Davos v Commissioner of Police, New South Wales Police Force
[2013] NSWADT 7
•11 January 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Davos v Commissioner of Police, NSW Police Force [2013] NSWADT 7 Hearing dates: 15,16 May 2012; 17 July 2012 Decision date: 11 January 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: 1. In matter No. 113050 the decision under review is affirmed
2. In matter No. 113259 the decision under review is affirmed
Catchwords: Security Industry Act - Security industry licence - revocation or suspension of licence - Firearms Act - Firearms licence - revocation or suspension of licence Legislation Cited: Administrative Decisions Tribunal Act 1997
Firearms Act 1996
Security industry Act 1997
Firearms Regulation 2006
Security Industry Regulation 2007Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Avilion Group Pty Ltd v Commissioner of Police, NSW Police [2010] NSWADT 129
AVS Group Australia Pty Limited v Commissioner of Police, NSW Police Force [2012] NSWADT 1
Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88
Haining v Commissioner of Police [1999] NSWADT 6
O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130
Re Repatriation Commission and McCartney (1986) 9 ALD 441
Turner v minister for Immigration and Ethnic Affairs (1981) 35 ALR 388Category: Principal judgment Parties: Anastasios Davos (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: Counsel
J Sheller (Applicant)
I Bourke (Respondent)
Law Corporation Pty Ltd (Applicant)
Crown Solicitors Office (Respondent)
File Number(s): 113050; 113259 Publication restriction: [not for publication]. Those paragraphs are not to be released to either the Applicant or to the public
REasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): These reasons relate to two applications brought by Mr Anastasios Davos ("the Applicant"). The matters were heard together and evidence in one was regarded as evidence in the other.
Matter No. 113050
This application concerns a determination by the Respondent to revoke licences held under the Security Industry Act 1997 ("the Security Industry Act").
The Applicant was issued with a Class 1AC security licence under the Security Industry Act on 30 June 2010. On 15 December 2007, Labourforce Group Pty Ltd ("the corporation") was issued with a Master security licence and the Applicant is the Nominated Person for that licence.
On 2 December 2010 the Applicant was charged with "Possess unauthorised prohibited firearm". The Applicant served an 18 day period of detention and was then subject to bail obligations until the charges were subsequently withdrawn in June 2011.
On 6 December 2010, the decision was made to revoke the security licences as it was considered that the Applicant is not a fit and proper person in the context of the Security Industry Act and it would not be in the public interest for him to continue to hold a security licence.
That determination was affirmed on internal review.
Matter No.113259
This application concerns a determination by the Respondent to revoke the Category ABGH firearms licence held by the Applicant under the Firearms Act 1996 ("the Firearms Act").
On 3 October 2008 the Applicant was issued a Probationary Pistol Licence and a Category AB firearms licence for the genuine reasons of Recreational Hunting Vermin Control and Target Shooting. On 4 December 2009 the Applicant was issued with a Category H firearms licence for the genuine reason of Target Shooting and on 30 June 2010 the Applicant was issued with a Category G firearms licence for the genuine reason of Collecting.
On 18 August 2011 the decision was made to revoke the licence as it was considered that the Applicant was not a fit and proper person to continue to hold a firearms licence.
The Applicant applied to the Tribunal for review of that determination even though he had not applied for an internal review. Pursuant to section 55(3)(b) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") the decision was taken to deal with the matter in the absence of an internal review.
Applicable legislation
Section 63 of the ADT Act says 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 constrained to have regard only to 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) 46 FLR 409; Re Repatriation Commission and McCartney (1986) 9 ALD 441 at 449; Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 390
Section 7(1) of the Firearms Act prescribes that a person must not possess or use a prohibited firearm or pistol unless the person is authorised to do so by a licence or permit.
Section 24(2)(b)(ii) of the Firearms Act prescribes that a licence may be revoked if the licensee contravenes any provision of the Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention.
Section 24(2)(c) of the Firearms Act prescribes that a licence may be revoked if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence.
Section 24(2)(d) of the Firearms Act prescribes that a licence may be revoked for any other reason prescribed by the regulations.
In this regard, clause 19 of the Firearms Regulation 2006 ("the Firearms Regulation") prescribes that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
Section 26(1A) of the Security Industry Act provides that the Commissioner must revoke a licence where he is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused.
Section 15(1)(a) of the Security Industry Act requires that the Commissioner must refuse to grant an application for a licence if he is satisfied that the applicant is not a fit and proper person to hold the class of licence sought by the applicant.
Section 15(6) of the Security Industry Act provides that for the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that:
(a) is relevant to the activities carried out under the class of licence sought by the applicant, or
(b)causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or
(c)causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence.
Section 15(7) of the Security Industry Act states that the Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6).
