Handsaker v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-09-07

REASONS FOR DECISION

This is an application concerning the Commissioner of Police's decision to revoke the applicant's category AB Firearms licence. The decision was made on 2 November 2022 and affirmed on Internal Review on 14 April 2023.

Introduction

The applicant in these proceedings is Mr Garry Handsaker ("the applicant"), who at the time of the hearing was 53 years of age. The respondent is the Commissioner of Police, NSW Police Force ("the Commissioner" or "the respondent"). The Commissioner's delegate formed the view that it was not in the public interest for the applicant to continue to hold a Firearms Licence (the "Licence"). The Commissioner decided to revoke the Licence. That decision was based on the applicant's reported mental health and his plan to be medically retired from serving as a NSW police officer due to post traumatic stress disorder ("PTSD") and a probably diagnosis of depression.

Decline in mental health

The applicant gave evidence that towards the end of 2020 he was noticing that his stress levels and anxiety were increasing due to his work environment. He noticed becoming less confident, he had a lack of patience with customers, and became "standoffish in hands on situations". In his personal life he was withdrawing from family and friends and had a lack of patience with family members and said he was feeling depressed. Despite this, he continued to work. However, after some months his mental health declined and he sought treatment from his general practitioner Dr Wilden-Constantin, with a view to booking a session with a psychologist, Dr James Huntley. The applicant had consulted Dr Huntley previously in 2013. He said he told Dr Wilder-Constantin that he was feeling stressed and anxious in his role as a NSW Police Officer. The applicant was told by his general practitioner to take time off (four weeks initially) from the workplace and remove himself from the high stress work environment.
On 12 March 2021, the applicant said he informed his superior, Inspector Matthew Hinton, that he was taking for weeks medical leave. Inspector Hinton told the applicant that he will come and remove his personal firearms, the Licence, and also his NSW Police service firearm and other appointments from his residence. The applicant's firearms were removed by Inspector Hinton that day.
The applicant consulted Dr Huntley on 20 April 2021. He has continued to engage in regular sessions with Dr Huntley approximately once a month. He said he consulted a psychiatrist, Dr Bhandari in approximately July or August 2021. The applicant said he has continued to seek treatment from Dr Bhandari, also approximately once a month.
The applicant said he felt relieved he was removed from a stressful work environment when his general practitioner recommended that he take leave from work as a police officer. He said he felt that he could take time to focus on his mental health and his family. After continuing sessions with his treating practitioners and following the completion of a wellness program, the applicant said that he "gained skills to identify and manage my triggers and tools such as meditation, yoga, and weights to prioritise and improve my mental health."
In November 2021, the applicant returned to work with the view of eventually returning to full general duties. He said he was: "… certified fit to return to work on a graded return to work plan and initially returned to work on restricted duties at the local Police Citizens Youth Club (the PCYC). In or around January 2022 my return to work arrangements changed and I began performing work as an assistant exhibits officer at the Command. Whilst my service firearm remained locked (as I was on restricted duties, not operational duties), ironically my work in the exhibits room required me to receive and handle (amongst other things) many firearms and volumes of ammunition regularly. In addition to this daily access to (and often handling of) firearms in the exhibits room, during my work with exhibits I made numerous trips to the firearms disposal unit near Penrith, carrying firearms and ammunition for disposal (for example, firearms seized by police because firearms licenses were revoked). I worked in exhibits for 2 - 3 months, before moving to work assisting on the front counter of the police station (because there were then 3 of us in exhibits and not enough work to go around). Over my time on restricted duties I would often be the only officer in the station, holding the station keys, which give access to not only the firearms and ammunition in the exhibits room, but also can permit access to the locked service firearms.
The applicant gave evidence that he believed his return to work was mishandled. He felt a lack of support from senior management, which "resulted in my mental health declining again to the point where I was feeling stressed and my anxiety was increasing again". On the recommendation of his general practitioner, the applicant took leave from work in September 2022 and has not returned.
The applicant said once he recognised the impact of his deteriorating mental health, he sought help from professionals. As of July 2023, the applicant has worked with treating practitioners and feels in control of his emotions and how to proactively identify and manage triggers that negatively impact his mental health. He said, "After being removed from such a high stressful work environment for a long period of time, my sessions with my doctors and actively maintaining a health [sic] body and mindset I can say with confidence that I have achieved strong mental health and I am a fit and proper person to hold a firearms licence." I note that in the reports of the applicant's treating physicians, Dr Bhandari and Dr Wilden-Constantin, his treating practitioners do not hold the same opinion with regard to the applicant's description of "achieving strong mental health".
Since 2004, the applicant has had, and continues to have a desire to engage in recreational hunting and assisting landowners to manage vermin on their properties. He draws the Tribunal's attention to the fact that he has not come to the attention of authorities for mishandling or improper use a firearm, or for any breach of the Firearms Act. Indeed, apart from two minor traffic infringements from many years ago, the applicant has not come to the attention of authorities in any respect (apart from an enquiry made by police with regard to him appearing in a friend's hunting photograph - which is developed below). This is not in dispute and attracts significant weight.
The Commissioner contends that despite the applicant saying that he first started consulting Dr Huntley in 2013, this was after being referred under an employment assistance program for work-related issues, documents produced under summons reveal that he has been diagnosed and treated for mental health issues since at least 2011.
The Commissioner submits that the Tribunal ought to have a concern that the applicant's PTSD is ongoing in nature and may result in a relapse, particular with exposure to certain stressors. However, this is of limited relevance in circumstances where the applicant has been certified as totally unfit for work as a police officer due to "major depression, PTSD, panic attacks" up to and at the date of hearing.
The Commissioner raises two relevant issues for the Tribunal's consideration. First, whether it is in the public interest to allow the applicant to hold the Licence and second, whether he is a fit and proper person to do so.
A considerable part of the applicant's submissions deal with events leading up to the applicant's Licence being suspended following him taking leave of absence from his employment in March 2021. The issue of the suspension of the Licence and whether that was undertaken reasonably, or within power, is not a matter in which the Tribunal has jurisdiction to determine. It follows that I make no findings in this regard. The Tribunal's role, which is set out below, is also not to decide the merits of the Commissioner's previous decisions. To the extent that the applicant's submissions seek to challenge the original decision, I have not undertaken any merits type of review of that decision.
I have decided the applicant's conduct and mental health does not cause the Tribunal to have significant concern for public safety. It cannot be said that the issue of the Licence would not be in the public interest. The revocation of his Licence is not the correct and preferable decision. It should be set aside. These are my reasons.

