Chaaban v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 93

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Chaaban v Commissioner of Police, NSW Police Force [2023] NSWCATAD 93

Hearing dates:

14 April 2023

Date of orders:

24 April 2023

Decision date:

24 April 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

LICENSING – firearms – fit and proper person – living and domestic circumstances - public interest – OMCG associates

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Evidence Act 1995

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194

Alkini v Commissioner of Police [2022] NSWCATAD 299

Austin v Commissioner of Fair Trading [2016] NSWCATAP 179

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254
Chief Commissioner of Police v Paterson [2023] VSC 172

Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

El Saadi v Commissioner of Police (No 2) [2021] NSWCATAD 336

Emery v Commissioner of Police [2022] NSWCATAD 122

Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70

Green v Commissioner of Police New South Wales Police Force [2014] NSWCATAD 59

Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Himo v Commissioner of Police [2021] NSWCATAD 321

In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127

Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31

LY v Commissioner of Police, NSW Police [2004] NSWADT 115

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
McDonald v Director General of Social Security (1984) 1FCR 353 at 357
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Newman v Commissioner of Police, NSW Police Force [2018] NSWCATAD 17

Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272

Saxby v Commissioner of Police [2021] NSWCATAD 275

Shi v Migration Agents Registration Authority [2008] HCA 31

Sobey v Commercial Agents Board (1979) 22 SASR 70

Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156

Tannous v Commissioner of Police [2011] NSWADT 116

Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Hilmi Chaaban (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Hartmann & Associates (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2022/00251348

Publication restriction:

Section 64 of the Civil and Administrative Tribunal Act 2013 applies to those paragraphs of these reasons identified as [Not for publication]. The information contained in those paragraphs is not to be disclosed other than to the Respondent without further order of the Tribunal.

REASONS FOR DECISION

1. On 12 June 2022 the Applicant, Hilmi Chaaban, applied for a Category AB firearms licence. On 1 July 2022 the Respondent decided to refuse the application, on the basis that it was not in the public interest for the Applicant to hold a firearms licence.

2. On 28 July 2022 an internal review application was lodged on the Applicant’s behalf, but, as he was not notified of the outcome of the internal review decision within 21 days, the internal review was taken to be finalised: s 53(9)(b) of the Administrative Decisions Review Act 1997(ADR Act). The Applicant then sought review by this Tribunal.

Relevant legislation

3. The general principles of the Firearms Act 1996 (the Act) are set out in s 3 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, and

(c) to facilitate a national approach to the control of firearms.

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

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

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

4. The Act, in setting out restrictions on the issue of licences, provides, relevantly at s 11:

...

(3) A licence must not be issued unless:

(a) the Commissioner is satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

...

(4) ... 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

…

…

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

...

5. Section 12 of the Act provides a further restriction on the grant of a licence, and relevantly provides:

12 Genuine reasons for having a licence

(1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.

…

(4) Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant—

states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and

is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.

6. “Recreational hunting/vermin control” is a genuine reason specified in the Table in s 12 of the Act and an applicant must satisfy certain criteria such as:

…

produce proof of permission given by the owner or occupier of rural land, or by an officer or employee of the National Parks and Wildlife Service, the Department of Industry or other authority prescribed by the regulations, to shoot on rural land, or

…

be a current member of a hunting club approved by the Commissioner in accordance with the regulations.

7. Clause 16 of the Firearms Regulation 2017 (Regulation) requires a licence holder to notify the Commissioner if there is a change in a particular in the licence within 14 days of the change. This includes a change in the genuine reason for which the person was issued with a licence, including the removal of a genuine reason or the inclusion of an additional genuine reason: cl 16(2) of the Regulation.

Evidence

8. The Applicant had provided a statutory declaration dated 13 July 2022 in the course of his application for internal review and provided a statement dated 17 March 2023. He also gave evidence and was cross examined.

9. The Applicant also provided a letter of authority by Sherryl Bagdadi dated 17 January 2023 and a letter from Ms Bagdadi of the same date. The Applicant also provided a statement by his sister, Rawanne Chaaban, dated 6 March 2023. Neither Ms Bagdadi nor Ms Chaaban was required for cross examination.

10. The Respondent provided material in accordance with s 58 of the ADR Act, and later, supplementary material.

11. The Respondent also relied on confidential material annexed to a confidential affidavit of Senior Constable Aaron Abela dated 29 October 2022. I do not propose to discuss in open Reasons any material that was presented on a confidential basis. Those parts of the Reasons that are not to be disclosed are identified as “[Not for publication]”, and Orders are made accordingly: s 64 of the Civil and Administrative Tribunal Act 2013. (CAT Act).