Section 29(3) of the Security Industry Act states that in determining an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person, the Tribunal:
(a)is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15(6) without the approval of the Commissioner, and (b)in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for review, the applicant's representative and any other interested party, unless the Commissioner approves otherwise.
Clause 29 of the Security Industry Regulation 2007 ("the Security Regulation") provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it.
I considered the issue of the construction of subsections 15(6) and 29(3) of the Security Industry Act in some detail in my reasons for decision in AVS Group Australia Pty Limited v Commissioner of Police, NSW Police Force [2012] NSWADT 1. I will not restate here the views that I expressed in that decision. However, I note that the reference to "receive evidence and hear argument" in section 29(3)(b) contemplates the Tribunal will conduct a hearing in which the Commissioner will seek to sustain the revocation.
Section 75(1) of the ADT Act provides that proceedings of the Tribunal are to be conducted in public, but sub-section (2) then makes provision in relation to closed hearings and the Tribunal's powers to restrict the disclosure, and publication, of evidence and materials before it. It provides:
(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:
(a) an order that the hearing be conducted wholly or partly in private,
(b) an order prohibiting or restricting:
(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or
(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,
(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,
(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,
(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
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In these proceedings, material was presented in both open and confidential hearings. Having satisfied myself that it was desirable to do so by reason of the confidential nature of the evidence and the Commissioner's submissions concerning that evidence, I have made the requisite orders prohibiting the disclosure of the confidential material to the Applicant.
The reasons for the decisions to revoke the licences
Underlying each of the decisions was the fact that the Applicant was charged with "Possess unauthorised prohibited firearm". The charge related to a Mossberg 500 shotgun ("the Mossberg 500"). The Respondent also considered the Applicant's alleged association with high-ranking members of the Comanchero Outlaw Motorcycle Gang ("OMCG").
The reasons for decision in relation to the revocation of the Applicant's firearms licence provide a reasonable summary of the background to the determinations. Those reasons stated:
On 13 August 2010 [the Applicant] completed an application for a Permit to Acquire a firearm. This application requested permission to acquire a Category C firearm, specifically a pump action shotgun with a magazine capacity of less than 5 rounds, under [the Applicant's] collectors licence. This application was received [by the Respondent] on 17 August 2010 and was issued on 26 August 2010.
On 27 August 2010 [the Applicant] purchased a Mossberg 500 shotgun, serial number: 3681848 from Safari Firearms. Recorded data for this firearm revealed it to be a Category C firearm with a magazine capacity of 5 rounds. Police obtained a statement from Safari Firearms which confirmed that the firearm had a magazine capacity of 5 rounds when the firearm was sold to [the Applicant].
Police attended [the Applicant's] residence ... on 16 September 2010 and [the Applicant's] firearms licence was suspended on the grounds that "It is not in the public interest for [the Applicant] to possess or use firearms." At this time all of [the Applicant's] firearms were seized, including the above-mentioned Mossberg 500 shotgun. Police immediately noticed that the Mossberg 500 shotgun was not in standard factory condition and had been extensively modified.
Section 20(b) of the Firearms Act 1996 ('the Act') reveals special conditions that related to [the Applicant's] Category G (Collectors) which [the Applicant] had acquired the Mossberg 500 shotgun under. This section prescribes that any firearm that is part of the collection, and that was manufactured after 1900 or that is a prohibited pistol, must be rendered temporarily inoperable by removing the bolt or firing mechanism and keeping it separate from the firearm in a locked container of a type approved by the Commissioner, or by using a trigger lock of a type approved by the Commissioner.
Police noted that the firearm was not fitted with any trigger lock. The firearm had a small cable lock which had been threaded through the ejection port of the shotgun to render it temporarily inoperative. Police noted that this cable lock provided almost no resistance to its removal by Police. Police were able to remove the cable lock using side cutters in less than ten seconds without any damage to the firearm. A trigger lock would have required significantly more time and force to remove and it is likely that by removing an approved trigger lock by force would result in damage to the trigger mechanism.
As Police observed the Mossberg 500 shotgun to be extensively modified, this firearm was conveyed to the forensic ballistics section for an assessment to be carried out. This assessment revealed that the shotgun was fitted with a tubular magazine with a capacity of seven rounds.
The fitment of a seven round magazine made the Mossberg 500 shotgun a Category D firearm. [The Applicant was] not the holder of a Category D firearms licence, nor [has the Applicant] ever applied for a permit to acquire a Category D firearm.
With the lodgement of a permit to acquire, [the Applicant] could have lawfully acquired a Category D firearm under [the Applicant's] Category G (Collectors) firearms licence. However this firearm would have been subjected to the special condition set down in section 20(a) of the Act, which prescribes that any prohibited firearm (being a firearm to which a category D licence applies) that is part of the collection must be rendered permanently inoperable in a manner prescribed by the regulations.
