Constantin v Commissioner of Police, New South Wales Police Force

[2012] NSWADT 172

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Constantin v Commissioner of Police, NSW Police Force [2012] NSWADT 172
Hearing dates:	5 June 2012 and 2 July 2012
Decision date:	23 August 2012
Jurisdiction:	General Division
Before:	C Huntsman, Judicial member
Decision:	The decision under review is affirmed
Catchwords:	Category H firearms licence; alleged false statements in application for a Queensland licence considered as grounds for decision in respect of NSW licence; alleged reliance on advice of training course provider; serious criminal offences several years ago and significant period of non-offending; whether fit and proper person; whether contrary to public interest
Legislation Cited:	Sections 3, 11 and 16A Firearms Act 1996 NSW
Cases Cited:	Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50; Pobjie v Commissioner for Fair Trading, NSW Office of Fair Trading (No 2) [2008] NSWADT 39 (1 February 2008.); DP v Commissioner of Police, New South Wales Police [2007] NSWADT 27; Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276
Category:	Principal judgment
Parties:	Nicholas Constantin, Applicant Commissioner of Police, Respondent
Representation:	A Brownlee (Applicant, agent) Sparke Helmore Lawyers (Respondent)
File Number(s):	123077

REASONS FOR DECISION

Background

1. The Applicant, Nicholas Constantin, has applied for review of the decision of the Respondent, the Commissioner of Police, to refuse the Applicant's application for a category H firearms licence (genuine reason of sport target shooting).

1. The Applicant was issued with a Probationary Pistol licence on 12 August 2010, to expire on 7 October 2011. On 21 July 2011 the Applicant lodged the application for a Category H firearms licence and the application was refused on 29 November 2011. On 27 February 2012, on internal review, the decision to refuse the application was affirmed. The Applicant currently holds a Class 4A (unarmed guard) and Class 4C (crowd control) Security Licence issued by the New South Wales Police Force Security Industry Registry.

1. The Applicant is employed by Special Protection Services Pty Ltd (SPS) to conduct unarmed security activities, and specific duties include leading a team of "roving" security guards in patrolling the streets within the Kings Cross district, Sydney. The team is commonly known as the "Kings Cross Rapid Response Security Team". The Respondent in the internal review decision notes "that your work within the security industry Kings Cross has been conducted professionally and without incident." The Applicant's wife is the Master Security Licence Holder for SPS and the Applicant is listed as a Close Associate of the Master Licence holder as defined in s5(1) of the Security Industry Act 1997.

1. On 30 May 2011 the Applicant applied to the Queensland Police Service Weapons Licensing Registry (Qld Police) to be issued with a firearms licence for the genuine reason of employment as an armed security guard. The Respondent states that in the application to Qld Police the Applicant failed to declare his past criminal history and gave a false residential address.

1. The Respondent decided that the Applicant was not a fit and proper person to be issued with a firearms licence and also decided that it was against the public interest for the Applicant to be granted the licence. The Respondent refused the application for the Category H firearms licence and the Applicant seeks review of that decision by the Tribunal.

The Respondent's case

1. The Respondent provided evidence at the hearing, and the main issues were also detailed in the internal review decision where the following was noted. On 16 December 1994, following a Crown appeal for inadequacy of sentence, the Applicant received a sentence of imprisonment for 3 years and 9 months for the offence of maliciously inflicting grievous bodily harm with intent; and also received a sentence of 18 months imprisonment with a fixed six-month minimum term for assault. The Applicant's appeal against the severity of the sentence was dismissed by the Court of Criminal Appeal on 2 June 1995. On 12 February 1996 the Applicant was convicted at Sydney District Court on two counts of armed robbery and received a sentence of one year and five months imprisonment for each count. It is noted that these offences cannot be considered spent convictions under relevant legislation. However there have been no convictions for over ten years. The Respondent noted the security licences held by the Applicant, and the period of the probationary category H licence, and the special condition imposed on the licence on 24 March 2011 (which restricted the Applicant's ability to store any firearm in his possession).

1. The Applicant's professional conduct in his current security business (SPS) was acknowledged. The Respondent states that the Applicant has a lengthy association with John Ibrahim, "a well-known organised crime figure based in Kings Cross", and is a business associate "of various other Kings Cross organized crime figures and identities".