Tribunal’s approach

12. Section 63 of the ADR Act provides that in determining an application for review the Tribunal 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 a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shiv Migration Agents Registration Authority[2008] HCA 31.  Under s 28(2) of the CAT Act the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].

CONSIDERATION

Applicant’s licence history

13. On 8 August 2001, the Applicant applied for a firearms licence but his application was refused.

14. The Applicant applied again for a firearms licence and a licence was issued in October 2011. Another licence was issued in November 2016 when his previous licence expired.

15. On 23 April 2020, the Respondent decided to suspend the Applicant’s firearms licence on the ground that it was not in the public interest for the Applicant to continue to hold a firearms licence, and on 27 November 2020, the licence was revoked. That decision was affirmed on internal review.

On what basis was the Applicant’s licence application refused?

16. On 1 July 2022, the Respondent refused the application made by the Applicant on 12 June 2022 on the ground that the issue of a licence would be contrary to the public interest. It was noted that the Applicant had a history of associations with Outlaw Motorcycle Gang (OMCG) members and had failed to uphold his club participation requirements, which was a condition of holding his previous licence.

17. Before me the Respondent submitted that I should find that:

1. The Applicant is not a fit and proper person who can be trusted to have possession of firearms without danger to the public safety or to the peace within the meaning of s 11(3)(a) of the Act

2. The Applicant may not personally exercise continuous and responsible control over firearms because of the Applicant’s way of living or domestic circumstances pursuant to s 11(4)(a) of the Act

3. It is not in the public interest for the Applicant to hold a firearms licence pursuant to s. 11 (7) of the Act

The Applicant’s conduct

18. The Respondent pointed to a number of aspects of the Applicant’s conduct, which, it submitted, raised concerns about public safety should the Applicant be granted a firearms licence.

Assault in 1997

19. According to Police Facts, in June 1997, the Applicant approached a street performer in Darling Harbour and pulled a perspex aquarium type hat from her head. When the street performer pushed the Applicant away and slapped him in the face, the Applicant punched and damaged the hat, causing it to break. The Applicant was restrained by Darling Harbour Rangers who took him to City of Sydney Police Station. There he allegedly provided false details about his name and address. The Applicant was charged with common assault and destroy/damage property in relation to this conduct, but the charges were ultimately dismissed.

20. Before me the Applicant said he was just curious, as a 16 year old, to see what was inside the street performer’s hat. He denied that he had grabbed the hat but said that the street performer had grabbed him and when she would not let go, he punched the hat. He said the punch did not break the perspex: it broke when it hit the ground. He said he could not remember giving a false name and address to Police.

Alleged attempted murder: 1999

21. On 4 April 1999, the Applicant, who was then aged 17, allegedly engaged in conduct which ultimately led him to be charged with attempted murder. The Applicant and some associates, including his brother Abdul Chaaban (Abdul) were near the Applicant’s home. Two of the associates allegedly made abusive phone calls to their uncle and cousin. The uncle and cousin then attended the Applicant’s family home to confront the Applicant’s 2 associates, who then allegedly became aggressive towards their uncle and cousin. The uncle said words to the effect: “no one’s fighting”. Abdul allegedly threatened to kill the uncle. The Applicant allegedly approached the uncle from behind with a knife and stabbed him in the chest, stomach and hand. The Applicant allegedly said “I am going to kill you. Leave my brother and his friends alone”. The uncle ran away and the Applicant allegedly gave chase, dropping the knife. He then allegedly got into the driver’s seat of the uncle’s car, picked up his brother and his two associates and drove away. The uncle required extensive surgery.

22. The Applicant was charged with attempted murder but by the time the matter came on for hearing the charge had been downgraded to maliciously wound person with intent to inflect grievous bodily harm. However, when neither the uncle nor the nephew attended to give evidence, the charge was withdrawn.

23. Before me the Applicant was asked about the occurrence on 4 April 1999. The Applicant agreed the confrontation became heated “to a certain extent” but said it was dark, there were a lot of people, and there was confusion. The Applicant could not remember if the uncle said “no one’s fighting”; he said he was probably not there then, but he later conceded that he was obviously was there. When he was asked if he had stabbed the uncle, the Applicant replied “no comment”. He declined to answer further “on the grounds of self-incrimination”.