Clause 34(4) of the Firearms Regulation [2006] ('the [Firearms] Regulation') sets out the manner in which a firearm must be rendered permanently inoperable in accordance with section 20(a) of the Act. These are as follows:
(a)a bore diameter mild steel rod must be inserted into the barrel of the firearm for a distance of 5 cm,
(b)the steel rod must be welded flush to the muzzle,
(c)a 5 cm long steel plug must be inserted into the chamber and fully welded flush,
(d)the barrel must be welded to the receiver to prevent the barrel from being removed.
At the time of seizure, Police noted that the Mossberg 500 shotgun was fully functional, with no obstructions of the barrel, chamber or bolt face.
On 1 December 2010 Police made enquiries with a Firearms Dealer, Survival Arms in relation to the Mossberg 500 shotgun. Police were advised by Staff that Survival Arms had painted the Mossberg 500 shotgun to its current olive drab colour; however they denied making any other modifications to the firearm. Staff advised that when they received the Mossberg 500 shotgun it was already fitted with the seven round magazine and staff brought this to [the Applicant's] attention and offered to return the firearm to its registered capacity. [The Applicant] declined this offer stating "It's ok I have a licence for it."
Police have indicated that in modifying a lawfully obtained firearm [the Applicant] obtained a fully functional prohibited firearm which [the Applicant was] not licensed to possess or use and [the Applicant] had no lawful reason to possess. Police have further indicated that the offence is one which would have involved a significant degree of planning to source the materials required for the modification, a person with the skills to complete the modification and the commission of another serious offence relating to the modification of the firearm.
As a consequence of this matter, [the Applicant was] charged with the following offence:
Offence
Court/Date
Result
Possess unauthorised prohibited firearm
Sutherland Local Court - 6 June 2011
Withdrawn
On 17 August 2011 a report has been received from Police from State Crime Command which recommends [the Applicant's] firearms licence be revoked. This report reveals that on 16 September 2010 Police suspended [the Applicant's] firearms licence as information had come to the attention of Police that [the Applicant] had an association with high ranking members of the Comanchero Organised Motorcycle Gang.
This report further reveals that Police attempted to obtain a statement from the staff member of Survival Arms in relation to the statements made to Police on 1 December 2010 regarding [the Applicant's] Mossberg 500 shotgun; however this staff member made a statement that was completely inconsistent with her statements made on 1 December 2010. This staff member made this statement utilising a page of handwritten notes that were revealed to be a copy of a letter that was utilised by [the Applicant's] legal council in a bail hearing application on 20 December 2010. This staff member was subpoenaed to attend Court on 6 June 2011, however did not attend. Police Prosecutors at the Sutherland Local Court subsequently declined to proceed with the criminal hearing as they considered the success of the prosecution unlikely due to the conflicting statements of a hostile witness creating reasonable doubt. Subsequently [the Applicant's] charge was withdrawn.
In relation to the decision in relation to the revocation of the Applicant's Security licence, the decision maker stated:
When reviewing [the Applicant's] fitness to hold a security licence I have taken into consideration adverse Police information concerning your client and in accordance with Section 15(7) of the Act I decline to provide you with any further details about this information.
The Respondent's Case
The Respondent relies on both open and confidential material. In particular the Respondent relies on material filed pursuant to section 58 of the ADT Act and statements by Constable Graham Baxter; Sergeant Shane Rooney; Lawrence Campbell, the Team Leader at the Firearms Registry's Dealers and Registration Unit; and Graham Barry, the owner and proprietor of the Condell Park Indoor Firearms Range ("the Condell Park Range"). Constable Baxter and Mr Gary Georgiou attended the hearing, gave evidence and were cross-examined.
Constable Baxter
The Respondent relies on a memorandum dated 11 August 2011 prepared by Constable Baxter of Strike Force Raptor. This is the report referred to above that was received from State Crime Command on 17 August 2011.
In the memorandum Constable Baxter noted that the Applicant came to the attention of Strike Force Raptor in relation to his association with high-ranking members of the Comanchero OMCG. Constable Baxter also noted that the Applicant's firearms were seized and irregularities were noted with the Mossberg 500. The details of the alleged irregularities are referred to above.
Constable Baxter also noted that investigations led Police to conduct a search at firearms dealer Survival Arms on 1 December 2010. During the execution of that search warrant Police had a conversation with Ms Camelia Livadaru in relation to the Mossberg 500. This conversation was recorded on audio and video. During that conversation Ms Livadaru disclosed to police that she had discussed the magazine capacity of the Mossberg 500 with the Applicant and the Applicant had made admissions in relation to his knowledge of the magazine capacity of the firearm.
Ms Livadaru subsequently provided a statement that was completely inconsistent with her statements made on 1 December 2010. Constable Baxter indicated his belief that the statement of Ms Livadaru as recorded on video on 1 December 2010 was truthful due to the spontaneous nature of the statement and the fact that the statement was detrimental to her as it disclosed that she had committed an offence by returning a firearm to a person who was not licensed to possess it.
