Chamoun v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 113

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Chamoun v Commissioner of Police, NSW Police Force [2025] NSWCATAD 113

Hearing dates:

3 February 2025

Date of orders:

21 May 2025

Decision date:

21 May 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J D Little, Senior Member

Decision:

The decision is affirmed.

Catchwords:

Firearms Act - firearms licence - refusal of licence - contrary to the public interest – close association

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2006

Cases Cited:

Campbell v Commissioner of Police, NSW Police Force [2024] NSWCATAD 188

Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16

Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63

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

Farran v Commissioner of Police, NSW Police Force [2024] NSWCATAD 351

Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68

McDonald v Director General of Social Security (1984) 1 FCR 354

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

Category:

Principal judgment

Parties:

Joseph Chamoun (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Sydney Criminal Lawyers (Applicant)
Holding Redlich (Respondent)

File Number(s):

2024/00158031

Publication restriction:

(1) Except pursuant to the order below, the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013.

(2) A copy of these reasons, without redaction, shall be released to the Respondent.

REASONS FOR DECISION

1. This is an application brought by the Applicant seeking review of decisions under the Firearms Act 1996 (the Act) by a delegate of the Commissioner of Police (the Respondent). The delegate determined to refuse the Applicant's category AB firearm licence by way of a decision dated 20 March 2024.

Background

2. In 2015, the Applicant was issued with a learner’s licence. Since that time, he has recorded nine traffic infringements which include negligent driving in 2016, speeding on five occasions in 2016, 2017, 2020 and twice in 2022, failing to stop at a red light in 2019, disobeying a turn sign at an intersection in 2020 and disobeying traffic lights in 2021. The Applicant’s driver’s licence has been suspended on two occasions in 2017 and in 2022.

3. On 18 January 2020, Police were conducting operations at The Star Casino with the assistance of drug detection dogs. At 11.10 pm, Police observed the Applicant enter the casino via the escalators. When the applicant reached the top of the escalators where multiple uniformed Police and a drug detection dog was visible, the applicant's friend said to him, "There's another entrance that way". The Applicant then started to walk away from the drug detection dog as it came closer.

4. Police approached the Applicant. During a conversation with the Applicant, the Applicant made full admissions to having a bag of cocaine in his pants pocket.

5. Police observed that the Applicant had dilated pupils, was physically shaking and was constantly looking towards the ground. Police subjected the Applicant to a search and located a clear resealable bag containing cocaine in the Applicant's back pants pocket.

6. The Applicant was then charged with possessing a prohibited drug, for which he was made subject to a conditional release order (CRO) without conviction for a period of 6 months. The CRO expired on 11 August 2020.

7. In January or February 2021, the Applicant moved to a rural property which was more than a two-hour drive from Sydney and comprises approximately 64 acres. The property has livestock and the Applicant’s neighbours live about 1 km away. Prior to this time, the Applicant had been living at his parents’ residence.

8. On 25 September 2021, the Applicant was issued with a firearms licence.

9. On 21 December 2021, the Applicant's parents were each charged with offences for:

1. two counts of conspiring to take/detain a person with intent to obtain an advantage;

2. two counts of conspiring to demand with menace with intent to obtain gain or cause loss; and

3. conspiring to cause grievous bodily harm to a person with intent.

10. The above charges were withdrawn on 7 October 2022 and the Applicant's parents instead pleaded guilty to amended charges for two offences of conspiring to intimidate with the intention of causing fear of physical and mental harm.

11. On 14 February 2023, intensive correction orders were imposed on each of the Applicant's parents for a period of 18 months, which concluded on 13 August 2024.

12. The circumstances which led to the sentences are set out in an agreed statement of facts. The Applicant's parents believed that a financial advisor, had defrauded them in the amount of approximately $16 million. They also believed that another person (Mr M) would be able to remove caveats over their properties.

13. [NOT FOR PUBLICATION]

14. From 15 to 21 December 2021, Police conducted a controlled operation in which an undercover operative met with the Applicant's parents on four occasions to discuss arrangements to have Mr M remove the caveats and to recover the money the parents believed was owed to them by the financial advisor.

15. On 16 December 2021, the Applicant's parents met with the undercover operative and instructed him to force the financial advisor until he paid, although they confirmed that they did not want the undercover operative to kill anyone. The Applicant’s father paid the undercover operative an amount of $8,000 in cash as a deposit. It was also agreed that the operative could take 10% of any money which could be obtained from the financial advisor

16. [NOT FOR PUBLICATION]

17. On 17 December 2021, the Applicant’s parents met again with the undercover operative and expressed concerns about the arrangements involving the financial advisor. Their lawyer told the Applicant’s father to stop and the undercover operative was told to delay because they wanted the caveats to be removed first. They told the undercover operative to go to Mr M’s office and tell him that there would be issues if the caveat was not removed and to scare him.