24. I then discussed s 128 of the Evidence Act1995 with the parties’ representatives. I offered to consider issuing a s 128 certificate so that the Applicant might give evidence about the occurrence. An alternative was discussed, namely, that if the Applicant chose not to seek to rely in a s 128 certificate and persisted with a refusal to answer questions on the basis that his answer might be self-incriminatory, the Respondent foreshadowed that I would be invited to draw conclusions from the failure of the Applicant to give evidence about the matter: Jones v Dunkel (1959) 101 CLR 98. The Applicant conferred with his solicitor, and decided to proceed without a s 128 certificate and responded to further questions about the occurrence with a refusal on the basis that his answers might be self-incriminatory.

Applicant’s alleged failure to comply with bail conditions

25. The Applicant was required to report to Police 3 times a week while on bail for the above offence. It was alleged that he was required to report to Bankstown Police Station each Monday, Wednesday and Friday between 0800 and 1800 but that he had failed to report in accordance with the bail conditions on Friday 11 February 2000 and that he had lied to Police that he had in fact reported.

26. According to Police Facts sheet the Applicant had attended Bankstown Police Station on 14 February 2000 to report in accordance with his bail conditions. It was then ascertained that he had not attended on the previous Friday. The Applicant was said to have told Police that he had in fact reported and that he had signed the bail card, although he could not recall the name or appearance of the officer who had noted his attendance.

27. Before me, the Applicant said he had attended Lakemba Police Station because his bail conditions had required him to attend the Police Station nearest to his home. The Applicant said he was “pretty sure” he had been arrested at Lakemba for allegedly breaching his bail conditions, and not Bankstown. He said “the Judge threw out the charge because of the confusion”, although this does not accord with Police records in relation to how the matter was dealt with. He could not now recall if he had in fact reoported on 11 February 2000. He denied that he had lied to Police to avoid getting into trouble for failure to attend.

28. [Not for publication]

Shooting outside the Applicant’s home: 2008

29. On 27 April 2008, a shooting took place outside the Applicant’s family home. Police located bullet casings on the road and on the footpath outside the home, and on the veranda of the home. A member of the public later reported to Police that a bullet had damaged her vehicle which was parked on the roadway nearby. The Applicant’s family members at the property told Police that they were watching TV in the loungeroom at the time of the shooting and could not provide any further information. The Applicant and Abdul were absent from the home when Police arrived and family members said they did not know where they were.

30. Before me, the Applicant said there had been “quite a few shootings outside his house and in the street and in the area” and that 2 of the shootings had been in his street.

31. He strongly denied that he was involved in the shooting; he said he had come home to find a lot of Police in the street. He strongly disagreed with the proposition that he had removed firearms from the house before the arrival of Police. He denied being involved in organised crime, nor were any other family members, to his knowledge.

32. [Not for publication]

33. He said that Abdul did not live at the family home in 2008; he had moved to Brisbane for work for a few months, but he did not know if that was actually at the time of the shooting. In earlier evidence he had said Abdul had moved out in about 2010-12 before his marriage. He said he did not think his brother’s whereabouts were relevant to the application and, in any event he, the Applicant, was a high school dropout and had a poor memory.

34. [Not for publication]

Alleged false statement to Police: 10 September 2011

35. On 10 September 2011, the Applicant was observed by Police sitting in the driver’s seat of his car on a public road. He reportedly told Police that he was waiting for his GPS system to locate an address, however Police observed that the GPS system did not have any address entered into it. The Applicant then provided a false date of birth to Police and told Police that he had not previously been in trouble with Police.

36. Before me, the Applicant denied providing Police with a false date of birth, indicating that they had viewed his driver’s licence. He said he could not specifically recall being asked if he had previously been in trouble with the law. He said that, in any event, his perception was that charges against him had been dismissed so to answer “no” was probably correct.

Assault of a taxi driver: 2018

37. On 18 April 2018, the complainant, a taxi driver was parked in the street outside the Applicant’s home where, he said, he would exchange keys for the taxi. The Applicant allegedly approached him and yelled at him to go away. The Applicant allegedly grabbed the complainant’s mobile phone, squeezed the screen of the phone until it shattered, and punched the complainant in the face while holding the phone, causing glass particles into the complainant’s face. The Applicant then allegedly threw the phone at the complainant’s chest before walking back into his home. The complainant locked himself in the car and phoned 000 for the Police and ambulance. When questioned by Police, the Applicant denied assaulting the complainant but said he had merely confronted him because he “feared he may be a paedophile” as he had seen him there for long periods of time over multiple occasions. He said the complainant’s mobile phone broke when he got out of the car and dropped it and the Applicant had picked it up and handed it to him. The Applicant was asked about CCTV cameras at his premises, but he said they were “dummies”. No other witnesses or CCTV footage were available.