Jurisdiction

The Notice of Revocation was issued under the provisions of the Firearms Act 1996 (NSW) - s 24. Relevantly, s 24 provides: 24 Revocation of licence (cf APMC 6, 1989 Act s 36, 1990 Reg cl 27) (1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order. (1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if - (a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or (b) in the case of a licensee who holds a class 1F licence or a visitor Licence authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997 - the 1F licence or visitor Licence is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act. (2) A licence may be revoked - (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee - (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations. ….
Clause 20 of the Firearms Regulation 2017 (NSW) ("the Regulations") provides: 20 Revocation of licence - licence not in the public interest The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
The applicable provision in this proceeding is s 24(2)(d) of the Firearms Act and cl 20 of the Regulations.
Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The third matter listed at s 75 concerns the revocation of a licence. Relevantly, the section provides: Part 8 Applications to Civil and Administrative Tribunal 75 Administrative reviews by Civil and Administrative Tribunal of certain decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - (a) the refusal of or failure by the Commissioner to issue a licence or Licence (other than a Licence in respect of a prohibited firearm) to the person, (b) a condition imposed by the Commissioner on a licence or Licence issued to the person, (c) the revocation of a licence or Licence issued to the person (other than a revocation on the basis that the holder of the licence or Licence is subject to a firearms prohibition order or an apprehended violence order), (d) .. (e) … (f) … (g) … (Emphasis added)
The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (the "ADR Act"), which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Tribunal has jurisdiction under the Firearms Act as noted at [25] above.
An application under s 75 of the Firearms Act is an administrative review. The Tribunal's function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.
An applicant for review is not subject to any burden of proof, the Tribunal's obligation being whether the decision under review is the correct and preferable decision on the basis of the available material (see Meacham v Commissioner of Police [2020] NSWCATAP 107, the Appeal Panel said at [75]), which reasoning I adopt: … It is well established that, as the Tribunal may "exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision", an applicant for review is not subject to any burden of proof, the Tribunal's obligation being whether the decision under review is the correct and preferable decision on the basis of the available material: Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425; [1992] HCA 47; Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1; [2006] HCA 53 at [39]-[40].

Administrative Review by the Tribunal

The applicant filed his application for administrative review on 10 May 2023. The Internal Review decision was made on 14 April 2023 ("Internal Review decision"). The application has been filed within the 28 day prescribed period. The decision which is the 'Reviewable Decision' is the Internal Review decision.

Issues for determination?

The issues are as set out by the Commissioner's delegate:

Is it in the public interest for the applicant to hold a licence?
Is the applicant a fit and proper person to hold a licence?

These issues will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law.

Applicant's evidence

The applicant relies upon the following evidence:

Reports Dr James Huntley dated 24 November 2022, 21 May 2023, 25 July 2023.
Applicant's affidavit dated 18 July 2023.
Three character references.
Additional material produced by Respondent under solicitors letter 30 August 2023.
Application with annexure filed 10 May 2023.

Respondent's evidence

The applicant relies upon the following evidence:

Documents filed under s 58 ADR Act on 16 June 2023.
Statement of Inspector Matthew Hinton dated 22 August 2023.
Tender bundle dated 23 August 2023

Both parties were legally represented. They provided written submissions which I have considered. The applicant, Dr Huntley and Inspector Hinton were cross-examined.