Constable Baxter also noted that even prior to the detection of the alleged offence in relation to the Mossberg 500, Police had concerns in relation to the Applicant and his firearms. There was concern in relation to a .338 Lapua Magnum rifle ("the .338"). It is alleged that when questioned, the Applicant indicated that he used this firearm at the Condell Park Range. However, Constable Baxter noted that the Condell Park Range is not certified for rifles larger than .22 rimfire, and the .338 has a centre fire cartridge of 8.8mm calibre.
The Respondent also alleged that when later questioned, on 6 September 2010, the Applicant indicated that he used this firearm at the St Marys Indoor Shooting Centre. However, Constable Baxter noted that The St Marys Range is also not certified for this type of firearm.
Constable Baxter also noted that Police have concerns in relation to the Applicant's use of his collectors licence to acquire multiple post-1948 pistols. He asserted that the nature of these firearms is such that they could be readily diverted to criminal activity.
Constable Baxter recommended that the Applicant's firearms licence be revoked.
Sergeant Rooney
Sergeant Rooney's evidence is that on 11 August 2010 he attended the Applicant's residence to speak with him regarding his large calibre high velocity rifle. He sighted and checked the firearm and confirmed that it was being stored lawfully. He stated that in response to a question regarding which target range the Applicant used for this firearm, he recorded the Applicant's response as "Harley Crescent Condell Park".
Sergeant Rooney attended the hearing, gave evidence and was cross-examined.
Lawrence Campbell
Mr Campbell gave evidence regarding the Applicant's firearms licences and his history of acquiring and disposing of firearms. He also provided some details regarding a number of those firearms, including the .338 and a Steyr model .50BMG (Browning Machine Gun) ("the .50").
He stated that there is only one Shooting Range Approval issued in NSW that authorises the use of a .50 calibre or .338 calibre rifles. That range is located at Wanaaring, 200 kilometres west of Bourke.
He stated that the use of .338 and in particular .50BMG rifles in an indoor range such as the Condell Park Range, where a steel bullet catcher is in place to stop the projectile, would severely damage and/or pass through the steel structure.
In his statement of 9 November 2011 Mr Campbell also stated:
I have looked at all the firearms both acquired and disposed of by Davos since he first became licensed in September, 2008. They are of recent manufacture. There is nothing historically, thematically, commemoratively or financially significant about them, as would be required under his category G collectors licence.
Graham Barry
Mr Barry's evidence is that no high calibre rifles can be used at the Condell Park Range. The Range is not approved for .50 calibre or .338 calibre rifles. He stated that not only would it be contrary to the Range Authority and expose the Club to a potential penalty up to and including revocation of the Range Authority, but those types of firearms would damage the structure of the Range.
He further stated that no person would ever be permitted to use a .338 Lapua at the Range.
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Submissions
Mr Bourke submitted that section 24 of the Firearms Act provides that a licence may be revoked if the licensee contravenes any provision of that Act or the Firearms Regulation, whether or not the licensee has been convicted of an offence for the contravention. Therefore, it does not matter whether a licensee has been convicted or not, it does not matter whether the licensee has been prosecuted or not, it does not even matter if the licensee has been prosecuted and found not guilty, the question is whether there has been a contravention of the Act.
The open evidence concerned two principal issues. Firstly, the question of the possession of the Mossberg 500 and, secondly, the possession and use of other weapons; in particular the .50 and the .338 high powered rifles.
As noted above, the Respondent asserts that the Applicant acquired a Mossberg 500 with a capacity of eight rounds (a Category D firearm) at a time when he was only authorised to acquire a Category C firearm with a magazine capacity of five rounds.
As I understand it, the issue in relation to the Mossberg 500 is whether, at the time it was in his possession, the Applicant knew or believed that it was an eight shot weapon.
Mr Bourke submitted that two individuals have provided information that goes to that question - Mr Gary Georgiou of Safari Firearms, from whom the weapon was purchased, and Ms Camellia Libidaru who supplied some accessories for the weapon and painted it.
The Respondent concedes that there is a question about the reliability of those two witnesses.
There is evidence from Mr Georgiou that he told the Applicant that the Mossberg 500 had a five shot capacity. It appears that Mr Georgiou generated information saying it was an eight shot capacity weapon sometime after he made the representation that it had a magazine capacity of five rounds. There is an inconsistent statement that Mr Georgiou gave when police initially spoke to him.
There is evidence of what Ms Libidaru said on the first occasion that she was approached and asked questions about the topic. The Respondent relies on evidence that on that occasion Ms Libidaru told the Applicant that the Mossberg 500 had a magazine capacity of seven rounds and that he said, "I know." However, Ms Libidaru countermanded that evidence in a subsequent document that she prepared.