37. The Applicant addressed the incident in his statement of 17 March 2023, as did his sister in her statement of 6 March 2023. He wrote that he had walked to the complainant’s car to ask if he was OK and tried talking to him; he denied he had confronted him, as he reportedly told Police. He repeated his earlier explanation of events. It was his sister, he said, who called the Police.

38. Before me, the Applicant admitted that he yelled at the complainant to go away. He said the phone broke when it fell to the ground when the complainant got out of the car; he had “instinctively” picked it up and handed it back to the complainant. He denied that he had punched the complainant damaged the phone or thrown it at the complainant.

39. Ms Chaaban wrote that she had seen the vehicle for a few days and that the man “looked suspicious”, and she thought he was looking inside their house and it made her feel uncomfortable; she said she feared for her and her family’s safety. She gave an account consistent with that of the Applicant, but said he had gone to “confront” the driver. Both the Applicant and Ms Chaaban said the complainant did not show any injuries to attending ambulance officers, but it is unclear how they came to make such an observation, especially as the Police noted the attending ambulance had flushed out the complainant’s eye.

The Applicant’s close associates

Abdul

41. Abdul is the managing director and sole director/shareholder of a construction business, for which the Applicant occasionally works. On the Applicant’s evidence, Abdul lived in the family home until about 2010 or 2012.

42. According to Police records:

1. On 21 November 2008, Abdul and three others attended a residential property in relation to a dispute over ownership of that property. Abdul and those with him demanded to be allowed into the property, and when refused, forced open the front security door and entered the house. Upon entry, Abdul reportedly said to the occupier of the house, “I will slit your throat” and the occupier was chased into the backyard and over the fence.

2. In 2009, Abdul had been sub-contracting for another business owner, but when his work was considered to be not up to standard and that he was inflating his invoices, a dispute ensued. In December 2009 when invited to attend the office to discuss what was owed, Abdul produced a firearm and demanded $50,000 for outstanding work.

3. On 15 February 2010, Abdul drove his vehicle in front of the complainant’s vehicle, forcing the complainant to pull over. Abdul approached the complainant, who had claimed Abdul owed him money, and struck the complainant to the face multiple times. When reporting the matter to Police, the complainant expressed concern that Abdul may be in possession of a firearm. The complainant later withdrew his complaint on the basis that the dispute would be resolved through community means.

4. On 19 January 2011 at 11:30pm, Abdul, or a person directed by him, attended the home of a person with whom he was in a dispute over money Abdul claimed he was owed. The person banged on the door, indicated they were looking for the occupier’s son, and said, “Abdul wants his money, you’ve got two days”.

43. [Not for publication]

44. Messrs Radi and Sako

45. On 16 January 2011, the Applicant was travelling in a vehicle with three others - Abdul, Joseph Radi and Thamir Sako. In his statutory declaration dated 13 July 2022, submitted to the Respondent in the course of the internal review application, the Applicant wrote that he only knew ‘the driver’ and had never met the other person. The Applicant wrote that he had not seen either of them since that day and he had “severed all ties” when he learned of their OMCG connections. Before me he said he was not sure who was driving but he knew Mr Sako through work.

46. Messrs Radi and Sako are each well-known to Police for violent offending and OMCG membership or connections. According to Police records it is alleged:   

1. On 14 April 1996, Mr Sako and two other males attended a greengrocer’s store at Wetherill Park shortly after the business had closed for the day. When the proprietor left the store with a briefcase, Mr Sako and another male approached him with a shortened shotgun (the other male being armed with a revolver). Mr Sako and the other male demanded and obtained the complainant’s briefcase containing the day’s takings of $22,500 and they fled the scene.

2. On 17 April 1997, Mr Sako attended licenced premises in Fairfield with a group of associates and was confronted by an on-duty police officer, Constable Carty. Later, when Constable Carty ended his shift and was off-duty, he returned to the licensed premises. When he left, at about 2.00am, Mr Sako (with a group of associates) approached Constable Carty, and attacked him, punching and kicking him repeatedly, including Mr Sako stomping on the officer’s head. Constable Carty also suffered a stab wound to the chest and his nose, and one ear was severed; Constable Carty ultimately died from his wounds. Mr Sako was charged with murder and maliciously inflict grievous bodily harm in relation to the attack.