The applicant's oral evidence

The applicant adopted his affidavit. He led oral evidence in relation to consulting with Dr Huntley in 2013. The applicant said he was referred to Dr Huntley through an employee assistance program ("EAP") by his employer NSW Police Force. He said he telephoned a 1300 number and the person who answers the call provides an option of talking to a counsellor or a psychologist over the phone, or to put you in contact with someone in the local area. He said this is how he came into contact with Dr Huntley. The applicant denied he was referred to Dr Huntley for treatment for a mental illness or disorder.
In cross-examination the applicant agreed he consulted with a psychologist in 2010 and was prescribed anti-depressant medication. He said he believed he ceased that medication before 2013. The applicant agreed that he consulted with Dr Huntley on a number of occasions in 2013, he took a break and returned to see him in June 2014.
The applicant was questioned about the completion of a licence renewal application in June 2014. He was asked why he marked with a cross "no" in answer to a question "have you ever attempted suicide or self-harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?". This was in circumstances where he had signed the licence application, on 6 June 2014, which was a few days before the appointment with Dr Huntley on 10 June 2014. The cross-examiner suggested that the correct answer should have been "yes". The applicant rejected that assertion. He said in re-examination that at no stage up to 6 June 2014 had he attempted suicide, been treated for drug or alcohol abuse, or referred to anyone for a mental disorder or illness. He denied that he provided a false and misleading response in order to achieve a favourable outcome on his Licence renewal application. I accept his evidence which, is more fully explained below.
The applicant agreed that he has taken anti-depressant medication since 2021. He has also consulted an exercise physiologist concerning his physical health, walking and attending the gymnasium to promote his mental health. He continues to consult his psychiatrist Dr Bhandari, Dr Huntley and his general practitioner. These are all factors which I find form part of his ongoing mental health treatment.
The applicant was asked questions about his interaction with police triggering his PTSD and an incident in late December 2020. The incident concerned police attending on him ensure that he was complying with the Firearms Act. Police asked questions about the applicant being depicted in photographs whilst on a hunting trip with a friend, Edward Taylor. The applicant said the attending police officers suggested that he had used his Mr Taylor's rifle. He said this was "not the case, we went out, he harvested a deer, there was a photo of me standing behind the deer." He said he became upset when his integrity was questioned. He was most upset that it was being suggested that he had used a firearm.
The applicant was asked about an outburst with friends and his wife on 7 March 2023. This is where he observed members of the NSW Police public riot squad driving past. He provided the following explanation: "We were in Sydney with my wife and friends. A car drove past and it had two members from public order riot squad. My comment was 'look at these f…ken lazy bastards'. Doing general duties, we would see a lot of young guys in good positions, they are not at the front, not at domestics. Instantly I felt embarrassed or quite upset that that outburst came out."
The applicant denied that he had not put before the Tribunal reports from Dr Bhandari, workplace certificates for his medical leave and that he did not make reference to taking antidepressant medication in his affidavit, nor, participating in a treatment program recommended by his doctors at the St John of God hospital, because, he wanted to maximise his success in this application. He specifically said that Dr Bhandari would only release his records and any report to the workers compensation insurer EML. This is consistent with the statements recorded on a number of Dr Bhandari's report to that affect. I accept his evidence.
Overall, I accept the applicant to be an honest and reliable witness.

