Brandusoiu v Commissioner of Police, NSW Police Force

[2015] NSWCATAD 203

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Brandusoiu v Commissioner of Police, NSW Police Force [2015] NSWCATAD 203
Hearing dates:	23 July 2014; 20 October 2014; 10 November 2014 & 23 February 2015.
Decision date:	06 October 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill Senior Member
Decision:	Set aside and remit
Catchwords:	Not in public interest; may not personally exercise continuous and responsible control over firearms
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Commercial Agents and Private Enquiry Agents Act 2004 Evidence Act 1995 NSW Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013. Chen v Commissioner of Police, NSW Police Force [2015] NSWCATAD 167. Comalco Aluminium (Bell Bay) Ltd v O’Connor and Ors (1995) 131 ALR 657. Commissioner of Police v Toleafoa [1999] NSWADTAP 9. Constantin v Commissioner of Police NSW Police Force (GD) [2013] NSWADTAP 16. Director of Public Prosecutions v Smith (1991) 1 VR 63. Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. LY v Commissioner of Police, NSW Police [2004] NSWADT. Police v Toleafoa [1999] NSWADTAP 9.
Category:	Principal judgment
Parties:	Angela Brandusoiu (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel: M Breeze (Applicant)     Solicitors: Lindsay Taylor Lawyers (Respondent)
File Number(s):	1410187

Reasons for decision

1. This is a matter in which three Applicants from one family made applications to the Tribunal for review of decisions made about them by the Commissioner of Police in relation to licences. The 3 matters were heard together. Angela Brandusoiu, Adrian Stanescu and Tiberiu Brandusoiu are from one family. As at the dates of hearing, all three Applicants lived in the same household in Western Sydney. The family owns a rural property near Mudgee, west of Sydney. Tiberiu Brandusoiu and Angela Brandusoiu are married. Adrian Stanescu is the son of Angela Brandusoiu and lives together with Tiberiu and Angela Brandusoiu. The Tribunal understands that Anthony Brandusoiu, son of Tiberiu and Angela Brandusoiu had also lived in the family home before he was taken into custody. The Tribunal understands that Anthony Brandusoiu will be in custody serving a sentence in relation to drug supply until approximately February 2016.

2. Members of the Brandusoiu family have brought applications seeking review of decisions made by the Commissioner of Police in relation to their firearms licences. In addition, Mr Tiberiu Brandusoiu is seeking review of the Commissioner’s decision to refuse him master and operator licences under the Commercial Agents and Private Inquiry Agents Act 2004 (CAPIAA)

3. All the applications were heard together.

4. These reasons for decision relate to the application by Mrs Angela Brandusoiu in relation to revocation of her firearms licence.

Background

Application of Angela Brandusoiu 1410187

5. Mrs Brandusoiu’s application is in relation to the revocation of her firearms licence on or around 28th March 2014. She had held this licence since 26th August 2011. The reasons for the revocation of Mrs Brandusoiu’s firearms licence were that the Commissioner had reasonable cause to believe that Mrs Brandusoiu may not personally exercise continuous and responsible control over firearms because of her way of living and her domestic circumstances and because it was not in the public interest that Mrs Brandusoiu continue to hold a licence.

6. Mrs Brandusoiu did not seek internal review of the Respondent’s decision to revoke her firearms licence prior to lodging her application for internal review on 14th April 2014.

Mr Brandusoiu’s and Mr Stanescu’s applications

7. The Tribunal heard Mrs Brandusoiu’s application concurrently with those of her husband Mr Tiberiu Brandusoiu and her son Mr Adrian Stanescu.

8. By way of background, Mr Brandusoiu’s application was in relation to the Commissioner of Police’s refusal of his applications for a firearms licence and for licences under the Commercial Agents and Private Inquiry Agents Act 2004 (CAPIAA). He had previously had these licences revoked after ICAC findings in 2009 that he had engaged in corrupt conduct. He had unsuccessfully sought review of these revocations in the Administrative Decisions Tribunal (ADT) in 2012.

9. Mr Stanescu’s application was in relation to the suspension and the subsequent revocation of his firearms licence on 24th March 2014. The reasons set out in the letter of 24th March 2014 for the revocation of Mr Stanescu’s firearms licence were the same as those for Mrs Brandusoiu. They were that the Commissioner had reasonable cause to believe that Mr Stanescu may not personally exercise continuous and responsible control over firearms because of his way of living and his domestic circumstances and because it was not in the public interest that Mr Stanescu continue to hold a licence.