1. The Respondent notes that applicable legislation requires persons who wish to gain a licence to undertake armed security work, to apply for and be granted a P1F security licence - which requires work in the industry and supervision of an approved employer for a period of 12 months. The Respondent states this requirement can be circumvented by persons an holding an equivalent licence issued in another Australian State or Territory. The Respondent notes that in Queensland, the equivalent licence, namely a 1F security licence, does not require successful applicants to serve a probationary period of supervised work under an approved employer; the licence allows them to work as an armed guard without supervision. On 30 May 2011 the Applicant applied to the Queensland Police Service Weapons Licensing Registry (Qld Police) to be issued with a firearms licence for the genuine reason of employment as an armed security guard. The Respondent states that in the application to Qld Police the Applicant failed to declare his past criminal history and gave a false residential address. The Respondent also notes a traffic record of 13 instances of exceeding the speed limit. It is stated that the review proceedings relate to the Applicant's wish to possess pistols to participate in recreational activity of target shooting (i.e. not any licence for armed security guard work).

1. The Respondent refused the application for the licence on two main grounds: that the Applicant is not a fit and proper person to be granted the licence and that it is contrary to the public interest for the licence to be issued. The Respondent was also not satisfied that there is virtually no risk if the Applicant was authorised to possess pistols. The Respondent acknowledges that the Applicant held a probationary pistol licence without incident, and that his work as an unarmed security guard with SPS within the Kings Cross district provides positive weight to the determination. However, the Respondent placed more weight on other considerations.

1. The evidence of the Respondent at the hearing included the documents provided by the Respondent under section 58 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) being a bound volume of documents; further material filed with the Tribunal on 25 May 2012 (primarily relating to the Applicant's past criminal convictions); documents relating to a licence application by a witness in the proceedings, Mr Taggart (exhibit R4); and a statement by Mr Barry who also gave oral evidence at the hearing. The Respondent made detailed oral submissions.

The Applicant's case

1. The Applicant provided written material being a reply to the brief of evidence, with annexures including a reference of 16 May 2012 from the Chief Executive Officer, Kings Cross Licensing Accord Association Incorporated; and a statement from a witness, Mr Taggart, who also gave oral evidence at the hearing, as did a witness, Mr Paul Green. The Applicant also provided oral evidence.

1. In summary, the Applicant's case is that he relied on the advice of a registered training officer conducting the training course in completing his application for the Queensland licence (this was Mr Barry). He incorrectly completed the application forms for the Queensland licence in reliance on Mr Barry's advice and did not intend to provide false information. He stated he knew that a criminal history check would be undertaken, and that his criminal history would be disclosed. He also indicated that he did not intend to mislead in relation to his residential address and gave further evidence about this matter, as detailed below in these Reasons for Decision. He gave evidence of his continuing intention to be a law abiding security officer in his current employment. He also gave evidence about whether he was an associate of organised crime identities.

The Law

Relevant Legislation

1. The general principles of the Act are set out in section 3:

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.

1. The Act provides restrictions on the issue of licences (s11):

11 General restrictions on issue of licences

(cf 1989 Act s 25, APMC 4, 5, 6)

(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

(2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made.

(2A) Subsection (2) does not apply if the application is for the renewal of a licence (including the renewal of a category A or B licence that involves the addition of either of those licence categories to the previous licence).

(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

(b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and

(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and

(d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.

(3A) Despite subsection (3) (b), the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned.

(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

(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or

(c) the applicant's intemperate habits or being of unsound mind.

(5) A licence must not be issued to a person who:

(a) is under the age of 18, or

(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

(c) is subject to an apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to such an order (other than an order that has been revoked), or

(d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations, or

(e) is subject to a firearms prohibition order.

(5A) A licence must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that:

(a) the person is a risk to public safety, and

(b) the issuing of the licence would be contrary to the public interest.

(5B) The Commissioner is not, under this or any other Act or law, required to give any reasons for not issuing a licence on the grounds referred to in subsection (5A).

(6) Except in the case of a firearms dealer licence or where the applicant's genuine reason is business or employment, a licence must not be issued to a person who is not a natural person.

(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.

(8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence

1. The Respondent refused the application pursuant to section 11(3)(a) and (7) of the Act, finding that the Applicant is not a fit and proper person to be issued with the licence and that it would be contrary to the public interest to issue the licence.

1. The Applicant previously held a probationary licence and participated in firearms safety training courses. Section 16A of the Act provides for probationary pistol licences:

16A Probationary pistol licences

(1) A category H (sport/target shooting) licence that is issued to a person who has never held such a licence is to be issued as a probationary pistol licence.

(2) A probationary pistol licence is subject to the following conditions:

(a) for the first 6 months of the term of the licence, the licensee must not possess or use a pistol except:

(i) while on the premises of a pistol shooting club and under the supervision of a person who is the holder of a category H (sport/target shooting) licence that is not a probationary pistol licence, and

(ii) in connection with the requirement referred to in paragraph (b),

(b) the licensee must, by the end of that 6-month period, have completed to the satisfaction of the Commissioner a firearm training and safety training course conducted by the pistol shooting club of which the licensee is a member.