Evidence of Dr Huntley

The applicant relies on the evidence of Dr James Huntley clinical psychologist. Dr Huntley was cross-examined. Dr Huntley first provided services to the applicant in 2013. This was following a referral under the EAP for work-related stress. He said the applicant successfully returned to work on full duties. He was again referred on 18 March 2021, by the applicant's general practitioner in the context of being attacked on a routine patrol whilst at work. He had a likely diagnosis of PTSD. Dr Huntley's in a report dated 25 July 2023 says, "… Garry's mental health will not negatively impact on his ability to exercise continuous responsible control over his firearms" and "Garry's current possession and use of firearms will present no risk to public safety". Dr Huntley opines that by the applicant removing himself from the triggers associated with a stressful policing career he will be relieved of undue reactivity. He opines that even at the height of his distress, the applicant has been able to exercise rational judgement. His judgement "never did, and I believe never would have, manifested as risk of problematic behaviour around firearms. As agitated as he sometimes felt, I did not believe it ever reached the degree where concern of his use of firearms would have arisen". The overall preponderance of evidence supports this opinion. I give this significant weight.
Importantly, in cross-examination and re-examination, Dr Huntley was asked whether verbal outbursts, such as the one on the café and another relating to a 'blow up' in the workplace, are demonstrative of a lack of control. He said, "No not necessarily, they are a measure of one's concerns, but not lack of control, just an expression of emotion". I also give this significant weight.
Dr Huntley was asked questions about whether a diagnosis of PTSD, anxiety and an adjustment disorder, could lead to a risk of relapse. He agreed that any person "could relapse". However, in the absence of stressors, the risk of relapse is minimal. Specifically, in relation to the applicant his identifiable triggers were always related to police work, conflict or disappointment with other officers or managers, or confronting situations with member of the public. Due to the applicant withdrawing from his work as a police officer, Dr Huntley said in relation to the risk of the applicant relapsing "He would be at no more risk than any other member of the public." I give this moderate weight. This is because the evidence of Dr Bhandari and Dr Wilden-Constantin does not establish that the applicant's mental health has stabilised, where the issue of relapse is relevant. Although, I have concluded that his symptoms are reducing in circumstances where a decision was made for the applicant to be medically retired from the NSW police Force. Relapse and triggers leading to relapse are not irrelevant factors. I have considered those in assessing risk to the safety of the public.
I note in the summons material produced by Dr Huntley, his clinical notes record a number of work related stressors the applicant mentioned. This supports his conclusion that most of the trigger events are related to the applicant's employment. These include: in April 2021, 'for some months, [the applicant] has felt increasing anxiety, becoming very short-tempered and explosive at work with colleagues'; the applicant had displayed aggressive behaviour caused by 'no poignant trigger or event of concern' in February 2022; in May 2022, the applicant 'had a strong reaction to a confronting phone call on the desk'; in September 2022, that the applicant had outbursts at work that would be the subject of serious disciplinary action and other action and 'his current behaviour is right on that cusp. In the last few weeks it has included destroying phones, screaming obscene abuse at female work colleagues, and not responding to senior bosses'; the applicant was demoted from Sergeant to Senior Constable due to 'one act of stupidity'; and on 10 July 2023 a note that 'everything is going extremely well for Garry...Dr Bhandari agreed that St J of G was nt (sic) warranted. He is no longer reactive to the previous triggers'.
I have considered and accept that in 2021, a non-related work event related to the applicant having challenges with the sudden death his father and his concerns about his mother. This does suggest that the applicant's family situation may have also been a contributing factor to the decline in the Applicant's mental health in 2021, which is understandable given the death of a parent. However, the event and its effect on the applicant's mental health was not put to Dr Huntley for comment. In any event. this appears to be an isolated event. I give it some weight.
The respondent makes particular criticism of Dr Huntley in terms of him only providing a counselling service to the applicant. It is evident Dr Huntley is not a person who prescribes medication nor is he responsible for diagnosing the applicant. However, his report is of considerable value to the Tribunal in obtaining a holistic view of the applicant's overall presentation, as well as the other medical evidence before me (which is set out below). I accept his evidence.
Overall, I do not accept that little weight should be given to the evidence of Dr Huntley. I find Dr Huntley's evidence sets out strategies to assist with the applicant managing his mental health. The primary strategy is for the applicant seeking medical retirement from the NSW Police Force because of the triggers and stressors that the work environment presents. I am satisfied that the primary cause of the applicant's initial presentation in March 2021 to Dr Huntley and the subsequent relapse in mid to late 2022, was his work as a NSW Police Officer. I am also satisfied that as a clinical psychologist, Dr Huntley has the necessary education, skills and training to provide his opinion. Strict rules of evidence do not apply in this Tribunal. The Tribunal can inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (s 38 of the Civil and Administrative Tribunal Act 2013 (NSW). Dr Huntley was cross-examined and little in the cross-examination disturbed his opinion.

Character references

I have considered the three character references which all attest to the applicant's good character. There is no doubt the applicant is a person of good character. He has no criminal convictions or adverse involvement with police in relation to criminal, firearms or domestic related incidents. The applicant is well regarded within his community. His referees also attest to his skill and responsible use of firearms. However, the references do not refer to the plaintiff's mental health and his fitness to hold the Licence. I note that each of the referees are friends and/or work colleagues of the applicant. To that extent, I accord relevant weight.
To the extent they are relevant, the references support a finding that the applicant is a person of good character and standing in his community. They also provide a history of known exemplary use of firearms and training.

Evidence of Inspector Matthew Hinton

Inspector Matthew Hinton provided a statement dated 22 August 2023. He adopted the statement in oral evidence. Inspector Hinton has been a sworn police officer for twenty years. He works for the Hume Police District as a District Inspector - Goulburn. His role includes operations, human resources, professional standards and other duties. Inspector Hinton was the applicant's manager from January 2020.
Inspector Hinton was in attendance on the day when the applicant's firearms and other appointments were removed. He agreed the applicant may have made trips to Penrith to carry firearms after his Licence was suspended/revoked, but did not believe the trips to be numerous. He disagreed the applicant's return to work was mishandled.
When the applicant was on a return to work program, Inspector Hinton was aware there had been times that he became upset. No complaints were made by other officers. Some concern was raised for his wellbeing.
In cross-examination, Inspector Hinton agreed that at the time the applicant's firearms were removed he had no reason to think that the applicant was a threat to himself or someone else. He said after assessing the risk when an officer reports an issue with mental health, the Police Handbook indicates that firearms are to be seized. The risk he identified was the applicant had reported that he required time off work because of depression. He said there was nothing said to him at the time that gave a concern the applicant could not properly control the use of a firearm. Inspector Hinton said the Licence was suspended in accordance with the Police Handbook.
Inspector Hinton agreed that the applicant could have had a need to handle firearms in the exhibit room as part of his duties. I give this moderate weight.
I accept Inspector Hinton as an honest and reliable witness.