10. This was on the basis that Mr Stanescu and those with whom he was residing had alleged associations with outlawed motorcycle gang (omg) and drug activities.

Powers of NCAT Review - Relevant law

11. Section 75 of the Firearms Act 1996 provides for the review of decisions to revoke or refuse firearms licences under the Act to be reviewed by the NSW Civil and Administrative Tribunal (NCAT).

12. Section 63 of the Administrative Decisions Tribunal Act 1997 provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides:

(1) In determining an application for a review of a 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 enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."

13. The hearing is a hearing "de novo" - meaning that the Tribunal may consider the matter from the start including taking into account fresh evidence brought before the Tribunal. The Tribunal is not restricted to the consideration of the material that was before the Respondent, 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 179; (1979) 46 FLR 409.

Procedure of hearing

14. The 4 matters were heard together on 23rd of July 2014; 20th October 2014; 10th November 2014 and 23rd February 2015.

15. On 10th November 2014, on application of the Respondent, the Tribunal ordered that the hearing on 10th November 2014 be conducted in private – in the absence of the Applicants pursuant to section 49(2) of the Civil and Administrative Tribunal Act 2013 (CATA). The Respondent had submitted that it was desirable to do so as it wished to put confidential evidence to the Tribunal.

16. On 10th November 2014 the Tribunal also made the following orders pursuant to section 64(1) of CATA:

1. section 64(1) (b) prohibiting the publication or broadcast of any report of proceedings in the Tribunal on 10th November 2014; and

2. section 64(1) (c) an order prohibiting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal on 10th November 2014; and

3. section 64(1) (d) an order prohibiting the disclosure to the Applicants to the proceedings of evidence given before the Tribunal, and of the contents of documents lodged with the Tribunal and received in evidence by the Tribunal, in relation to the proceedings on 10th November 2014.

17. The Tribunal notes that at the end of the hearing on 10th November 2014, the Tribunal returned to the Respondent documents tendered. Copies were not retained on the Tribunal’s file.

18. The Tribunal does not rely on the evidence given, or the contents of the documents tendered on 10th November 2014 in reaching its decision.

19. The Tribunal notes that neither Mr Stanescu nor Mrs Brandusoiu sought internal review of the Respondent’s decision to revoke their firearms licences – but applied directly to the Tribunal for review of the decisions. The Tribunal has determined under section 55(b) of the Administrative Decisions Review Act 1997 to proceed to undertake a review of the Respondent’s decision to revoke Mr Stanescu’s and Mrs Brandusoiu’s firearms licence in order to protect their interests.

Oral evidence before the Tribunal

20. The Applicants did not give oral evidence in the matters.

21. The Respondent called 2 witnesses, Detective Senior Constable (DSC) Bradley Atkins and DSC Bibiana Passak. Mr Tiberiu Brandusoiu cross examined these witnesses on each of the Applicants’ behalf.

22. The Respondent provided to the Tribunal and screened during the course of the hearing, the contents of a memory stick showing the police recording of the execution of the search warrant at the Brandusoius' home at [suburb] on 30th April 2013.

Documents before the Tribunal

23. None of the Applicants filed written evidence other than their applications. Mrs Angela Brandusoiu submitted photos of herself with lacerations on her arm which she contended were the result of an attack by a kangaroo. As no evidence was given to the Tribunal as to the source of the lacerations the photographs were not taken into account by the Tribunal. Mrs Brandusoiu also produced a letter addressed to Mr Brandusoiu from the Local Land Services Central Tablelands in Mudgee concerning control options for wild dogs.

24. The Respondent provided a set of section 58 documents in relation to each of the applications. In addition to the memory stick with the recording of the execution of the search warrant, the Respondent also provided a bundle of documents that related to the execution of the search warrant at the Brandusoius’ home on 30th April 2013.

25. Mr Brandusoiu represented the 3 applicants until the last day of hearing. The 3 Applicants were then represented by Mr Breeze of Counsel on the last day of the hearing on 23rd February 2015. At the end of the hearing on 23rd of February 2015, the Tribunal set a timetable for the filing of written submissions and reply by each of the parties. Unfortunately this timetable had to be elongated as result of matters beyond the parties’ and the Tribunal’s control.

