearm. It is in the public interest for law-abiding farmers and graziers to have access to long arms for the protection of the environment and of primary industry.
The respondent argued that there still remains an unacceptable degree of uncertainty about the applicant's mental state such that risk to public safety cannot be entirely excluded, especially given Mr Kruger-Davis's qualification that his PTSD should remain under control so long as he continues with medical treatment and supervision. The respondent could not grant a licence subject to a condition that an applicant remains under medical supervision, Mr Winram said.
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.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (10)

Cited By (1)