3. On 30 January 2011, Police observed Mr Sako in Bondi wearing full Rebels colours including a patched vest. Mr Sako told Police that he was a full member of the Penrith Chapter of the Rebels OMCG and that he was required by the club to wear colours while riding his motorcycle.

4. On 27 January 2012, Mr Sako was pulled over by Police in the Sydney CBD. Mr Sako told Police that he had previously been a member of the Rebels OMCG but was no longer a member from about April 2012. Mr Sako was nonetheless observed wearing rings with “1%” and Rebels insignia on them at the time.

5. On 12 August 2014, a person attended Mr Radi’s home which was, at the time, being rebuilt following a fire-bombing. Mr Radi told him to “fuck off’, and a brawl ensued. During the course of the brawl, the person fired multiple shots.

6. On 15 May 2016, Mr Radi was pulled over by Police in Glebe for a random breath test. Mr Radi told Police that he was involved with the Rebels OMCG “like five years ago". Mr Radi told Police that he still associated with members of the Rebels OMCG but that he no longer did “any shit”.

47. [Not for publication]

Statements made by the Applicant in connection with licence applications

48. On 16 August 2011, the Applicant applied for a Category AB firearms licence, listing “sport/target shooting” and “recreational hunting/vermin control” as his genuine reasons for holding a licence and that he was a member of the Hellenic Australian Hunting & Target Shooting Club. The Applicant did not indicate that he had permission from the owner or occupier of rural land to shoot on their property.

49. In that application, the Applicant also incorrectly indicated that he had never been refused a firearms licence, whereas he had been refused a licence in 2001.

50. On 2 September 2016, the Applicant re-applied for a Category AB firearms licence and again incorrectly indicated that he had never been refused a firearms licence.

51. In the same application the Applicant also indicated that he was fee-exempt on the basis that he was a primary producer.

52. Also, the Applicant’s genuine reasons for holding a firearms licence remained “Sport Target Shooting” and “Rec Hunting Vermin Control - Hunting Club”. However, since 1 April 2017, the Applicant has not attended a club-related hunting activity with the Sporting Shooters Association of Australia.

53. On 13 June 2022, the Applicant applied for a further firearms licence. In that application, the Applicant again incorrectly indicated that he had never been refused a firearms licence. The Applicant again specified that his membership of a hunting club was the genuine reason for requiring a firearms licence.

Participation requirements

54. On 14 January 2021, the Sporting Shooters Association of Australia wrote to the Commissioner setting out the Applicant’s attendances at club-associated hunting events from the date of his membership, 6 September 2014 to the date of the letter. During that period, the Applicant had attended five club-related hunting activities in the period 1 April 2016 to 31 March 2017, but no other club-related hunting activities.

55. The letter of authority provided by Ms Bagdadi gave the Applicant permission to shoot on her property at Neville. In her accompanying letter she wrote that he had permission to shoot feral animals such as rabbits, foxes, pigs and wild goats, from the date she purchased the property in June 1014. She wrote that he would stay at the property about 8-10 times a year, staying for about 2-3 days at a time. This information was not provided to the Firearms Registry, until Ms Bagdadi supplied the information in the course of these proceedings.

Applicant’s driving history

56. The Respondent referred to the Applicant’s extensive history of non- compliance with the motor vehicle licensing scheme, having recorded 12 traffic infringements between 2001 and 2019, including: operating a motor vehicle while not wearing a seat belt (2001); riding a motorcycle with an engine capacity of over 260 cc while holding a provisional motorcycle licence (2002 and 2003); speeding (6 occasions: 2002, 2008, 2010, 2010, 2015, and 2019); failing to display P-Plates (2003); and negligent driving (2003).

Is the Applicant a fit and proper person to hold a firearms licence?

57. Section 11(3) of the Act requires that the Tribunal be satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.

58. The question whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond[1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities: per Toohey and Gaudron JJ at 380. See also Hughes and Vale Pty Ltd v New South Wales (No.2)[1955] HCA 28 (1955), Re Percival and Australian Securities Commission[1993] AATA 196, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALP 794 at [41].

59. In Sobey v Commercial Agents Board(1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she “is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.” See also Austin v Commissioner of Fair Trading [2016] NSWCATAP 179 at [58]. In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.

60. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, past conduct of the Applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force[2018] NSWCATAD 156 at [141]. 

61. The Applicant has a personal history of engaging in violent conduct. The 1997 assault was a random and unprovoked physical attack on a stranger in a public place. While the Applicant sought to explain his conduct as “curiosity” about the complainant’s headgear, I do not accept that the altercation, as recorded by Police, can be so readily dismissed. I accept though, that this occurred when the Applicant was aged 16, whereas now, he is aged 41.