26. The Applicants filed submissions dated 27th April 2015.The Respondent filed submissions dated 16th June 2015. The Applicant filed submissions in reply dated 3rd July 2015.

Applicants’ Evidence

27. As noted, none of the Applicants gave oral evidence. They relied on the contents of their applications for review.

Respondent’s Evidence

Evidence of Detective Senior Constable Bradley Atkins

28. DSC Atkins had been in charge of the execution of a search warrant at the Brandusoiu’s home on 30th April 2013. At that time, DSC Atkins was attached to the Gang Squad.

29. He was investigating an alleged matter of drug supply by the Brandusoiu’s younger son Anthony Brandusoiu. He said that at the time of the Tribunal’s hearing, Anthony Brandusoiu was in custody having pleaded guilty to the charges and was awaiting sentencing.

30. The Tribunal was subsequently informed that Anthony Brandusoiu was sentenced to 2 years and 10 months and would be in custody until at least January or Feb 2016.

31. DSC Atkins said the first priority when they were executing the search warrant was to locate and secure the firearms registered to Mrs Brandusoiu. The video showed Mrs Brandusoiu retrieving the keys for the firearms storage unit from the side of the bed on which Mr Brandusoiu slept and where he kept his mobile telephone. Mr Brandusoiu was not at that time licensed to possess firearms. DSC Atkins also said that Mrs Brandusoiu had difficulty in opening the bedside cabinet in which the keys were contained. When she was asked how many guns there were in the safe and what kind of firearms they were, she seemed uncertain. She said to DSC Atkins that she was feeling quite shaken up and could not respond at that time. Mrs Brandusoiu was then asked which firearm a particular bolt belonged to. She identified the relevant firearm. DSC Atkins alleged that he saw on the internal wall in the house a photograph of Mr Brandusoiu with his two sons, standing next to a dead boar.

32. This photo was not produced to the Tribunal.

33. DSC Atkins told the Tribunal that when the main bedroom shared by Mr and Mrs Brandusoiu was searched, three batons, prohibited weapons, were found underneath Mrs Brandusoiu’s side of the bed. A samurai sword and a smaller dagger were found between Mr Brandusoiu’s side of the bed and a bedside table. The samurai sword and the dagger were not prohibited weapons. DSC Atkins said that when Mrs Brandusoiu was asked why she had the three batons on her side of the bed, she did not provide a response. Mr Brandusoiu said he had the sword and dagger underneath his side of the bed because he liked them and he liked to keep them near his bed.

34. DSC Atkins also said that while they were searching the premises they found a memorial card for the late Zelko Mitrovic. He had been a member of an outlawed motor cycle gang, (omg) the Hells Angels and he was killed at work. Mr Brandusoiu had said “he was a nice person and a friend.”

35. DSC Atkins said that the concern about Mr and Mrs Brandusoiu and their son having firearms was that their son Anthony was an associate of Arman Prcanovic, a Sergeant at Arms of an omg, the Comancheros. They had both pleaded guilty in relation to a drug supply matter. His concern was that legal associates of omg members are able to provide assistance to the activities of omg members with firearms or ammunition.

36. DSC Atkins said that Mrs Brandusoiu’s weapons had been stored safely. DSC Atkins said that the Brandusoiu family had been entirely cooperative with the execution of the search warrant and there had been no problem.

37. DSC Atkins was asked by Mr Brandusoiu why, when the police attended the home, DSC Atkins had asked where Adrian was, when the search warrant was being executed in relation to the activities of Anthony. DSC Atkins indicated the he could not recall, but may have been confusing Adrian with Anthony.

Evidence of Detective Senior Constable (DSC) Bibiana Passak

38. DSC Passak said that she was a member of the Gang Squad. She had not been involved in executing the search warrant at the Brandusoiu’s house. She had provided a seven page report dated 18th December 2013 which was relied on by the Respondent.

39. DSC Passak had been involved in the investigation of drug dealing leading to the arrest and charging of Anthony Brandusoiu and his co-accused Arman Prcanovic. The primary concern about Angela Brandusoiu was that there was a serious risk of her firearms falling into the hands of omg members, given the association between her son and his co-convicted, Arman Prcanovic. She observed that Angela Brandusoiu had long fingernails which would prevent her from using high-powered firearms appropriately. This also suggested that she was not really the user of the firearms.