Other medical evidence

I accept the clinical notes produced record Dr Bhandari treating the applicant in May and November 2011 following him taking a period of leave from the workplace in July 2010. It is not in dispute that the applicant returned to work for a further ten years before the March 2021 events. The record notes the applicant telling Dr Bhandari that he was dealing with a relationship issue and that he was "anxious about being with weapons". The notation of anxiety in this context is isolated. There is no evidence that his anxiety about firearms continued. This is consistent with the applicant continuing in his chosen career as a weapons instructor until transferring to the Goulburn LAC in 2013. The nature of his anxiousness was not raised in the Commissions submissions and was also not put to the applicant in cross-examination. I give it little weight. Importantly there is no record of any diagnosis of any mental illness or condition being made by Dr Bhandari in 2011.
Dr Alice Neale is a consultant psychiatrist who was engaged by EML. In a report dated 28 September 2021, Dr Neale refers to the applicant telling the doctor that he noticed eight years prior to the assessment (about 2013/2014), that he was becoming more easily angered and irritable. He described punching chairs and breaking keyboards. He sought treatment through his general practitioner and a psychologist and was prescribed medication. His symptoms improved except for "moments" of uncontrolled anger approximately twice a year when dealing with "some oxygen thief" or abuse from members of the public. The applicant is said to have also mentioned to Dr Neale that during a state of origin event a colleague was glassed and he "handled that situation well". He referred to other incidents where he had become angry, but that anger settled after about an hour. This conversation was not put to the applicant in cross-examination. I am unable to make any positive findings about whether Dr Neale correctly notes what was said by the applicant. In note that he was asked in cross-examination whether he took medication in about 2010 when he consulted a psychologist. He said, "I think so". He said he did not continue to take medication in 2013. This would appear to be consistent with what Dr Neale records.
Dr Neale opines that the applicant started to develop symptoms of PTSD prior to 2021, which can not be isolated to one causative event. Rather, it was the culmination of various events over a period of 8 years that has led to the exacerbation of his symptoms and going off work in 2021. This is consistent with the applicant's evidence that he was not diagnosed with any mental health condition until 2021.
Some criticism is made by the Respondent in submissions that the applicant said to Dr Neale that, prior to eight years ago (about 2013), Mr Handsaker denied any contact with mental health services. The conversation was not put to the applicant. I give it little weight.
Interestingly, I note the opinion of Dr Neale that the applicant was suffering from PTSD (in remission) and not a Major Depressive Disorder as suspected by his general practitioner. Dr Neale also found that the applicant was experiencing situational anxiety at the time he was leaving work in 2021. This was associated with two work related incidences in 2020 and 2021, which exacerbated his PTSD. Dr Neale opines that his PTSD developed as a result of his exposure to traumatic incidents throughout his policing career. I give her finding about situational anxiety moderate weight. However, I note the finding of PTSD (in remission) is inconsistent with the opinions of Dr Bhandari and Dr Wilden-Constantin, which opinion I prefer, as set out below.
The applicant agreed that he consulted Dr Huntley in 2013. He could not remember on how many occasions, but said it was on a monthly basis "if that is what the records show". Dr Huntley's clinical notes include monthly consultations from March to June 2013. Dr Huntley said June was the end of the EAP approved 'bloc' of consultations. The Commissioner submits that the consultations ended abruptly without proper explanation from either the applicant or Dr Huntley. I do not accept that. This is because Dr Huntley said the EAP 'bloc' of approved sessions concluded in June 2013. However, I accept the applicant missed the final session following 3 June 2013 which, was to include his wife. Dr Huntley said that he saw the applicant again on 10 June 2014, in August and November 2014. Thereafter, Dr Huntley treated the applicant from April 2021. The records indicate consistent treatment from this date.
I have considered the opinion of Dr Bhandari set out in his report dated 13 September and 1 November 2021, "the chronic nature of Mr Handsaker's Post Traumatic Stress Disorder renders him vulnerable to further exacerbations of symptoms". He agrees with Dr Neale that, that the applicant has likely shown symptoms of PTSD for seven to eight years and does not meet the criteria for Major Depressive Disorder. Dr Bhandari at that stage recommended close monitoring and review of his emotional state before returning to pre-injury work as a police officer. He was prescribed an antipsychotic, Desvenlafaxine 50mg. I note the applicant ceased taking medication because he had been feeling better and had some reluctance to re-commence that treatment, but, would do so if required. He also said that when he made a decision to cease antidepressant medication, he noted a deterioration in his emotion state and recommenced treatment soon afterwards. This, in my view, demonstrates insight into his mental health. He was encouraged to participate in a PTSD programme. The evidence reveals he did not do so.
The Respondent submits the Tribunal should be concerned that the applicant ceased medication without medical advice. This was in the context of Dr Bhandari reporting that he should continue to do so. The applicant was not cross-examined on this. Without exploring the applicant's reasons for ceasing medication, I give that submission little weight. However, I do note that the applicant did provide a reason according to Dr Bhandari, namely, he was feeling better. However, the applicant said in evidence that he remains on the same medication, with an increased dosage to 100mg. I find the applicant's continued acceptance to take anti-depressant medication is one of the strategies/tools he has adopted to manage his mental health. I give this moderate weight.