In relation to the Applicant's claim that he was told that it was five rounds and that that is what he believed, Mr Bourke submitted that the Tribunal would take into account the Applicant's claims to be a collector. Mr Bourke submits that the Applicant would have some knowledge of firearms of this kind. He sought out a particular type of firearm - a pump action. He says that the fact that the Applicant went to the extent of seeking out and buying accessories for it underscores the likelihood that he had fairly extensive knowledge of the weapon.
Mr Bourke submits that the Tribunal would be satisfied, notwithstanding the reliability questions in relation to Mr Georgiou and Ms Libidaru, that the Applicant did know the true capacity of the Mossberg 500.
Mr Bourke referred to the nature of the offence with which the Applicant was charged. The offence has three elements. Firstly, that he did possess the item; secondly, that it was a prohibited firearm; and thirdly, that he was not authorised by a licence or permit to possess it. Mr Bourke submits that the there is no issue about any of those elements in these proceedings.
In his submission, section 24(2)(b)(ii) provides that a licence may be revoked if the licensee contravenes the Act regardless of whether they had been convicted or not. He argues that the Mossberg 500 was a category D weapon. In order for the Applicant to be able to possess it without contravening the Act it needed to be rendered permanently inoperable. There is no issue that it was not rendered permanently inoperable.
In his submission, all that the Tribunal needs to consider is: was the Mossberg 500 a category D weapon and was it not rendered permanently inoperable? If satisfied of those things, then the Tribunal would be satisfied that the Applicant had contravened the Act. He says that the honest and reasonable mistake of fact issue does not prevent this having been a contravention of the Act. However, it may be relevant to the mitigation of the offence.
In the alternative, the Respondent contends that if the Tribunal concludes that the Applicant believed it was not an eight shot weapon i.e. that he thought it was a category C weapon because it was a weapon which had a magazine capacity of not more than five rounds, then the legislation requires that it be rendered temporarily inoperable. A category C weapon must be rendered temporarily inoperable by using a trigger lock of a type approved by the Commissioner.
In relation to the issue of the trigger lock, the Applicant relies on the evidence of Mr Barry Smith, a gunsmith and gun dealer. Mr Smith's evidence was that the mechanism that the Applicant used - a cable lock - was a lock, and in his opinion it acted better than a trigger lock. However Mr Bourke submits that ultimately Mr Smith agreed that this was not a trigger lock. The Respondent contends that for the purposes of the offence, even if one was to accept that that was right, it is irrelevant that the mechanism that the Applicant used acted better than a trigger lock.
The Respondent concedes that there is no expert evidence to contradict that given by Mr Smith. However, Mr Bourke submits that a court or a tribunal is not bound to accept the evidence of an expert and, secondly, this is a matter about which the Tribunal can form its own view. He contends that the word or expression "trigger lock" is clearly something that locks the trigger and it is a matter of plain commonsense that the mechanism that the Applicant used did not do so.
In the Respondent's submission the contravention of the Firearms Act is made out because the rendering of this weapon was not in accordance with section 20(b).
Mr Bourke submitted that it is necessary for the Tribunal to be satisfied that there is virtually no risk in the Applicant continuing to possess his firearms licence. He further submitted that the Tribunal could not be satisfied that there is virtually no risk. He submitted that the Applicant is not a fit and proper person to hold a firearms licence and that it would not be in the public interest for him to do so.
In relation to the decision under the Security Industry Act the Commissioner submits that the Tribunal would be satisfied that the Applicant is not a fit and proper person to hold a security licence and that it would not be in the public interest for him to do so.
Accordingly, the Commissioner submits that the decisions under review should be affirmed.
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The Applicant's Case
The Applicant relies on his own evidence and on the evidence of Mr Barry Smith. He also relies on references provided by Mr Christopher Brown, an hotelier and consultant to the hotel industry. Mr Brown has known the Applicant for over fifteen years and has had dealings with him in a professional capacity. He regards the Applicant as a fit and proper person to hold these licences.
The Applicant asserts that he did nothing wrong other than possess the Mossberg 500. He says that the weapon came into his possession on the basis of misrepresentations made by Mr Georgiou.
Mr Sheller submitted that this is not a proper basis for the revocation of the licences.
The Applicant refutes the assertion that he has an association with high-ranking members of the Comanchero OMCG.
In relation to the Commissioner's assertion that he did not comply with the legislative requirement to make the Mossberg 500 inoperable, the Applicant's evidence is that he acquired the weapon from a licensed dealer with the cable lock in place. He relies on Mr Smith's evidence that the cable lock used on the Mossberg 500 complied with the Commissioner's guidelines.
In his report dated 3 June 2011 Mr Smith stated:
I believe that the cable lock as used complies with the safe keeping regulations and The Police Commissioner guidelines and this practice is in common practice.