40. DSC Passak expressed the opinion that the photograph in the family home of Mr Brandusoiu and his 2 sons Anthony and Adrian standing next to a deceased boar, demonstrated that Mrs Brandusoiu had allowed her husband and sons to use her firearms.

41. Detective Passak said that their intelligence holdings indicated that Mr Brandusoiu was implicated in drug dealing.

42. When asked why it had taken eight months for the Commissioner to revoke Mrs Brandusoiu’s firearms licence after the search in April 2013, Detective Passak said that Mrs Brandusoiu’s firearms had been seized and were no longer on the premises after the search on 30th April 2013. She would be concerned if the firearms were returned to Mrs Brandusoiu.

Intelligence report re Steve Timotic I 33748562

43. DSC Passak submitted to the Tribunal an intelligence report numbered I 33748562. The report, provided by a police officer whose name had been blacked out, is dated 24th April 2008. It notes amongst other things, that Mr Brandusoiu had been sighted at Liverpool Mall in the company of Steve Timotic who was thought by police to be a Hells Angels omg member. Mr Timotic had been wearing a Hells Angels omg t shirt - although he had denied being a full member.

Applicant’s submissions

44. Mrs Brandusoiu submitted that the report of DSC Passak dated 18th of December 2013 could not be relied upon in a number of respects.

45. The statement that Mrs Brandusoiu had insufficient knowledge of the firearms was incorrect as previously she had been licensed to hold firearms and in being given a licence was adjudged to have satisfactory knowledge. In any event, the level of knowledge that she should have displayed was not specified. The report itself conceded that Mrs Brandusoiu may been stressed at the time of the execution of the search warrant on 30th April 2013 and thus unable to answer questions.

46. There was no technical evidence produced to support DSC Passak’s assertion about the length of Mrs Brandusoiu’s fingernails preventing her from handling a firearm.

47. There was no evidence that Mrs Brandusoiu had ever breached the conditions of her firearms licence. Her firearms had been stored properly at the time of the execution of the search warrant and previously in 2012 when police had attended to inspect storage. Even though the firearms were seized when the search warrant was executed, there had been no breach proceedings taken subsequently against Mrs Brandusoiu.

48. Mrs Brandusoiu’s previous licence history showed that she had a firearms licence 15 years previously and there was no evidence that she had previously been non-compliant with firearms regulations.

49. There was no evidence to support that Mrs Brandusoiu had allowed her husband to use the firearms. The photograph of Mr Brandusoiu with his son and a dead boar did not allow such an inference to be drawn.

50. DSC Passak had referred to intelligence reports which linked members of the family with criminal activity. These reports had not been produced and could not be tested.

51. Other than the fact that Angela Brandusoiu is the mother of Anthony Brandusoiu - there was no evidentiary link between Anthony Brandusoiu, his activities or his links to omgs and his mother.

52. The Respondent’s documents included Mrs Brandusoiu’s criminal history but the most recent had been a matter in March 2008 in which no conviction had been recorded. The record also showed some infringements in relation to her security business in 2004.

53. Mrs Brandusoiu’s firearms licence issued in 2011, post-dated the 2004 infringement and the 2008 offence. Further, no action had been taken to cancel the firearms licence until six years after the offence in March 2008. The mere presence of her criminal record was not a basis for revocation of her firearms licence.

54. Mrs Brandusoiu submitted that the Tribunal should take note of the letter received by her husband from the Local Lands Services Central Tablelands, undated but referring to a forthcoming meeting in June 2014. The meeting was to deal with wild dog control. This demonstrated Mrs Brandusoiu’s legitimate need for firearms.

55. Mrs Brandusoiu submitted that if the Tribunal considered a condition should be placed upon her storage of firearms to ensure that they were not stored in Anthony Brandusoiu’s presence, that she should be given an opportunity to make submissions on this.

Respondent’s submissions - Angela Brandusoiu

56. The Respondent made common submissions in relation to both Mrs Brandusoiu and Mr Stanescu. The decision to revoke the licences of both Applicants occurred after the Commissioner’s delegate considered DSC Passak’s report. This report led the Commissioner to consider that the Commissioner could not be satisfied that the Applicants could exercise continuous and responsible control over firearms due to their domestic circumstances and that it would not be in the public interest that the Applicants continue to hold a firearms licence authorising the possession and use firearms.