I have considered Dr Bhandari's July 2022 opinion, that the applicant's course was complicated by alcohol use disorder. There is no evidence that he has continued to use alcohol excessively and I note that he agreed to cease alcohol use in late 2021 which has continued. This weighs in his favour. He demonstrated no prominent symptoms of depression and has not had suicidal thoughts. Dr Bhandari also noted a fluctuation in his mental state and records an incident where the applicant became enraged at work and destroyed a telephone.
Dr Bhandari reviewed the applicant in January 2023. He produced a report dated 24 January 2023 to EML. Relevantly, Dr Bhandari concludes the applicant has a primary diagnosis of severe PTSD. He tends to respond disproportionately and his capacity to manage anger is poor and he is easily overwhelmed. Reference is made to the incident involving police attending to make an enquiry concerning the applicant appearing in a hunting photograph. Dr Bhandari said his triggers involve working within the policing environment and contact with members of the public. He has no capacity to return to work with NSW Police in any capacity, and "… is currently incapable of any type of employment, including employment external to NSW Police. Mr Handsaker is totally unfit for all employment at present." Dr Bhandari further opines that the applicant does not have the capacity for transition counselling, vocational counselling, retraining, further study, secondary employment or work trials. I give this moderate weight.
I have considered the reports of Dr Wilden-Constantin (8 March 2023 and 13 March 2023). His opinion is that the applicant "is unlikely that senior Constable Handsaker will ever be able to re-enter the workforce in any capacity for the purpose of gainful employment. Doing so will make him vulnerable to various factors which in turn may lead to poor outcome [sic] due to his low tolerance threshold encountered in to [sic] day to day challenges of gainful employment." He is unlikely to be gainfully employed in any capacity due to his symptoms of hypervigilance, hyperarousal, anxiety, hyper-reaction and poor ability to manage stressful situations. He goes on to say that the applicant will benefit from ongoing psychiatric care and admission to an in-patient PTSD course at St John of God Hospital or Wollongong Hospital. I also give this moderate weight. It is important to note that each of the factors mentioned in these reports relating to the applicant's PTSD mainly concern the applicant's employment and work environments. No reference is made in any respect to his ability or inability to personally exercise continuous and responsible control over firearms.
Dr Bhandari provided a further updated report dated 5 July 2023 to EML. The applicant continued to report feeling agitated and anxious. He has not indicated whether he wishes to pursue participation in the inpatient PTSD programme. Dr Bhandari says it is unclear at this stage whether the programme would be effective for him. He records the applicant's condition has slowly stabilised and improved particularly after the decision was made for him to not return to employment with NSW Police. The applicant told Dr Bhandari he was feeling more positive about his future and his overall condition has continued to stabilise. The applicant reported an overall reduction in alcohol use and found intervention with the injury management specialist Miss Hassab helpful. Notwithstanding this improvement, Dr Bhandari finds that the applicant continues to suffer from PTSD complicated by Major Depressive Disorder (the reference to Major Depressive Disorder is not explained given he previously found that the applicant did not have this diagnosis). Dr Bhandari's report is partly consistent with the clinical notes of Dr Huntley made on 10 July 2023. Dr Huntley records everything is going extremely well for the applicant. The applicant also gave evidence of his improved mental health. Dr Huntley also records that Dr Bhandari agreed that the in-patient programme at the St John of God Hospital is not warranted. I accept that the likely reference to this comment arises from the notation made by Dr Bhandari in his report "… it is unclear at this stage whether the programme would be effective for him …". However, I am not able, without having had the benefit of Dr Bhandari clarifying his statement, to make a conclusion about whether Dr Bhandari said that the programme is "not warranted". His report does not contain those words. It is difficult to make any conclusion on this aspect without the matters being put to the applicant and Dr Bhandari specifically about what was said. I find the applicant continues to exhibit symptoms of PTSD and probably depression. However, as at July 2023, his symptoms are improving.
I accept the clinical notes of Dr Wilden-Constantin on 6 July 2023 record "stable-nil improvement"). Inspector Hinton gave evidence that the applicant has continued to provide medical certificates which state "… that he has been diagnosed with Major Depression, PTSD, panic attacks". He annexes a copy of one of those certificates to his statement dated 18 August 2023. His evidence was not challenged in cross-examination. I accept it except as to the applicant having Major Depression. I note the attached certificate reads "? Major Depression". I note in the certificate of capacity, Dr Bhandari records the applicant continuing to have a diagnosis of "? Major Depression, PTSD, Panic attacks". The applicant is being treated with "anti-depressant therapy, psychotherapy, psychiatric assistance; Exercise physiology; ? Inhouse PTSD course in Richmond [sic]". The certificate then records "employer not to communicate with G Handsaker - doing so will exacerbate his underlying conditions" consistent with his written reports. The applicant is certified as unfit for "any employment" from 20 August 2020 to 20 September 2023.
The Commissioner submits that the full picture of all of the medical evidence demonstrates that the applicant is continuing to suffer from PTSD and major depression. There is no prognosis available as to when, if ever, he may recover from the diagnosis. I accept that the applicant is continues to suffer from PTSD and most likely depression. The question of recovery remains open, but I find the applicant is improving following his medical retirement.