From discussions at consultative meetings the intention of trigger locks etc. was to increase the difficulty of wrongful or unauthorized use of a firearm in storage and in transport. The cable lock prevents the operation of this type of firearm better than a trigger lock. It is also used on lever action firearms and semi automatic shotguns where it is also most effective and more suitable than a trigger lock.
According to Mr Smith, the cable lock discharges the obligations provided for by the Commissioner's guidelines. Mr Sheller submitted that the Applicant is entitled to rely upon the expert's advice.
Mr Sheller submitted that it was open to the Respondent to bring evidence to refute that given by Mr Smith but he did not do so. He further submitted that there is no basis for the revocation of a licence where the only expert to give evidence in the matter considered that what the Applicant did was satisfactory to comply with the Commissioner's guidelines.
In relation to the issue of the Applicant's uses of two of his weapons, (the .50 and the .338) in the wrong places, the Applicant's evidence was that he never used the .50 and that he only used the .338 at the St Marys Indoor Shooting Centre.
Mr Sheller firstly submitted that as the Applicant never used the .50 he cannot be criticised for not using it at the right place. Secondly, he submitted that the Applicant was entitled to use the .338 at the St Marys Indoor Shooting Centre for a time and that if there were periods when he was not entitled to use it there; there was an error on the part of the St Marys Centre.
The Applicant denies Sergeant Rooney's assertion that on 11 August 2010 he told Sergeant Rooney that he fired the .338 at the Condell Park Range. He says that no such statement was made. He refers to the statement of Mr Barry and submits that Mr Barry makes it abundantly clear that the .338 could not be used at the Condell Park Range. Mr Barry notes that weapons of a very high calibre cannot be used at the range.
Mr Sheller submitted that it has not been suggested to the Applicant that he in fact used the weapon at Condell Park. He further submits that the contention that the statement concerning where the .338 could be used reflects some degree of ignorance or recklessness on the Applicant's part was not put to him.
He submits that the Applicant probably did not say that he used the weapon at Condell Park but that if he did say it, it was a mistake and it cannot stand alone as a reason for maintaining the revocation of the licence.
In relation to the assertion that there is nothing historically, thematically, commemoratively or financially significant about the firearms acquired and disposed of by the Applicant, as would be required under his category G collectors licence, Mr Sheller submitted that the Commissioner has not provided evidence regarding what those descriptors mean in the context of licences. He points to Mr Smith's evidence that collectors collect weapons of recent heritage and that they turn over weapons as much, perhaps more, than other owners. He also points to the fact that the Applicant was able to identify themes and give evidence about what a collector can do with a weapon that is part of a collection.
In regard to the acquisition and disposal of firearms, the Applicant conceded that some of the weapons were in his possession only briefly. He explained that in order to test a weapon he had to buy it. Some of the weapons did not suit him and so they were quickly sold. Sometimes they were left in the possession of the firearms venue for sale to lawful customers.
Mr Sheller submitted that the Commissioner has not provided evidence regarding how long these weapons should be held for them to be considered suitably owned by a collector.
In relation to the evidence of Constable Baxter, Mr Sheller submitted that Constable Baxter conducted his investigation in a myopic way. In particular Mr Sheller pointed to Constable Baxter's failure, in the context of an induced interview with Mr Georgiou on 3 March 2011, to put to Mr Georgiou the evidence he then had about the magazine capacity of the Mossberg 500. Mr Sheller submitted that Constable Baxter's explanation of that deficiency is inadequate and that this Tribunal would not accept it.
Mr Sheller also points to the fact sheet used as part of the prosecution brief in relation to the failed charge against the Applicant. Constable Baxter prepared the fact sheet and it was used as part of the material for the Magistrate to consider at the bail application for the Applicant on 20 December 2010. Mr Sheller submitted that it is replete with errors, some of which would have been known at the time.
As a result of representations made by Constable Baxter the Applicant served an 18 day period of detention and then, even after bail was granted, had obligations imposed upon him for the next nearly six months until the charges were withdrawn.
Mr Sheller submitted that it is open to the Tribunal to find, and that the Tribunal should find, that a lot of what is presented as information for consideration by the Tribunal is the supposition of Constable Baxter, who has approached the investigation of the Applicant myopically, with disastrous personal circumstances to him.
He further submitted that the Tribunal should treat with great caution any confidential information for which Constable Baxter was somehow responsible.
Mr Sheller made the general submission that if the Tribunal is satisfied that the bases for revoking the firearms licence are found to be unjustified then the result should flow into the security licence; that is, the security licence revocation is not maintainable. However, if the Tribunal has any concern about some technical deficiency on the part of the Applicant in regard to the firearms licence, for which the Applicant is found to be responsible, and if the Tribunal is satisfied that it justifies the revocation, then he submitted that the Tribunal should consider whether that technical issue should bear on his entitlement to have a security licence.