57. The Respondent referred to the evidence of DSC Atkins. He had observed that the firearms safe keys had been stored in the bedside drawer of Tiberiu Brandusoiu who was not authorised to access firearms. Mr Brandusoiu had referred to Mr Zelko Mitrovic a senior member of the Hells Angels with history of violence who was murdered as result of omg activity, as a friend and, in his opinion, a nice person. DSC Atkins’ evidence was that associates of the omgs facilitate the provision of firearms and ammunition to the gangs. It was not in the public interest for firearms to be possessed by members or associates of outlaw motorcycle gangs.

58. The Respondent referred to the evidence and report of DSC Passak. DSC Passak referred to the investigation into the drug supply matter involving Mr Arman Prcanovic, a Sergeant at Arms of the Comancheros omg and Anthony Brandusoiu. They were heavily involved in the supply of prohibited drugs at a commercial level. Anthony Brandusoiu had pleaded guilty and had been sentenced to 2 years and 10 months in jail. She also stated that Anthony Brandusoiu had links to the Commander of the Comancheros and links to the Rebels omg. She referred to Mr Brandusoiu’s association with Steve Timotic a member of the Hells Angels.

59. The Respondent referred to DSC Passak’s concern about Mrs Brandusoiu’s apparent lack of knowledge of firearms and her opinion that Mrs Brandusoiu would be unable to use firearms with her finely manicured fingernails. She had also been unable to identify any of the firearms in her safe even though she had held a licence since 2011. She concluded that Mrs Brandusoiu rarely handles or has any involvement with the firearms.

60. DSC Passak considered that the firearms should not be retained at the home address as the domestic circumstances of the Applicants were such that there was a risk that the firearms might fall into the wrong hands because of the Brandusoius’ association with both the Comancheros, the Rebels and the Hells Angels omgs. Mr Brandusoiu’s own association with omgs meant that there was a risk that he would voluntarily or under force provide the firearms and ammunition to members of the omgs.

61. Mrs Brandusoiu’s firearms had previously been owned by Mr Brandusoiu. She had only obtained her licence after Mr Brandusoiu had lost his firearms licence.

62. Mr Brandusoiu was the dominant personality in the household. This was supported by the fact that he conducted the proceedings for both Mrs Brandusoiu and Mr Stanescu and had filled in the forms for them.

63. Further the Respondent submitted that as neither Applicant had chosen to give evidence they had been unable to rebut inferences arising from the evidence presented by the Respondent.

64. The Respondent referred to the ADT Appeals Panel’s decision in matter of Police v Toleafoa [1999] NSWADTAP 9 at [25] in relation to the concept of public interest and the broad discretion that the concept provided a decisionmaker to approve or refuse an application. On the basis of the evidence about the Applicants, it was contrary to the public interest for Mrs Brandusoiu’s licence to be reinstated because of the risk of firearms and ammunition falling into the possession of unlicensed persons or members of omgs. It could not be said that there was virtually no risk to the safety of the public were Mrs Brandusoiu to regain her firearms licence.

Findings of fact in relation to Mrs Angela Brandusoiu

65. The Tribunal must be satisfied of the case before it on the balance of probabilities, the standard set out under the Evidence Act 1995 section 140 as follows:

140 Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

66. The Tribunal is satisfied that Mrs Brandusoiu’s domestic circumstances are that she resides at [address] together with her husband Tiberiu Brandusoiu and her son Adrian Stanescu. Her son Anthony Brandusoiu has also resided at this address – but he is presently in custody.

67. Mrs Brandusoiu has held firearms licences in the past and did so between 2011 and the revocation of her licence in 2014.Mrs Brandusoiu has stored firearms for which she is licensed at her home without evidence that she has breached storage requirements.

68. Mrs Brandusoiu’s firearms as at 30th April 2013 had previously been registered to her husband Tiberiu Brandusoiu. The key for the storage unit for Mrs Brandusoiu’s firearms as at 30th April 2013 was stored on Mr Brandusoiu’s side of the bed.

69. Mrs Brandusoiu has not been alleged to have direct association with members of omgs.

70. Despite the Respondent’s submissions, the Tribunal makes no finding in relation to the length of Mrs Brandusoiu’s fingernails or their impact on her capacity to use firearms. There was insufficient evidence about the length of Mrs Brandusoiu’s fingernails at any given time to make any findings about their length. Further there was insufficient evidence before the Tribunal to draw a conclusion about the impact of long fingernails on their wearer’s capacity to use a particular firearm.