18. On 21 December 2021, police executed a search warrant at the Applicant’s parents’ home and placed them under arrest for conspiring to kidnap two people. This was also the home of the Applicant. According to the event report, police also seized a small amount of cocaine located in the Applicant’s bedroom. The Applicant denies that the cocaine belonged to him and denies that it was located in his bedroom but gives evidence that, according to the seizure report which is annexed to his Affidavit, it was located in his parent’s bedroom. The Applicant also relied on the body worn footage.

19. Police also discovered half of a joint of cannabis in the Applicant’s bedroom.

20. On 21 December 2021, the Applicant's firearms licence was suspended.

21. [NOT FOR PUBLICATION]

22. On 20 April 2022, the Applicant was assisting at the automotive repair business owned by his parents when two men, Mr C and Mr J, entered the shop. Mr C asked the Applicant where his dad was and told the Applicant that his mother owed them money. After the Applicant said that he did not know what this was about, Mr C moved towards the Applicant and began to clench his fists, flex his arms and grit his teeth. Mr C then said, "Don't test me", causing the Applicant to feel fear that he was going to be hurt in some way.

23. The Applicant's father then returned from a neighbouring shop and spoke with Mr C. Mr C told the Applicant's father, "your wife owes me a lot of money" and "It's getting serious now. She needs to pay". The Applicant and his father reported the incident to the police

24. On 1 July 2022, the Applicant's licence was revoked due to concerns regarding the Applicant's living and domestic circumstances and concerns relating to the Applicant's possession of cocaine. The Applicant applied for internal review which was affirmed

25. The Applicant applied for a firearms licence on 20 October 2023 and 20 March 2024, which were both refused. The Applicant applied for internal review of the 2024 refusal, which was not determined within the prescribed period and was a deemed refusal.

26. On 29 April 2024, the Applicant filed an application for administrative review of the refusal dated 20 March 2024.

Legal principles

Jurisdiction

27. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material to either confirm the original decision, vary it or set it aside and substitute another.

28. Section 63(1) of the Administrative Decisions Review Act 1997 (ADR Act) provides that 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 any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and there is no presumption that the [Commissioner's] decision is correct: McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.

29. 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: Civil and Administrative Tribunal Act 2013, s 38(2) (CAT Act).

Firearms Act

30. The underlying principles of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68 at [44] emphasis that strict controls on the possession and use of firearms are imposed for this reason.

31. Section 11(7) of the Act, provides that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

32. The term 'public interest' is not defined but the Courts and this Tribunal have consistently held that the concept of the 'public interest' is designed to give the broader interests of the community priority over private interests: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657.

33. The purpose of the reference to 'public interest is to ensure that private interests are not only matters considered: to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the 'scope and purpose of the legislation.

34. The public safety is to be given paramount consideration, as mandated by the relevant firearms legislation. The underlying principles of the Act are set out in s 3 and include:

(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…

35. The Tribunal has previously determined that close family or personal relationships can give rise to unacceptable risks to public safety due to the criminal offending and/or character of those persons: Campbell v Commissioner of Police, NSW Police Force [2024] NSWCATAD 188; Farran v Commissioner of Police, NSW Police Force [2024] NSWCATAD 351; El Saadi v Commissioner of Police (No 2) [2021] NSWCATAD 336.

Evidence and submissions

The Respondent

36. The Respondent contended that the correct and preferable decision is for the applicant to be refused a firearms licence due to:

1. the risks arising from the applicant's close association with his parents; and

2. the applicant's conduct relating to possession of cocaine and his driving record, which indicates a disregard for rules directed to public safety.

37. The Respondent also questioned the reason for which the Applicant required a firearm as the Applicant had lived at his rural property for two years and had apparently been able to maintain the property without a firearm.

38. In addition to the s 58 bundle and the Respondent’s oral submissions, the Respondent relied upon:

1. Open and closed written submissions;

2. Affidavit of Ms Mandy Chau, a solicitor retained by the Respondent, annexing the Statement of Agreed Facts relied upon in the proceedings brought by the Crown against the Applicant’s parents;

3. Bundle of confidential materials.

39. With respect to the confidential materials and closed submissions, non-disclosure orders were previously made with respect this material relied upon by the Commissioner.