Applicant's submissions

The applicant contends just because he has a diagnosis of PTSD and depression, which does not equate to a finding that the issue of the Licence would be contrary to the public interest. There is no evidence: that the applicant has offered any violence to himself or others; of threats of violence; and of self-harm, which could lead to such a conclusion.
He submits that his PTSD has manifested itself essentially within the policing environment through his employment as a sworn NSW Police officer.
The applicant contends that he has appropriately sought and continues to seek medical treatment for his mental health. He submitted that the initial removal of his firearms resulted from a policy decision and there is no evidence that he posed a risk to the safety of the public which warranted the removal. Much of the applicant's written submissions refer to the lawfulness of the seizure and police policy. This is not within the Tribunal's review jurisdiction. I make no finding on this issue, apart from making findings that relate to evidence concerning risk to public safety and what is the correct and preferable decision.
The applicant contends, correctly, that no party carries the burden of proof in administrative review decision applications. No criticism should be made, nor is it appropriate, about the contention that the applicant chose not to file all of his medical record which were obtained by the respondent under summons. He also contends that he believed that he was not diagnosed with, nor was he seeking treatment for a mental illness or condition twelve months before he completed a firearms licence renewal in 2014. Therefore, he did not make a false statement or seek to mislead the firearms registry in completing the renewal process. He is a fit and proper person to hold the Licence.
The applicant contends there is no risk to public safety in him holding a category AB firearm's licence.

Commissioner's submissions

The Commissioner also relied on written submissions.
The Commissioner submits there is conflicting evidence in relation to the applicant's mental health, and as a result, concerns remain regarding his suitability to possess and use firearms.
The applicant has failed to disclose past treatment and assessment for mental health in both his firearms licence applications and in this application. In consideration of these factors the Tribunal would be satisfied it is not in the public interest for the applicant to continue to hold the Licence.
In support of these submissions the Commissioner has set out a summary of the entire available history of the applicant's mental health. The Commissioner submits that having regard to that history, the Tribunal would be satisfied that the Commissioner has established that the issue of the Licence would not be in the public interest.
The Commissioner also submits that the question concerning the applicant's integrity ought to be considered. This is because he failed to honestly answer questions asked of him in the Licence renewal process. Further, the applicant has not put all relevant information before the Tribunal and the firearms registry about his entire mental health diagnosis and treatment.
The Tribunal cannot be satisfied that there is virtually no risk to public safety. The Commissioner submits that the decision under review should be affirmed.

My consideration

The decision under review is based upon the Commissioner's contention that the applicant having access to firearms would be contrary to the public interest because of his mental health diagnosis. Issues of the applicant's integrity are also raised.