71. Mrs Brandusoiu took the keys to the firearms storage unit from a drawer on Mr Brandusoiu’s side of the bed. However there is insufficient evidence for the Tribunal to draw the conclusion that Mr Brandusoiu effectively controlled the keys and access to the firearms safe. Similarly there was insufficient evidence before the Tribunal to conclude that Mr Brandusoiu had been using the firearms registered to Mrs Brandusoiu’s name while he was unlicensed.

72. A Samurai sword and small dagger were found next to Mr Brandusoiu’s side of the bed at the time of execution of the search warrant on the Brandusoiu’s home in April 2013. At the same time batons were found next to Mrs Brandusoiu’s side of the bed. Mrs Brandusoiu is reported not to have explained why the batons were there. Mr Brandusoiu is reported to have said he kept the sword and dagger there because he liked them. In the absence of further explanation, the Tribunal draws the inference that the items were on either side of the bed for protection. The Tribunal also draws the inference that Mr and Mrs Brandusoiu apprehended some risk to their safety.

73. The Tribunal understands that the purpose of Mrs Brandusoiu’s firearms licensing is recreational hunting and vermin control. The Tribunal was presented with a letter from Central Tablelands Local Land Services addressed to Mr Tiberiu Brandusoiu concerning a meeting to be held in June 2014 dealing with control of wild dogs in the Mudgee area where the Brandusoiu family has a farm. The Tribunal accepts that this letter provides evidence of wild dog activity near the family farm at Mudgee.

Relevant Legislation in relation to application of Angela Brandusoiu, Firearms Act 1996

74. The relevant sections of the Firearms Act 1996 permitting the Respondent to revoke a firearms licence, are sections 24 and 11 of the Act.

75. The relevant aspects of Section 24 provide:

24. Revocation of licence

(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) …….

(c) ……..

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

76. Section 11 sets out the reasons for which the licensee would be required to be refused a licence at first instance. The part relevant to Mrs Brandusoiu is:

11(4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of:

(a) the Applicant’s way of living or domestic circumstances, or….

77. Section 24 (d) provides that a licence may be revoked for any other reason prescribed by the regulations. The Respondent has relied on clause 19 of the Firearms Regulation 2006 which provides

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.

78. The Respondent’s reasons for revoking Mrs Brandusoiu’s firearms licence are that:

1. the Commissioner has reasonable cause to believe that she may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances; and

2. the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence

79. The Tribunal notes the description of “public interest” as embracing standards acknowledged to be ‘for the good order of society and the wellbeing of its members’ – see Director of Public Prosecutions v Smith (1991) 1 VR 63. Further, the purpose of a 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 consideration. See Comalco Aluminium (Bell Bay) Ltd v O’Connor and Ors (1995) 131 ALR 657 at [p 681].

80. The term "reasonable cause to believe" in this context was considered by the Tribunal in the matter of LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at paragraphs 41-43. There the Tribunal referred to the decision of Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013 in which Emmett J stated that the words 'reasonable cause to believe' are

"not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief."

81. In LY v Commissioner of Police, NSW Police [2004] NSWADT 115, the Tribunal found that this principle equally applies in the revocation of a firearms licence given that the Tribunal, and the Commissioner, must objectively be satisfied from established facts of the matters set out in paragraph 11(4)(a) of the Firearms Act 1996

Consideration

may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances

82. The Tribunal’s findings of fact indicate that there is no evidence before the Tribunal to indicate that there are instances where Mr Stanescu, Mrs Brandusoiu or Mr Brandusoiu have not exercised control over their firearms. There is speculation by the Respondent’s witnesses that Mrs Brandusoiu may have allowed her husband and sons to use her firearms and that she would do so in the future. However such assertion or conjecture is insufficient to found “reasonable cause to believe”. See LY v Commissioner of Police, NSW Police [2004] NSWADT 115.

83. Similarly there is a statement from the Respondent’s witnesses that members of omgs may rely on associates to obtain access to firearms. There is no evidence of this having occurred in relation to Mr Stanescu, Mrs Brandusoiu or Mr Brandusoiu. Nor is there evidence before the Tribunal of a direct connection between Mrs Brandusoiu or Mr Stanescu and a member of an omg. The Tribunal is not satisfied that there is reasonable cause to believe that Mrs Brandusoiu may not personally exercise continuous and responsible control over firearms because either Mr Tiberiu Brandusoiu, Mr Anthony Brandusoiu or Mr Adrian Stanescu or any other person may take that control.