The Applicant

40. The Applicant contends that he requires a firearm for the protection of his livestock and to manage vermin. He gave evidence that he has suffered significant damage because of the absence of a firearm and although his neighbours have been assisting him, he cannot keep relying on them and, in any case, they are not always able to assist.

41. As indicated above, he denied that the cocaine found on 21 December 2021 was and relies on the seizure report and the body worn footage with the former listing it as being found in the main bedroom which belonged to his parents and the latter indicating the same. With respect to the earlier incident in 2020, the Applicant expressed that he took full responsibility and pled guilty but also indicated that he has been committed to abstinence since that time. In support, the Applicant indicated he was undertaking a drug test.

42. With respect to the traffic offences, it was submitted that the evidence did not rise high enough to refuse a firearms licence noting that the last offence was in 2022 and he has matured since that time.

43. With respect to the conduct of his parents, the Applicant submitted that he led an independent life from his parents and was not involved in their conduct. The Applicant contended that their conduct should not be attributed to him. The Applicant, by way of submission, indicated that the Applicant did not have a close relationship with his family

44. In addition to the Applicant’s oral submissions, the Applicant relied upon:

1. The administrative review application filed 29 April 2024.

2. USB of the police body worn footage described above

3. Affidavit of the Applicant of 12 November 2024

4. Written submissions in chief and written submissions in reply attaching several annexures included a photographs of the shed that the Applicant would store his firearms if licenced.

45. The Applicant also gave oral evidence and was cross-examined. The Applicant’s evidence included that:

1. His family visited him in 2022 and 2023 “quite a lot” but that they had not visited since 2023 as they had grown apart. He accepted that during the execution of the search warrant on 21 December 2021, he still had a bedroom at his parents’ home despite having acquired and moved to the rural property.

2. He admitted that he still saw them approximately twice a month (approximately once very two weeks) but that these visits occurred in Sydney at his parents’ home and not on his rural property. In response to questions that he still appeared to maintain a close relationship with his parents, the Applicant indicated that it depended on what was meant by “close” and that it was not the case that they were involved in every bit of his life.

3. In 2022, he helped his father with renovations at the back of a property in Croydon out of which his father run an automotive business. This was for “about a month” and he stayed with is partner in Sydney during that time. However, during re-examination, the Applicant accepted that he stayed with his parents on occasion in 2022 which was on a random basis like, for instance, if his partner was away. He indicated that in 2023, he had stayed with his parents around 15 times.

4. He was employed as a National Facilities Manger which included to manage residential blocks with the bulk of the property in Sydney. He commenced that role on 29 August 2022 which required about 40 hours of work a week. In answer to how he was able to undertake that role from his rural property, the Applicant indicated that he needed to travel to Sydney but that a lot of the administration could be done while at the rural property. The Applicant informed the Tribunal that he comes to Sydney two or three times a week. In re-examination, it was indicated this was three times a week.

5. In December 2024, the Applicant became a Building Manager but that when he came to Sydney for that role, most of the time he would drive back to the rural property rather than staying in Sydney. However, if he did stay, he stayed with his partner.

6. While he was in Sydney, family friends looked after the livestock who have similar businesses, and he was not aware that any of these friends had a criminal history.

7. With respect to the joint that was found in his bedroom at his parent’s property, he informed the Tribunal that he had friends over a few years prior and had put it in the drawer and had not thought about it again. He said he had cooperated with the police and had told them about ut.

8. He would abide by any conditions applied to his licence such as that the firearms stay on his rural property and his parents cannot attend that property. He would tell his parents they could not come to the rural property if that was necessary. He described the detached garage that he intended to safely store his firearms as no one else would have access and he also intended to install motion detection senses. A photograph of the shed was admitted into evidence.

Consideration

46. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:

"25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range 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."

47. The Applicant’s evidence is that he seeks a firearms licence as a primary producer to deal with vermin on his property that are negatively impacting his operations. I find that his reason for a firearm is genuine. However, private interests such are not the only matters considered. The interests of the whole community are matters for consideration: Comalco at 681. As the Tribunal has observed many times, the 'public interest' allows a consideration of issues going beyond the character of the Applicant. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 (Constantin); Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.

48. In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32], Montgomery JM when considering the question of public safety, stated that that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be considered. 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.