(3) If:

(a) the holder of a probationary pistol licence applies for a category H (sport/target shooting) licence before the term of the probationary pistol licence expires, and

(b) the application has not been dealt with by the time the probationary pistol licence expires,

the authority conferred by the probationary pistol licence continues until such time as the person is notified of the issue of, or refusal of, the category H (sport/target shooting) licence.

(4) This section does not limit the conditions to which a probationary pistol licence is subject.

1. With limited exceptions, section 75(1)(c) of the Act provides a person may apply to the Tribunal for a review of the decision to revoke a licence.

1. Section 63 of the Administrative Decision Tribunal Act 1997 (the ADT 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 in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Commissioner, 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.

1. A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.

1. Section 63(3) of the Tribunal Act provides that 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.

1. In relation to spent convictions the Criminal Records Act 1991 (NSW) provides that some convictions are capable of being spent. Sections 8 and 9 of the Criminal Records Act 1991 (the CR Act) provides that a conviction is spent on expiration of the relevant crime free period and provides that this period is 10 years in respect of most convictions. The CR Act provides for non- declaration of spent convictions in certain circumstances. However, s 7 of the CR Act provides that not all convictions are capable of becoming spent:

7 Which convictions are capable of becoming spent?

(1) All convictions are capable of becoming spent in accordance with this Act, except the following:

(a) convictions for which a prison sentence of more than 6 months has been imposed,

(b) convictions for sexual offences,

(c) convictions imposed against bodies corporate,

(d) convictions prescribed by the regulations.

(2) A conviction may become spent in accordance with this Act whether it is a conviction for an offence against a law of New South Wales or a conviction for an offence against any other law.

(3) A conviction may become spent in accordance with this Act whether it is a conviction imposed before, on or after the date of commencement of this section.

(4) In this section:

prison sentence does not include a sentence the subject of an intensive correction order or the detaining of a person under a control order.

sexual offences means the following offences.............

1. The evidence indicates that the Applicant received sentences of imprisonment for periods longer that 6 months for the offences and accordingly the convictions are not capable of being spent under the CR Act.

The evidence at the hearing

1. The following matters are not in dispute in these proceedings:

• the Applicant's criminal history;
• the Applicant has had no criminal charges or offences committed within 10 years preceding his application for firearms licences;
• the Applicant has conducted himself in the industry in the Kings Cross region with professionalism;
• the Applicant was issued with a probationary pistol licence and there were no incidents with this licence;
• a restriction was placed on this licence that firearms had to be left at the pistol range and were not to be taken home by the Applicant;
• the Applicant stated on the Queensland application that he had no criminal history (the Applicant's actual answers to the actual question on the application form are detailed further below);
• the Applicant stated on the Queensland application form that his current residential address was a friend's address in Cairns and that his "previous address" was his current New South Wales address.

1. What is in dispute is the conclusions which should be drawn from the Applicant's answers on the Queensland application form. In relation to this issue considerable evidence was given at the hearing by both the Applicant, the witness Mr Taggart, and the witness Mr Barry, about instructions given during a training course conducted in Sydney, for the purpose of obtaining the Queensland licence. The training course was conducted by Mr Barry.

1. Mr Barry states that he is the Chief Executive officer of Law Enforcement and Security Training Australia Pty Ltd. The Applicant undertook a course of training, with Mr Barry, in firearms and body guard requirements for security licences. The course was for three weeks and was completed in October 2010. Mr Barry said he was told by the Applicant that he wanted to open a security business in Queensland and was undertaking the bodyguard and firearm training in NSW to acquire his armed security guard licence (1F) in Qld. Mr Barry recalls telling the Applicant that once he completed the security course, he could apply for a Queensland full class 1F (armed security guard) licence. Mr Barry also told the Applicant that he could apply for armed security work in Queensland if he did obtain a class 1F licence. Mr Barry states he told the Applicant that he had to be a resident of Queensland before he could make an application for a Qld firearms licence, not for a security licence, and the Applicant appeared to understand that he had to be a resident of Queensland to obtain the Queensland firearms licence. Mr Barry stated that he told the Applicant that he would have to travel to Queensland to lodge the application forms for the firearms licence, as they have to be lodged in person at the Office of Fair Trading and at the Police station where his business would be based. Mr Barry did tell the Applicant that once he had obtained the Queensland licence he could apply through mutual recognition laws for a New South Wales licence. Mr Barry states that his company is aware of other security training operators based in Queensland, the ACT and Victoria that have used mutual recognition laws to apply for New South Wales equivalent licences in such a way. Mr Barry states that he suggested the Applicant contact Mr Barry's Queensland office, at their Queensland address, so they could provide him with any local assistance. Mr Barry notes that his Queensland office is also authorised to conduct Queensland firearms training and certification for police issued security guard firearms licences.