84. The Tribunal finds that Mrs Brandusoiu’s licence could not have been revoked on this ground.

not in the public interest for the licensee to continue to hold the licence

85. The Tribunal must decide whether it is “not in the public interest for Mrs Brandusoiu to continue to hold a firearms licence.” The Tribunal interprets the meaning of public interest in these circumstances in the light of the principles and objects set out in section 3 of the Act, in particular requiring a person to prove a genuine reason for possessing or using the firearms and the overriding need to ensure public safety.

86. The Tribunal understands that Mrs Brandusoiu’s reason for possessing firearms is for the purpose of recreational shooting and vermin control at the family’s property near Mudgee. The Tribunal notes that there is an issue in that area concerning the control of wild dogs.

87. There is no history of danger to public safety posed by Mrs Brandusoiu’s possession of firearms. Nor is there an imminent threat to public safety posed by Mrs Brandusoiu’s possession of firearms. In these circumstances the Tribunal does not consider that the public interest requires that Mrs Brandusoiu’s licence be revoked.

88. At the same time, the Respondent’s witnesses expressed concerns about:

• Anthony Brandusoiu’s criminal conviction and his involvement with an omg;

• Mr Tiberiu Brandusoiu’s connections with omg members; and

• the possibility of omgs using associates to obtain access to firearms.

89. The Tribunal considers that the maintenance of public confidence that the Firearms Act is being administered to protect public safety is a significant concern. In Constantin v Commissioner of Police NSW Police Force (GD) [2013] NSWADTAP 16 at [33] the Appeals Panel stated that:

The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.

90. Section 19 of the Firearms Act sets out that conditions may be imposed on the issue of a licence. The provisions of section 19, as set out below, are significant because they specify certain conditions to be inherent in the issue of the licence – such as permitting inspection of storage arrangements and not allowing unlicensed persons to possess or use the licensed person’s firearms.

19 Conditions of licence

(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

(2) Without limiting subsection (1), each licence is subject to the following conditions:

(a) the licensee must comply with the relevant safe keeping and storage requirements under this Act,

(b) the licensee must not permit any other person to possess or use any firearm in the licensee’s possession if that other person is not authorised to possess or use the firearm,

(c) the licensee must, in accordance with such arrangements as are agreed on by the licensee and the Commissioner,………..at any reasonable time, permit inspection by a police officer (or such other person as may be prescribed by the regulations) of the licensee’s facilities in respect of the storage and safe keeping of the firearms in the licensee’s possession,

(d) ……

(e) ……..

(3) A licence is subject to such other conditions as may be prescribed by the regulations.

91. The Tribunal considers that the imposition of conditions on firearms licences should occur in the context of the public interest, reflecting the principles and objectives of the Act. Public confidence in the licensing system is an aspect of that public interest.

92. As set out in section 19, it is already inherent in the conditions of any licence issued to any of the 3 Applicants that their firearms be stored safely and not accessed by any person who is not licensed, including Anthony Brandusoiu. Accordingly imposing a condition which limits storage away from Anthony Brandusoiu as suggested by all 3 Applicants, may be of little additional value.

93. The Tribunal considers that the public interest could be served by Mrs Brandusoiu being licensed to possess firearms with the condition that they be used and stored only at the family property at Mudgee. This would have the effect of strictly limiting Mrs Brandusoiu’s authorised storage and use of firearms to recreational hunting and vermin control.

Decision

94. In accordance with the provisions of section 63 (3) (d) of the Administrative Decisions Review Act 1997, the Tribunal sets aside the decision of the Commissioner, made on or about 28th March 2014 to revoke Mrs Brandusoiu’s firearms licence. The Tribunal remits the matter for reconsideration by the administrator in accordance with the Tribunal’s recommendations. Those recommendations are that Mrs Brandusoiu be issued with a firearms licence with the condition that any firearms for which Mrs Brandusoiu is licensed be used and stored only at the family property at Mudgee. This would have the effect of strictly limiting Mrs Brandusoiu’s authorised storage and use of firearms geographically and for the reason of recreational hunting and vermin control.

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

Decision last updated: 06 October 2015