62. More recently though, the Applicant allegedly assaulted a taxi driver outside his home in April 2018. The complainant’s account was that the Applicant approached him, yelled at him to go away, grabbed his phone and broke it, punched him in the face, and threw the phone at him. The Applicant said he had “confronted” the complainant, and Ms Chaaban also said he had confronted the complainant. The Applicant said he “feared [the complainant] may be a paedophile”, and, according to Ms Chaaban he “looked suspicious” and she feared for the family’s safety. The Applicant denied assaulting the complainant. The Applicant’s evidence was that he had gone to the complainant’s car to ask if he was OK, although he also said, somewhat inconsistently, that he had yelled at him to go away. The Applicant’s account was that the complainant’s mobile phone broke when he, the complainant, dropped it getting out of the car and the Applicant had picked it up.

63. The Applicant’s account is completely at odds with that of the complainant. I accept that both the Applicant and Ms Chaaban may have been concerned about the ongoing presence of an unknown person in the vicinity of their house. I do not accept, however, that there was no physical altercation. In coming to that view, I note that the Applicant conceded that he had “confronted” the complainant. It was the complainant who called 000 to seek assistance from the ambulance service, and his eye was flushed out by attending ambulance officers, according to Police records. It was the complainant who brought to the attention of Police that there were CCTV cameras at the Applicant’s premises, presumably on the basis, that whatever may have been recorded would be consistent with his version of events.

64. The attempted murder in 1999 allegedly involved an attack by the Applicant in which the victim was stabbed multiple times, and where the Applicant chased after the him when he tried to get away. The available evidence suggests that the matter may have been withdrawn because the victim and witness failed to attend court to give evidence.

65. The Applicant’s solicitor submitted that I should not place too much weight on the Applicant’s failure to be drawn on the subject of the stabbing and referred me to Green v Commissioner of Police New South Wales Police Force [2014] NSWCATAD 59 in which Professor Walker Senior Member considered that a person who genuinely believes himself to be innocent of, or less than fully blameworthy for, an offence should be permitted to say so without being unduly prejudiced for it: per Re Toro Martinez and Minister for Immigration and Citizenship[2008] AATA 511 at [101]. Here, though, as the Respondent pointed out, the Applicant did not deny the allegations, he merely provided no comment.

66. Notwithstanding the dismissal of the charge against the Applicant, the Tribunal is to take into account matters indicating criminal conduct, even in circumstances where the Applicant was not charged with offences: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 at [62] - [64]. It is the conduct, rather than whether there is a conviction, which is of concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force[2014] NSWCATOD 70. See also Hariri v Commissioner of Police[2022] NSWCATAD 5 at [60].

67. With respect to this serious allegation the only evidence before me directly relating to the stabbing was that provided by the Respondent and included accounts from witnesses, and that that evidence is untested. While Jones v Dunkel does not apply in Tribunal proceedings, a failure to lead evidence impacts on the case that is presented to the Tribunal: Addison v Commissioner of Police, NSW Police Force[2019] NSWCATAD 99 at [46]. On the available evidence, I find, on the balance of probabilities, that the Applicant is likely to have stabbed the victim.

68. The 2008 shooting outside the Applicant’s home involved the discharge of multiple firearms on the Applicant’s property and the surrounding area. Further, a bullet damaged a vehicle which was parked nearby. Because there were different calibres and locations of the cartridges, it is reasonably likely that the shooting involved multiple parties firing at each other. It is also likely that, because there were small calibre cartridge casings on the veranda of the Applicant’s family home, shots were fired from the Applicant’s property.

69. [Not for publication]

70. [Not for publication]

71. This incident demonstrates an extreme risk to public safety; the Applicant’s home and his street have been the scene of violent activities and this itself raises concerns as to public safety. Furthermore, a member of the public was affected by the incident.

72. The Applicant has a history of associating with other individuals who also have histories of violence. Abdul has a history of alleged violence and intimidation, including the use of firearms. The Applicant’s evidence was that he does not have much contact with Abdul and that they both live busy lives. He said though that he occasionally works for Abdul if there is a need and that Abdul visits the family home 2-3 times a week, ostensibly to visit their parents. As the Tribunal observed in Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43 at [60]:

… it is well known that criminal organizations often seek to make use of persons who have no criminal record in the furtherance of their criminal activities. One of the forms that can take is arranging for such persons to store prohibited firearms on behalf of gang members.