1. Mr Barry states that the legal representatives of the Respondent provided him with documents including a two-page extract of evidence of the Applicant for the proceedings. He notes the Applicant's assertion that he asked Mr Barry whether he was required to provide his New South Wales criminal history when he completed the Queensland application. Mr Barry states he was never asked this question by the Applicant and never discussed with him whether he should disclose his criminal history. Mr Barry states he was not privy to the Applicant's criminal history, noting the Applicant held New South Wales personal firearms and security licences. He states he had no reason to believe the Applicant had a criminal history. He further states he would never have answered that the Applicant or any other person should lie about their criminal history or any other matter on any licence application. "This suggestion is quite ridiculous." Mr Barry further states he never saw the Queensland application form the Applicant was completing, nor is he familiar with the application form or with the question that seeks disclosure of the person's criminal history. The issue of Mr Barry's advice to the Applicant was the subject of considerable evidence in the proceedings and Mr Barry was cross-examined in relation to this part of his evidence.

1. In his oral evidence Mr Barry stated that he had been sent, by the Respondent's legal representatives, the material relating to the witness Mr Taggart. He is not sure if Mr Taggart was in the same classes the Applicant but believed he may have been. When asked if he recalled advice given to Mr Taggart, Mr Barry said the advice was that they would have to contact the Queensland authorities to get the correct paperwork. When asked whether he told the class not to declare their criminal record, Mr Barry stated that he advises people when they ask about their driving or traffic records that these don't generally need to be disclosed unless there were serious traffic offences. This is his standard advice.

1. Under cross-examination Mr Barry was asked whether he knew Paul Green. In particular he was asked whether he recalled meeting the Applicant in the company of Mr Green. It was put to Mr Barry that he had met the Applicant in the company of Mr Green, and that subsequently, Mr Barry had asked Mr Green "do you know about the Nick's past". Mr Barry did not recall this conversation.

1. Mr Barry was asked about his understanding of mutual recognition laws. He stated that the benefit was that mutual recognition allowed people to work in both States, and this was particularly the case with people with businesses located on the border. It was put to Mr Barry that the benefit was that when successful in obtaining a Queensland licence, a full New South Wales licence could be obtained under mutual recognition, obviating the need to possess a New South Wales probationary licence. Mr Barry conceded that this may be a benefit.

1. When asked whether he had handed each student in his course a Queensland licence application form, Mr Barry stated that he may have downloaded some information in response to questions by students, as his usual practice is that if he cannot answer a question he will go to the Internet and download information. It was put to Mr Barry that he handed the Queensland application form to Mr Taggart and a number of other students in the class. He did not recall doing so and maintained that if he had done so it would have been through providing students information downloaded from the Internet.

1. Mr Paul Green gave evidence to the Tribunal. He stated that he was a member of the Pistol Club and worked at the pistol range as a trainer. He introduces new members to the club and provides training by conducting the firearm safety course. He would take the new member onto the range and then take them to Mr Barry to do the paperwork which is required. Mr Green indicated that he has known the Applicant for a long time, they have been friends a long time. When discussing recreational shooting at the range the Applicant had told him he'd love to go. He did a firearms safety course and undertook some shooting at the range. He was deemed safe with a firearm. He became a member of the Club and was free to come and go and use the pistol range. He noted that Mr Barry had met the Applicant in his company on two or three occasions. Mr Green stated that that on the third occasion Mr Barry asked him if he knew about Nick's background and Mr Green recalled he was a "bit defensive" at the time, on behalf of the Applicant, indicating to Mr Barry that Nick's past was a long time ago and he was now a family man.

1. Mr Taggart stated he met the Applicant while doing the course with Mr Barry. Mr Taggart needed to obtain a number of certificates and so undertook the course. Mr Taggart stated it was a course done for Queensland, on Queensland security law. Mr Taggart stated that in his application for a Queensland licence he answered "no" to the criminal history question because he had been so advised by Mr Barry. He maintained that on the last day of the course the students were all given the paperwork by Mr Barry and were coached to complete the paperwork. He says that the Applicant said to Mr Barry "you know about my criminal history, what do I put?" and that Mr Barry replied "you are doing this course for Queensland, only put convictions in Queensland". Mr Taggart stated that Mr Barry advised them that to obtain a Queensland security licence they needed to be a resident of Queensland so he put his sister's address on the form. He agreed under cross-examination that Mr Barry made it quite clear to the class that an applicant for the Queensland licence needed to reside in Queensland. Under cross-examination Mr Taggart agreed that he knew that what he put on the form was not true and correct. It was put to Mr Taggart that he was blindly following what Mr Barry told him to do and he responded that it might seem to be the case, however Mr Barry was a registered training officer and so Mr Taggart was under the impression that what he said was true. He said he blindly followed what Mr Barry told him because Mr Barry said it was correct. The result of Mr Taggart making the statements in his application for the Queensland licence was that he lost all his firearm licences in New South Wales and his security licenses. He wrote a detailed statement to the Firearms Registry. He accepted some personal responsibility for what he stated on the forms. He has since been issued with his NSW licenses again.