Discussion
These are applications for review of the decisions to revoke the Applicant's security and firearms licences.
The Applicant's firearms licence
In relation to the Applicant's firearms licence, the Respondent contends that the Applicant has committed an offence in that he possessed an unauthorised prohibited firearm - the Mossberg 500. The offence has three elements. Firstly, that he did possess the item; secondly, that it was a prohibited firearm; and thirdly, that he was not authorised by a licence or permit to possess it.
I am satisfied that the evidence establishes that the Mossberg 500 is a category D firearm and that it was a prohibited firearm. I am satisfied that the evidence establishes that the Applicant possessed the Mossberg 500 and that he was not authorised to possess it. The elements of the offence are therefore established.
It is also clear that at the time that the Applicant purchased the Mossberg 500 it in fact had an eight shot capacity.
As the holder of a Category G (Collectors) firearms licence the Applicant could have applied to lawfully acquire a Category D firearm. However if he had done so the firearm would have been subjected to the special condition set down in section 20(a) of the Act. As a category D firearm the Mossberg 500 needed to be rendered permanently inoperable in order for a collector to be able to possess it without contravening the Act.
It is not in dispute that the Mossberg 500 had not been rendered permanently inoperable.
The Applicant denies that he knew the true capacity of the Mossberg 500. There is also evidence that casts doubt on the Applicant's position. However, there is evidence that Mr Georgiou told the Applicant that the Mossberg 500 only had a magazine capacity of five rounds.
Nevertheless, in my view it is implausible that the Applicant would not have been aware of the true capacity of the Mossberg 500. It is reasonable to expect that as a collector, who was spending a significant amount of money on the purchase and extensive modification of the firearm, the Applicant would have knowledge of firearms of this kind. I agree with Mr Bourke's submission that the fact that the Applicant went to the extent of seeking out and buying accessories for it underscores the likelihood that he had fairly extensive knowledge of the weapon.
In my view it is probable that the Applicant knew the true capacity of the Mossberg 500.
It is also my view that the Applicant has contravened the Firearms Act by his possession of the Mossberg 500.
I do not need to determine the question of whether or not Mr Georgiou really knew that it had a capacity of eight rounds but nevertheless was representing it as only having a magazine capacity of five rounds for some other reason.
If I am wrong in my view that the Applicant knew the true capacity of the Mossberg 500, I am satisfied that he did not comply with the requirement that the weapon be rendered temporarily inoperable by using a trigger lock of a type approved by the Commissioner.
I note the evidence given by Mr Smith in relation to the issue of the trigger lock. In his opinion the mechanism that the Applicant used acted better than a trigger lock. However, I accept that it is not a trigger lock of a type approved by the Commissioner.
I agree with the Respondent's contention that for the purposes of the offence, even if one was to accept that Mr Smith was right, it is irrelevant that the cable lock used was more effective than the approved trigger lock.
Section 24(2)(b)(ii) of the Firearms Act provides that a licence may be revoked if the licensee contravenes the Act regardless of whether they had been convicted or not.
In my view, it is essential that licensees comply with the legislative requirements. The legislature has determined that imposing strict controls on the possession and use of firearms is the best way of improving safety. The most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences. The legislature did not intend that it be open to the Applicant or any other licensee to determine that an alternative method of disabling a firearm is to be preferred to that approved by the Commissioner. It is for the Commissioner, not the individual licensee to determine how a weapon is to be rendered inoperable.
Section 11(3)(a) of the Firearms Act provides that a licence must not be issued unless the Commissioner is not only satisfied that the Applicant is a fit and proper person but also that he "can be trusted to have possession of firearms without danger to public safety or to the peace". I have concerns that the Applicant does not have sufficient knowledge and understanding of the obligations imposed on a licensee to be able to satisfy this requirement. If he is aware of the requirements, he appears to have a relatively casual attitude towards compliance with them.
The underlying principles of the Firearms 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 this matter, Mr Bourke submitted that it is necessary for the Tribunal to be satisfied that there is virtually no risk in the Applicant continuing to possess his firearms licence.
In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraphs [27] - [28], Deputy President Hennessy said:
27 One of the objects of the Act, as set out in s 3, is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." In determining whether Mr Ward is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.
28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.
The views expressed in Ward have been adopted in numerous decisions in this Tribunal. On the material before me, I am not satisfied that there is virtually no risk in the Applicant continuing to possess his firearms licence.
The Respondent also contends that the Applicant is not a fit and proper person to hold a firearms licence and that it would not be in the public interest for him to do so.
It is well established that the term "fit and proper person" standing alone carries no precise meaning and that it must take its meaning from its context and the activities a person is to be licensed to perform. In assessing whether a person is a "fit and proper person" the Tribunal has followed the following statement of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380; [1990] HCA 33; 94 ALR 11 at 65:
"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 a person who 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, 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 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 a fit and proper person to undertake the activities in question.