73. I consider that there is a real risk that the Applicant may be pressured to provide access to firearms or ammunition, or to store such items on behalf of Abdul, which might then be used in the commission of offences by Abdul or others.

74. The Applicant has also demonstrated a willingness to associate with criminals and OMCG members and associates, in particular, Messrs Radi and Sako, each of whom have significant histories of violence and OMCG connections. Although the Applicant’s evidence was that he no longer associates with those persons and was not aware of their criminal character, it remains that the Applicant did in fact associate with them. Even if the Applicant were not aware of their criminal associations, his conduct suggests extreme and, in my view, unlikely, naivety or, more likely, recklessness as to with whom he associates. While it is possible that the Applicant was naive to his associates’ backgrounds, such naivety may make him vulnerable to pressure from others.

75. The Tribunal has held that even when there is no evidence that an applicant has personally engaged in criminal activities, he or she could come under pressure to make guns or ammunition available to criminals or criminal organisations if they remain associated with such persons or organisations: Adams v Commissioner of Police, New South Wales Police Force[2017] NSWCATAD 194, at [90]; see also El Saadi v Commissioner of Police (No 2) [2021] NSWCATAD 336. This not a matter like Mekhitarian v Commissioner of Police [2021] NSWCATAD 309, where the Applicant had cut off all association with his errant son; the Applicant still sees Abdul several times a week, and may see other associates.

76. The Applicant referred me to the decision of NS Isenberg RFD in Newman v Commissioner of Police, NSW Police Force [2018] NSWCATAD 17 where the Tribunal set aside the decision under review notwithstanding that the Applicant had been a member of an OMCG. There, unlike in this matter, there was no evidence of the Applicant having ever been charged with serious offences.

77. [Not for publication]

78. The Applicant has a history of proving false information in connection with his firearms applications. The Applicant first applied for a firearms licence in 2001, which application was refused the following year. On 3 subsequent occasions, including in his present application, the Applicant, when applying for a firearms licence, falsely claimed that he had never been refused a firearms licence, despite that having occurred in 2002. Further, in his 2016 application, he claimed to be fee-exempt on the basis that he was a primary producer.

73. When, after 2014, on the evidence of Ms Bagdadi, the Applicant had permission to shoot at her property, and did so with some frequency, he failed to inform the Firearms Registry as to his genuine reasons for holding a firearms licence as required by the Act. While his change in genuine reason may have alleviated his participation responsibilities, it remained that, as a licence holder he was obligated to notify the Firearms Registry: Alkini v Commissioner of Police[2022] NSWCATAD 299 at [69].

74. His clear incorrect responses in his applications and his failure to inform the Firearms Registry of his change in genuine reason demonstrates a disregard for the licensing regime. In Saxby v Commissioner of Police[2021] NSWCATAD 275 (Saxby) I observed that if an applicant had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. Furthermore, I considered that, on that basis alone, it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a  firearms licence: see Bladen v Commissioner of Police, New South Wales Police Force[2015] NSWCATAD 240. 

75. As in Saxby, it is difficult to conclude that the Applicant did not knowingly intend to provide false information.

76. In Leatham v Commissioner of Police[2021] NSWCATAD 121 at [18] I said that one of the objectives of the Act is the functioning of a proper system of firearms  licensing, which necessarily depends on applicants providing true and correct information in a comprehensible manner. In this matter, the Applicant failed, not once, but three times, to answer correctly the clearly worded and unambiguous question of whether he had previously been refused a firearms licence. There was no suggestion whatever that the Applicant was ever a primary producer, so his false claim for exemption on that basis can only have been made deliberately.

77. It is trite to say that holders of firearms licences must understand and comprehend the requirements of the Act and the Regulation, and must also act in accordance with them, and he did not do so on multiple occasions.

78. The Applicant had multiple traffic infringements. It is well established that repeated breaches of traffic laws and regulations are a relevant consideration in determining whether a firearm licence should be granted: Tannous v Commissioner of Police[2011] NSWADT 116 at [32] and [37]; see also Himo v Commissioner of Police[2021] NSWCATAD 321. The Applicant’s conduct in relation to traffic offences may indicate an inability to observe, or an intentional disregard for, rules which are imposed for public safety and indicate a lack of regard for his own safety and that of the public. Given the extensive history of traffic infringements, I cannot be satisfied that similar conduct will not be repeated, given his long-standing disregard for the traffic regulatory scheme. Similarly, I cannot be satisfied that he may not disregard aspects of the firearms regulatory scheme, as he has done in the past, including in his present application.