1. The Applicant told the Tribunal that he had known Paul Green for some years and at the time of the training course Mr Green was an instructor at the pistol range, that is, he worked at Mr Barry's range as an instructor. Paul Green knows of the Applicant's background and invited the Applicant to come to the range. The Applicant states he told Mr Green "you know my history" however, he attended the range. He was issued with a probationary recreational pistol license and has complied with the terms of the license, including the imposed special condition that he leaves his pistol at the range, and does not take it home. The Applicant stated that a business opportunity to own a security business in Queensland was discussed with him by business associates. He wants to work with an armed security company and they had indicated to him that if he opened a company in Queensland they would give him their Queensland work.

1. The Applicant then undertook the training course with Mr Barry. He maintains that he filled out application forms whilst at Mr Barry's course for the Queensland licence. He states that students in the class filled in the forms as a group under Mr Barry's direction. In relation to the question on the form he understood that he needed a Queensland address, as advised by Mr Barry. He stated he put down the address of his friend, who lives in Cairns, as his residential address, and also put down his New South Wales address as his previous address. The Applicant maintains that while in Mr Barry's class he asked Mr Barry about his criminal record and was told to only put down any Queensland convictions.

1. The Applicant stated that he filled in the actual application form, which was submitted to Queensland police, whilst in Queensland. He took the forms with him which he had completed in Mr Barry's class, but was told they were out of date, and was given new forms by the Queensland authorities. It was the new forms given to him in Queensland, which the Applicant completed in Queensland, which were submitted for the application for the Queensland licence.

1. The Applicant states that when he went to Queensland to lodge the application forms he went Department of Fair Trading and received some advice about his residential address. He says he told the person at the Department of Fair Trading that he was not yet residing in Queensland but was intending to set up a business and to reside in Queensland. When he went to the police station at Southport he says he discussed with the lady behind the counter the requirements for completing the application form in relation to his address in Queensland and she told him to put 0/0 on the application form for the months/years he had resided in Queensland. He indicates the application form shows he was telling the truth by writing "0/0" on the form he was indicating that he had resided in Queensland for zero months and zero years. He was cross-examined about why he had put his New South Wales address, which was in fact his current address, in answer to a question "previous address" and he explained that he there was no other place on the form where he could put his address for the purpose of receiving mail. It was put to him that in answering this question he had tried to pretend, or represent, that he'd left the New South Wales address, by indicating it was the previous address, and the Applicant disagreed.

1. Under cross-examination the Applicant was asked detailed questions about his answers to the questions on the application form.

1. It is useful for the tribunal to reproduce the questions on the application form, given the centrality of this issue in the current proceedings.

• Question 3 of the application for a licence form, (Form 1, Queensland), is entitled "Contact details". At the top of this section of the form the words are written "You must be a permanent resident of Queensland and provide proof of Qld residency..." The Applicant provided as his "current address" a Queensland address (an address which he told the Tribunal was a friend's address, and not a current residential address of the Applicant).
• In an answer to the question "how long have you lived at this address?" he answered "0 years, 0 months".
• Section 3 of the form required a postal address and the applicant placed a New South Wales street address, which was in fact his then current residential address. The form required "previous address (if at current address for less than five years)" and the applicant put the same New South Wales street address as was given in the "postal address" section.
• At question 5 of the form the following questions are asked:
• "Have you in Queensland or elsewhere ever been charged with an offence?" The applicant and said "no" to this question .
• Question 5 (e) asks "have you ever been charged and/or convicted of one of the following?... An offence involving the use or threatened use of violence?" The applicant answered "no" to this question.
• On the application form, at question 10, the applicant is required to provide his weapons licence history and provides his licence number for the NSW probationary pistol license and date of issue.
• At question 11 there is a certification required and it is stated the section must be completed in front of a designated member of the Queensland Police Service. The certification on the form states "I certify that the information I have given is true and correct in every detail...". This certification is signed by the Applicant and dated 25 May 2011.