In that case the question was whether the holder of a commercial broadcasting licence under the Broadcasting Act 1942 (Cth) continued to be a "fit and proper person" to be the holder of such a licence. Toohey and Gaudron JJ, at 382, went on to consider the role of commercial broadcasting and the obligations of a licensee. Their Honours stated that these obligations included an obligation to the community that the licensee would not abuse its potential for powerful influence. Mason CJ stated that the concept "fit and proper person" should not be construed narrowly.
That approach has been followed in numerous decisions of this Tribunal. See, for example, Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 where Higgins JM stated at paragraph [22]:
22 In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the Applicant's conduct and whether that conduct is such that he can be satisfied that the Applicant can be trusted to have possession of firearms without danger to public safety or to the peace.
On the totality of the evidence before me in this matter it is my view that the Applicant is not a fit and proper person to hold a firearms licence and that it would not be in the public interest for him to do so.
Accordingly it is my view that the determination to revoke his firearms licence should be affirmed.
The Applicant's security licence
The Applicant has urged caution in regard to the weight given to material on which the Commissioner relies that has not been made available to the Applicant and particularly in regard to any material for which Constable Baxter was somehow responsible.
I am conscious of the disability under which the Applicant must conduct these proceedings as the result of my decision to allow part of the proceedings to continue in his absence. I have therefore taken note of the request for caution. To some extent I agree with the submission in regard to Constable Baxter. I did not consider him to be an impressive witness.
In regard to the need for caution I note the following observation made by Judicial Member Molony in Avilion Group Pty Ltd v Commissioner of Police, NSW Police [2010] NSWADT 129 ("Avilion") at paragraphs [47] - [48] about the material upon which the Commissioner relied in that matter:
"47 ... much of the material is self-corroborating; with the result that, when one considers the weight of the underlying evidence, the whole house of cards collapses. This, in my view, is not evidence upon which the Tribunal could be satisfied to the Briginshaw standard. In that case Dixon CJ said:
"... reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
48 Among the considerable body of material submitted by the Commissioner there are, however, a number of pieces of evidence which are sufficiently reliable for the Tribunal to rely on when making findings of fact.
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When exercising discretion in relation to a licence it is necessary to keep in mind the activities that the person will be engaged in under the licence. In that regard, the objects and purposes of the Security Industry Act are relevant i.e. the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130.
Several decision of this Tribunal have emphasized the view that the security industry has a special role in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe: Haining v Commissioner of Police [1999] NSWADT 6.
In Avilion Molony JM considered a number of authorities that have dealt with the question of whether a person is fit and proper. He discussed the matter in regard to the security industry at paragraph [119]. I quoted that discussion in some length in AVS Group Australia Pty Limited v Commissioner of Police. It serves no purpose to restate it here.
In the Second Respondent Speech on the Security Industry Amendment Act 2002 - which, among other things, introduced section 15(6) and (7) to the Security Industry Act, Mr Gaudry, Parliamentary Secretary, in the Legislative Assembly on 12 November 2002, said:
"The intention of the Security Industry Act is to ensure that high standards of integrity and conduct are maintained within the security industry. Entry to the industry is restricted by the licensing system in order to protect the public interest by diminishing the likelihood of criminal activity within the industry. For this reason, persons convicted of specified offences are barred from working in security.
It is the view of NSW Police that persons who are known to have extensive links to organised crime figures, who are members of an outlaw motor cycle gang linked to organised crime, or who are suspected of offences relating to drug trafficking, murder or other violence offences, should be regarded as "not fit and proper" to hold a security licence.
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Clearly, it is in the public interest that persons thought by police to present a public safety or a criminal risk are not given special access to premises, persons or goods under the security licensing system. This should apply even where the person has yet to be charged with a specific criminal offence."
It is apparent that the legislative intention underlying section 15(6)(c) is that where criminal intelligence or other criminal information causes the Commissioner to not be confident that an applicant will not act in accordance with the high standards of integrity and behaviour required by the Security Industry Act, the Commissioner may find that person not to be fit and proper to hold a licence. This is so despite the fact that, without that criminal intelligence or other criminal information, the person may otherwise be fit and proper: FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88 at paragraph [54].
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I agree with the Commissioner's assessment of the material before me. I have weighed the material provided by the Applicant against that of the Commissioner and, in my view, the evidence supports the contention that the Applicant is not a fit and proper person to be the holder of a licence under the Security Industry Act.
Accordingly it is my view that the determination to revoke the Applicant's security licence should be affirmed.
Orders
1. In matter No. 113050 the decision under review is affirmed
2. In matter No. 113259 the decision under review is affirmed
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Decision last updated: 11 January 2013
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