79. The Applicant has a personal history of providing information to Police which is likely to be false, for example:

1. Following his arrest for the 1997 assault, the Applicant reportedly provided Police with false names and addresses.

2. While on bail for the 1999 attempted murder, the Applicant reportedly lied to Police about having reported for bail in compliance with his bail conditions.

3. When questioned by Police in his vehicle in 2011, the Applicant reportedly lied to Police about his GPS usage, whether he had been in trouble with Police before, and his date of birth.

86. It is simply too co-incidental that the Police had incorrectly recorded on each occasion the information the Applicant had provided, as the Applicant seemed to suggest in his evidence by way of explanation. The Applicant’s misleading Police demonstrates an apparent disrespect for Police, and is a factor in considering whether he is a fit and proper person to hold a firearms licence.

87. The Applicant’s solicitor referred me to Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272 at [47] where Professor Walker SM said that licence holders are not required to have led entirely exemplary lives. In this case, the Applicant’s history set out above cannot be so readily discounted. Similarly, the “objective seriousness” of allegations against the Applicant over the years cannot be discounted: Chief Commissioner of Police v Paterson [2023] VSC 172.

88. As I observed in the course of the hearing many of the matters upon which the Respondent now relies were already known to Police at the time the Applicant was issued with a firearms licence in 2011 and again in 2016. The Respondent submitted that there was now “a different factual matrix”. I agree that there has been the additional matter of the assault in 2018, as well as fresh confidential information.

89. For these reasons, including my observations in relation to the confidential material, I am not satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.

The Applicant may not personally exercise continuous and responsible control over firearms because of his way of living and domestic circumstances

90. The Respondent submitted that, due to the 2008 shooting outside the Applicant’s family home, the Applicant’s way of living and domestic circumstances are such that he may not personally exercise continuous and responsible control over firearms.

91. In LY v Commissioner of Police, NSW Police[2004] NSWADT 115 at [41]- [43], the Tribunal held that the Commissioner, and hence the Tribunal on review, must objectively be satisfied, from established facts, of the matters set out in s 11(4)(a) of the Act, that is, whether the Applicant’s domestic circumstances are such that he may not personally exercise continuous and responsible control over his firearms. See also Meggit v Commissioner of Police [2022] NSWCATAD 353, at [27].

92. In Tolley v Commissioner of Police, NSW Police[2006] NSWADT 149 at [31] the Tribunal observed that given the breadth of the discretion and the overriding object of public safety, there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence. Consequently, the conduct of Abdul and any person with whom the Applicant associates is a relevant factor in determining whether the Applicant may personally exercise continuous and responsible control over firearms: see also Emery v Commissioner of Police [2022] NSWCATAD 122.

93. [Not for publication]

94. I am satisfied that the Applicant may not exercise continuous and responsible control over firearms because of his way of living and domestic circumstances. I observe that the Applicant offered to have his firearms stored elsewhere as a condition of a licence, but I do not consider that this would overcome my concerns in relation to public safety, discussed above.

Public interest

95. The Respondent also contended that it is not in “the public interest” for the Applicant to hold a firearms licence: s 11(7) of the Act. Having found that the Applicant is not a fit and proper person to hold a firearms licence, it is difficult to envisage circumstances when it can be in the public interest for an applicant to hold such a licence. Nonetheless I turned to consider the “public interest”.

96. The term is not expressly defined in the Act or Regulation. It is well-settled though that “the public interest” is to be considered relative to the objects of the Act and the firearms licensing system, with public safety being give paramount consideration: see, for example, Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. The Tribunal exercises the discretion in s 11(7) of the Act in accordance with the Act’s objects and underlying principles as set out in s 3 of the Act. The Tribunal has repeatedly said that an applicant is not required to discharge an almost impossible burden of proving a near absolute negative, but, rather, the Tribunal must take into account 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]. Further, when assessing the public interest, only real and appreciable risk needs to be taken into account; 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 clear though that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant’s interest in holding a firearms licence. While the Applicant may wish to undertake hunting activities on Ms Bagdadi’s property, that private interest cannot outweigh concerns for public safety.

97. The underlying principles of the Act stated in s 3(1) emphasise that firearm possession and use is a privilege, not a right. Strict controls on the possession and use of firearms are imposed, particularly in the interests of public safety. Taken together with the matters outlined above, I find that the Applicant’s circumstances are such that it would be contrary to the public interest for him to hold a firearms licence.

DECISION

98. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 24 April 2023