1. The Applicant stated that he provided payment at the time for a criminal record check, and he would not intentionally provide a false answer as his criminal record would be disclosed by the check. In relation to following Mr Barry's advice he stated that the instructor has the right to teach and to therefore to tell students what to do. Under cross-examination he agreed he could read, and could read the document, and he stated "I know it's not correct" however his explanation was that he said "no" because he has not ever been charged in Queensland. It was put to him that he knew it was not correct in every sense and he responded that he knew it was not correct because he was told to put that answer. When it was put to him that he tried to obtain the licence in Queensland because he wanted to access the mutual recognition laws so as to be able to start operating in New South Wales he responded "everyone's doing it". He also stated that he did have the intention to run a security business in Queensland and sought a licence there for that purpose. He maintained that he followed Mr Barry's advice and he also maintained that in respect of his New South Wales convictions, they are over 10 years ago, and so he does not have to declare them (he was of the view they were spent convictions).

1. It was put to the Applicant that he had signed the certification on the application form that the information he had provided was true and correct in every detail and he agreed. He also agreed that he was also trying to obtain an armed security guard licence, he was seeking both licenses. He wanted to work for CHUBB and to take up their offer to work in Queensland. He noted that he was waiting for his application to be processed in New South Wales, and he applied in the meantime to Queensland because he wished to work in Queensland. He noted the application in New South Wales was for a provisional licence where he would have to be supervised for 12 months and this license would not be able to be mutually recognised in Queensland for the purposes of working in Queensland.

1. In relation to the current matter the Applicant stated that he had served the probationary period on his probationary pistol licence and sought to apply for renewal. He agreed that at some time he would like to be licensed as an armed security guard and would require a pistol if given permission. However the purpose of the application for the category H licence was that he wishes to continue with recreational shooting, he enjoys going to the shooting range, and noted that he had complied with the special condition that he not possess a firearm off the range. He stated that if the Tribunal wished to include such a special condition on his category H licence he would accept such a condition and comply with it.

1. In relation to his security business in the Kings Cross the Applicant noted that there were lots of problems in Kings Cross, problems with gangs and bikies. Because the Applicant knows some of the people involved in the gangs, and the bikies, then businesses in Kings Cross which sought to maintain peaceful behaviour would call the Applicant to assist. This is the service that the business provides. They are a roving patrol and will be called if there are any issues where a business needs assistance. He noted that the setting up of the business had been discussed with police and other authorities and that he has to work with the police, the heads of businesses, and security companies in Kings Cross. Initially his business commenced as a three-month trial and has now been in existence for two years. Over this period of time he has been called on many occasions and a number of problems have been sorted out with the help of the police. He works closely with the Kings Cross police in this role. The Applicant stated that people think it's all about the gangs and bikies but it's all about alcohol. His company is employed by proprietors of a number of businesses in the Kings Cross area, in particular a number of the nightclubs. It was put to the Applicant that some of the Clubs are operated by well-known colourful identities, for example, John Ibrahim. The Applicant stated that John Ibrahim has been a friend of his for over 27 years, they have a business relationship and a friendship. He did agree with a description of Mr Ibrahim as "underworld figure" but noted that Mr Ibrahim had not been convicted of any criminal offence. The Applicant was asked some questions about the COPS events records, which are contained in the Respondent's documents. He stated that these records were not exactly accurate and observed that he will be recorded in COPS events, because he is present at incidents as part of his role of trying to keep the peace as part of the roving patrol.

Discussion of evidence, consideration of the law, and findings

1. The Tribunal finds that when he applied for the Queensland licence the Applicant answered questions on the form incorrectly. He also signed a certification that the answers on the form were true and correct.

1. The Tribunal is required in this matter to make findings in relation to the evidence of witnesses who gave differing accounts. The Applicant, and Mr Taggart, both gave evidence that Mr Barry help them fill out the application forms for the Queensland licence and, in essence, told them to put incorrect responses on the forms in relation to criminal history and residential address. Mr Barry denies this, as detailed above.

1. Mr Green gave evidence that he had introduced the Applicant to Mr Barry on more than one occasion prior to the Applicant undertaking the course with Mr Barry, and that Mr Barry had discussed the Applicant's past with Mr Green. Mr Barry did not acknowledge that such a discussion had occurred. The Tribunal found Mr Green to be straightforward in his evidence and had no basis for rejecting his evidence. In relation to the evidence of Mr Taggart and the Applicant, their evidence was consistent with each other as to what occurred. However, the Tribunal notes that Mr Taggart and the Applicant both have an incentive to place blame on Mr Barry as it provides an excuse/explanation for their incorrect statements on the Queensland application forms. There is motivation for making Mr Barry accountable, given the wish of both Mr Taggart and the Applicant to retain/obtain their NSW Firearms licences. Mr Taggart has had his licenses re-instated.