Public interest

In respect of the public interest, I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act identifies a purpose to deal with public safety at s 3(1)(a) of the Act: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms…
The Appeal Panel case of Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 ("Lee"), concerning giving proper consideration of all relevant matters when determining matters as to the public interest. At [24]-[25] of Lee, the Appeal Panel observed: 24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d). 25. In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or Licence as irrelevant considerations.
When reviewing these decisions, the Tribunal has determined that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered - see Livadaru v Commissioner of Police [2008] NSWADT 160 where Deputy President Hennessy referred to the public interest at [54]: In considering the public interest, regard must be had to the underlying principle of the Act. ….
The Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 discussed how the Tribunal should approach matters of public interest in licensing regime reviews.
Cases often cited include: Commissioner of Police v Toleafoa [1999] NSWADTAP 9, Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, Constantin v Commissioner of Police NSW Police Force and Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. In Ward v Commissioner of Police, NSW Police Service Deputy President Hennessy referred to the public interest at [27]-[28]: The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk. ….
In Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315, the Tribunal said, which I adopt: [31] In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms: [A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal. [32] The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said: 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. [33] The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include 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, [33].
As noted in Commissioner of Police v Toleafoa at [33] the 'public interest' is: … 33. 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. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.
The question of risk is not, however, to be approached in an absolute or mechanistic way, 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 at [64]-[66].
In determining these issues, 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 considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32].
It is not in contest that the applicant has a diagnoses of PTSD and probably depression. I find accordingly and it is likely that he has had PTSD since about 2013/2014, or at least symptoms of PTSD. However, it was not until 2021 that the applicant obtained a clear diagnosis. I am not able to find that the applicant has a diagnosis of Major Depressive Disorder. This is because I have placed significant weight on Dr Bhandari and Dr Neale's opinion in that regard.
I accept that the applicant attempted to return to work as a sworn NSW Police Officer. However, due to the nature and extent of his diagnosis he has been deemed unfit to do so. It would also appear from the most recent opinion provided by Dr Bhandari and Dr Wilden-Constantin, the applicant is unable to return to any employment external to the NSW Police Force. However, more recently and following a decision that the applicant will be medically retired from the NSW Police Force, he has shown some continued improvement in his presentation. Noting, however, Dr Wilden-Constantin records little or no improvement. I distinguish his opinion in light of the evidence of Dr Bhandari, the applicant and Dr Huntley.
What is particularly relevant to this application is the absence of any reference of violence, threat of self-harm, reports of physical harm to others concerning the applicant, even in circumstances where he was at his worst in terms of presenting symptoms of PTSD. This is significant and a factor which I give great weight. This is because when assessing risk to the safety of the public in the applicant having access to firearms, I find that there is no real and appreciable risk in these circumstances. Yes, the applicant has a complex diagnosis of PTSD, which, has essentially developed within an employment context. There has been some, albeit minimal, transference of his symptoms into non-related employment situations. However, the majority of the stressors and triggers for the applicant relate predominately to his employment as a police officer. This, I also give significant weight when assessing risk to public safety in the context of what the Tribunal said in Webb v Commissioner of Police, New South Wales Police Service at [32].
It is also uncontroversial that the applicant's mental health has fluctuated over a number of years, particularly since 2021, but this has essentially occurred in the context of the policing and employment environment. There is no evidence that the applicant has not been able to reasonably exercise responsible and continuous control over firearms because of his diagnosis. I have also considered that at the time Inspector Hinton removed the applicant's firearms, he had no information available to him that might have led to a different finding. It would appear that the applicant's firearms were removed based upon a perceived risk to public safety, or, because of policing policy, namely when an officer is placed on leave on the grounds of mental illness. However, these are matters which do not fall within the Tribunal's jurisdiction, except in so far as they relate to any evidence concerning risk to public safety which might be relevant to the Tribunal's task.
It is necessary to assess the likelihood of risk to the future safety of the public, if a Licence is granted to the applicant. In this application, there is no evidence that the applicant has in the past misused firearms or has in any way been in breach of the firearms legislation. Importantly, even accepting that the applicant has exhibited symptoms of PTSD from as early as 2013/2014, there is no evidence that he has not been able to personally exercise responsible and continuous control over firearms because of his diagnosis, particularly in circumstances where he has had ready access to firearms on a daily basis in his employment. I have taken into consideration that there is no notation in any COPS record of a concern held about the applicant's access to firearms. After reviewing all of medical evidence tendered in this application, there is no recorded concern by any of the health practitioner concerning the applicant's stated diagnosis and his access to, or inability to personally exercise responsible and continuous control over firearms. This I give significant weight.
His prior conduct does not reveal that his mental condition would put the safety of the public at risk should he be able to possess a firearm. Indeed, he has a long history of what can only be described as an impeccable use of firearms. I am confident in this finding based upon his prior unblemished history of handling firearms over a long period of time, even where he has had symptoms of PTSD. I also accept that it is highly unlikely that, if the applicant's mental health remained as it is at hearing, but in all reality it is likely to improve given the decision that he cease employment as a police officer, there is any risk to the safety of the public should he hold the Licence.
I have given some weight to the opinion of Dr Huntley in terms of his assessment of the applicant's use of firearms and his diagnosis of PTSD. Particularly his conclusion with respect the applicant's main stressors and triggers of his PTSD being employment related. Dr Huntley was cross-examined and I accept him as an honest and reliable witness.
I am not satisfied that the applicant's PTSD will render him unable to comply with the legislative regime should he be granted a firearm. Even where he has described himself as becoming 'enraged' with a situation where he was questioned about using a firearm by police, because he appeared in a photograph, that does not mean he will not be able to comply in the future. This extends to when he might have contact with police in exercising their obligations under the legislative regime. I accept the applicant's evidence that he would be able to comply with the legislation knowing that police will attend his residence. There is no evidence that he has failed to comply in the past. Indeed, when his firearms were removed in 2021, he complied with all lawful directions. He was entitled to ask upon what basis his firearms were being seized and question the authority to do so. I accept he may have been upset, or angry. This is not obstruction or conduct which in my view demonstrates that he can not comply with the Firearms legislation.
In considering Webb v Commissioner of Police, New South Wales Police Service at [32] and the evidence as it stands, I conclude it is not contrary to the public interest for the applicant to be issued a licence (cl 20 of the Regulations).

Applicant's lack of integrity

I accept the applicant's evidence that he approached Dr Bhandari to provide a report in the proceedings and that was request refused. As noted above, that would appear to be consistent with the notations on his reports to similar effect. I also do not accept that the applicant deliberately attempted to hide or not place before the Tribunal his entire medical history in an attempt to obtain the best outcome, or, where that evidence did not assist his application. He denied this in cross-examination and I have found him to be an honest and reliable witness.
As to the marking "no" in answer to the question in the Licence renewal, I accept the applicant's evidence that he did not believe he had been diagnosed or received treatment for a mental illness or disorder in the previous twelve months. The applicant did not receive a formal diagnosis until 2021. That is when he was diagnosed with PTSD. He also stated as much to Dr Neale in 2021.
I am also not satisfied that the reporting of an isolated period of anxiousness, or feeling alone and unhappy, where the applicant accepted he may have received pharmacological intervention in 2010/2011, could amount to failing to notify or attempting to falsely mislead the firearms registry in answer to that question.
I accept his evidence and find that he did not seek to mislead or knowingly provide a false answer to the question. He is a fit and proper person to hold the Licence.
The decision under review should be set aside.

Order 1. The decision under review is set aside.

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: 11 April 2024

At a glance

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Judgment (21 paragraphs)

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Legislation Cited (4)

Cases Cited (13)