47. In this case, the Respondent raises the following as creating a real and appreciable risk to the public:

1. The Applicant's conduct relating to possession of cocaine and his driving record, which indicates a disregard for rules directed to public safety. To this may be added the discovery of “half a joint” as described above which was raised during cross-examination; and

2. the risks arising from the applicant's close association with his parents.

50. First with respect to the factual allegations, I find that the Applicant was an honest, forthright witness whose intention was to assist the Tribunal. He gave evidence that the cocaine that was discovered on 21 December 2021 did not belong to him. That assertion was consistent with the seizure report and the body worn footage which support that the drug was found in the main bedroom belonging to the Applicant’s parents. Given the totality of the evidence, I am unable to draw any adverse inferences because of its discovery as I am not satisfied that it belonged to or was possessed by the Applicant or he otherwise had any knowledge of it prior to the police discovering it at the residence.

51. Additionally, with respect to the Applicant being charged with possessing a prohibited drug in 2020, which occurred some five years ago, I accept the Applicant’s evidence that he regretted his actions, had taken full responsibility, pleaded guilty and has been committed to abstinence since that time supported by the Applicant’s willingness to undertake a drug test. Accordingly, I give this incident little weight in assessing the Applicant’s attitude, as it is currently, towards regulatory regimes designed to protect the public.

52. With respect to the traffic infringements and the discovery of “half a joint” in a drawer which the Applicant described as being from a year earlier, while I accept that an individual’s conduct and compliance with regimes designed to protect the public may be relevant to a consideration of a person’s risk to the public if allowed to possess a firearm, I accept the Respondent’s contention that in this case, the evidence did not rise high enough to draw that conclusion.

53. However, in the context of this case, the conduct of the Applicant’s parents is a highly 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. 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 given the breadth of the discretion and the overriding object of public safety: Tolley v Commissioner of Police [2006] NSWADT 149 at [31] (Tolley).

54. 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; Hamid v Commissioner of Police, New South Wales police Force [2018] NSWCATAD 43; Dalziell v Commissioner of police, NSW Police Force [2018] NSWCATAD 79; El-Chamy PSM v Commissioner of Police, NSW Police Force [2023] NSWCATAD 24.

55. In Tolley, the applicant's son had been charged with supplying commercial quantities of drugs and other offences and was in custody awaiting sentence. The Police concern in that matter was that the son may put pressure on his father to access his firearms.

56. Similarly, and more recently, in Ryan v Commissioner of Police [2021] NSWCATAD 23 (Ryan) the applicant's partner of 8 years had been the subject of a number of Police reports concerning drugs, break and enter, aggravated robbery, assault, consorting, stalk/intimidation, and at the time the applicant's firearms licence was revoked, was subject to a Community Correction Order. In the decision, it was found that there was reasonable cause to believe that the applicant's partner may take advantage of their relationship and therefore the applicant may not personally exercise continuous and responsible control over her firearm. These matters involved a criminal history of the applicants' son/partner, and in both Tolley and Ryan the concern was the potential pressure that might be applied to the applicant in relation to access to firearms.

57. Accordingly, the conduct of the Applicant’s parents and their criminal history is of direct concern to the issuing of a firearms licence.

58. While I accept that the Applicant’s interaction with his parents has reduced because of him acquiring the rural property, the Applicant comes to Sydney two or three times a week, associates with his parents from time to time and stays with his parents at their residence albeit on an irregular basis. According to the Applicant, in 2023, he had stayed with his parents around 15 times. I find that the Applicant has a close relationship with his parents. Given the familial relationship, there is a risk that the Applicant’s parents may seek to influence the Applicant or pressure him to provide them with his firearms if he were permitted a firearms licence. The Applicant’s parents have engaged in criminal conduct which demonstrates a disregard of the law.

59. [NOT FOR PUBLICATION]

60. [NOT FOR PUBLICATION]

61. In this case, I am satisfied that a real and appreciable risk to public safety has been established because of the Applicant’s association with his parents: Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43 and Dalziell v Commissioner of Police, NSW Police Force [2018] NSWCATAD 79.

62. As I have found that there is a risk that the Applicant’s parents may seek to influence the Applicant or pressure him to provide them with his firearms if he were permitted a firearms licence noting that the Applicant’s parents have engaged in criminal conduct which demonstrates a disregard of the law, I further find that these risks cannot be safeguarded by placing conditions on the licence.

63. The information, including that provided in the confidential material, is sufficient, in my view, to establish a real and appreciable risk to public safety. Consequently, I find that, at this time, it is not in the public interest for the Applicant to hold a firearms licence

Orders

64. I affirm the decision.

**********

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: 21 May 2025