1. The Tribunal was not impressed by the reliability of the evidence of Mr Barry as the Tribunal finds it implausible on the evidence overall that Mr Barry would not have known of the Applicant's criminal history, given the Applicant was a Member of the Club where Mr Barry conducted his courses, and given Mr Green's evidence about their conversation to this effect.

1. Whilst the Tribunal has some concerns as to the reliability of Mr Barry's evidence for the reasons stated above, the Tribunal was unable to completely accept the evidence of the Applicant and Mr Taggart, given the existence of a motivation to protect their own positions. The Tribunal was unable to prefer the evidence of the Applicant and Mr Taggart, over the evidence of Mr Barry. However, the Tribunal in determining this matter has not been required to determine whether Mr Barry directed the Applicant and Mr Taggart to complete the forms in the way that they did. For the purposes of making findings in this matter the Tribunal is prepared to accept that this may have occurred.

1. Even if the Tribunal accepts that the Applicant filled in the application form, in the class, under Mr Barry's direction, and so placed incorrect answers on the application form, the Tribunal does not consider that this removes the Applicant's responsibility for the answers on the form. The wording of the form is unambiguous and the Tribunal is satisfied that the Applicant knew the meaning of the words "previous address" " current address" and "Have you in Queensland or elsewhere ever been charged with an offence". Further, the Applicant answered "no" to the question "Have you ever been charged and or convicted of one of the following..... an offence involving the use or threatened use of violence?" This question is a clear unambiguous question, and the Applicant, on the evidence, clearly has been convicted of a serious offence involving violence. The Tribunal finds that the Applicant provided false answers to the questions on the form about his criminal history - by answering that he had not ever been charged in Queensland or elsewhere with an offence, and that he had not ever been charged or convicted of an offence involving violence. The Tribunal is satisfied on the evidence that when answering these questions the Applicant knew that his answers were not correct. In the Tribunal's view such incorrect answers are not excused by maintaining that the answers were under the instruction of a training officer. There was no duress involved, and Mr Barry was not the Applicant's employer or in any similar position of authority in relation to the Applicant, although he was a registered trainer. It is relevant in the Tribunal's view that the application forms which the Applicant ultimately submitted were completed by the Applicant in Queensland and were not the forms which he says he previously completed with Mr Barry in the class. The Applicant thereby revisited his answers on the application form by completing the forms a second time. However he again chose to incorrectly answer the form.

1. Further, the applicant had opportunity to ask questions of the Queensland authorities about his answers on the form, and such opportunity was readily available to him at the time of submitting the form. The Tribunal accepts the Applicant did seek direction about the residential question and for this reason answered, in relation to the length of time that he had lived in Queensland, "0 years and 0 months", thereby indicating that he had not resided in Queensland for a period of time prior to the application. There is no evidence that he sought advice at that time about declaring his criminal history. The Tribunal notes that in relation to "previous address" the form requires the previous address where the applicant for the licence has been at their current address for less than 5 years, and the Applicant had clearly indicated less that 5 years by answering "0/0" for the time he has resided at his current address. However, the Tribunal finds that the Applicant provided false/incorrect information as to his current address, as he was not residing at the Queensland address which he supplied.

1. The Tribunal is satisfied, on the evidence in this matter, that the Applicant knowingly and/or recklessly provided incorrect or false answers on the application form.

1. The Tribunal notes the Applicant's criminal history contains convictions for very serious criminal offences, including offences involving violence, and that this is acknowledged by the Applicant. However the offences occurred several years ago, there have been no recent offences, and the Tribunal accepts, on currently available evidence, that the Applicant has established himself as acting responsibly in the community as an unarmed security officer in his roving patrols. The Tribunal had no basis to reject the Applicant's evidence that he wished to further his career in the area of security work, including armed security work. Whilst some concerns must attached to the Applicant's prior criminal history, the Tribunal also gives weight to the length of time since the commission of those serious offences, the period where no offences have been committed, and recent responsible conduct in his work with SPS. Weighing these various considerations, and considering the evidence in this particular case, the Tribunal would not be satisfied on the Applicant's criminal history alone, that the Applicant is not a fit and proper person. This is because of the length of time since the offences were committed, and the long period of non-offending, and the recent period of responsible work in his current occupation.

1. In considering whether the Applicant is a fit and proper person I have considered the summary of authorities set out by the Tribunal in the decision of Pobjie v Commissioner for Fair Trading, NSW Office of Fair Trading (No 2) [2008] NSWADT 39 (1 February 2008.) It is useful to set out the guidance provided by that review:

Fitness and Propriety

113 The Law - Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good repute.

114 In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Chief Justice Mason explained that, at 380:

"The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."

Toohey and Gaudron JJ said at 380:

"The expression "fit and proper person", standing alone, carries no precise meaning. It 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. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."

115 A person's fitness is to be gauged in the light the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7):

"The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty , knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

116 In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said:

"In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."

117 Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. What fit and proper means must be viewed in the light of, "... the activities in which the person is or will be engaged": Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280, at 290. What is fit and proper will depend on the legislative context and the nature of the particular profession, trade or occupation in question: Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794, at 796 paragraph [41]. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licensed building contractor should have his application for a new licence refused because, despite there being no evidence that he was dishonest or of bad repute, evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case, as here, the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the Applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth).

118 The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection."

1. In considering whether the Applicant is a fit and proper person, the authorities, set out above, indicate that I should consider whether the Applicant's honesty, integrity and rectitude of character permit him to be safely accredited to the public. The licence in question is relevant: a firearms licence that is a privilege, not a right, and where public safety is a paramount consideration. I must be satisfied that the evidence indicates that the Applicant would have honesty, integrity and rectitude of character as a firearms licence holder - it is difficult for me to be satisfied of this when the Applicant has made false statements on a licence application in Queensland. Even if I was to accept that the Applicant was told how to fill out the form in class, he was also required to revisit the forms, and his answers on the forms, in Queensland when he completed the new forms printed out for him. On the evidence I am satisfied that he did understand that he was incorrectly answering the questions relating to his criminal history and his current address. If I was to accept the Applicant's evidence that the statements were not made with intention to mislead, I find the statements were nevertheless made without care as to the requirement for correct answers. Such lack of care and lack of taking personal responsibility for the strict requirement for disclosure is of concern to me and I cannot be satisfied of the Applicant's honesty, integrity and rectitude of character. Accordingly I cannot be satisfied that he is a fit and proper person for the purposes of the issue of a firearms licence.

1. The Respondent submitted that it would not be in the public interest for the Applicant to be granted a licence. I concur with the view of Deputy President Hennessy in Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23] that the discretion to revoke a licence should be exercised in a way that promotes the responsible use of firearms; and I consider that decisions refusing a licence application should also be consistent with these principles. I concur also with the approach of the Tribunal in DP v Commissioner of Police, New South Wales Police [2007] NSWADT 27:

I refer not only to the overriding public interest in protecting the public safety, but also to the public interest in ensuring that licence holders have an understanding of their obligations, and the maturity to follow them, as well as the public interest in ensuring the maintenance of a credible and consistent licensing regime, which ensures that the possession of a firearms licence is privilege in accordance with the principles and objects of the FA Act. Those concerns are sufficient to justify the revocation of his firearms licence on public interest grounds.

1. A discussion of relevant case law was set out by the Tribunal in the case of Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276:

69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681:

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

70 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at paragraph [25], the Appeal Panel said that the 'public interest' "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".

71 There is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions and I agree that it is the correct approach to be taken in this matter.

72 In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy President Hennessy stated at paragraph [25]

25 As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. ...

73 A firearm licence is a privilege and not a right. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at paragraph [25].

74 The underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk".

1. What is of concern to the Tribunal are the false statements on the Queensland application form. A Firearms licence, category H, entitles the Applicant to possess a pistol for recreational use. The Act makes clear that the licence is a privilege with the overriding concern being maintenance of public safety. Compliance with the Act and Regulation, and a demonstrated capacity and maturity to comply with the legislative scheme, is essential to firearm safety. The Tribunal is concerned that a willingness to give false answers on an application for a firearms licence, or recklessness/lack of care in relation to whether the answers are true and correct, indicates a lack of capacity/commitment to properly consider, observe and respect firearms legislation.

1. The Tribunal finds that it would contrary to the public interest for the Applicant to be licensed given that he did not seriously and honestly comply with the obligation under the Queensland legislation to provide all information required, with honesty and candour, to police/firearms regulatory authorities. The Tribunal finds that the combination of the Applicant's serious criminal history, although some years ago, for offences of violence, with the lack of commitment to meeting the requirements under firearms legislation, as demonstrated by a willingness to provide false details, or lack of care to ensure correct details are provided, in answers in an application for a firearms licence in Queensland, indicates that it would be contrary to the public interest, in ensuring public safety, for a firearms licence to be issued to the Applicant.

1. In so finding the Tribunal observes that the Applicant should receive some acknowledgment for his long period of non-offending and his recent responsible performance of his security work. However, at the current time, given the recent false statements in the Queensland licence application, the Tribunal considers that it is contrary to the public interest for the Applicant to be issued a firearms licence and accordingly the Tribunal affirms the decision under review.

**********

Decision last updated: 23 August 2012