Elfalak v Commissioner of Police, NSW Police Force
[2011] NSWADT 131
•03 June 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Elfalak v Commissioner of Police, NSW Police Force [2011] NSWADT 131 Hearing dates: 15 October and 24 November 2010 Decision date: 03 June 2011 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: The decision of the respondent is affirmed.
Catchwords: Firearms Licence - revocation of licence - conviction of an offence of failing to notify of change of residential address - whether not in public interest for the holder of the licence to continue to hold the licence - exercise of discretion where convicted of an offence under the Act Legislation Cited: Administrative Decisions Tribunal Act 1997
Firearms Act 1996
Firearms Regulation 2006
Road Transport (Driver Licencing) Act 1998
Security Industry Act 1996Cases Cited: Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266
Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657
Commissioner of Police, New South Wales Police Service v Toleasoa [1999] NSWADTAP 9
Director of Public Prosecutions v Smith (1991) 1 VR 663
Ward v Commissioner of Police (2000) NSWADT 28
Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75Category: Principal judgment Parties: Anthony Elfalak (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: T Lynch (Respondent)
D Leaney (Applicant)
File Number(s): 103015
REasons for decision
The applicant, Anthony Elfalak, seeks review of a decision of the respondent, the Commissioner of Police, to revoke his category AB firearms licence. The applicant is 29 years of age and he has been the holder of such a licence since January 2004, with his most recent licence having been issued in March 2009. That licence was issued for a period of 5 years and was not due to expire until March 2014.
The respondent had determined to revoke the applicant's firearms licence on 2 November 2009. The respondent made this decision following the applicant's conviction, on 20 October 2009, at Kogarah Local Court for an offence under section 69 of the Firearms Act 1996 (the Act). That section provides that the holder of a firearms licence or permit must provide the respondent with the particulars of any change of residence within seven days of the change. A failure to comply with this requirement constitutes an offence and is punishable by a fine.
The applicant was also the holder of a probationary pistol licence. That licence was issued in October 2008 and was only valid for 1 year. On 2 November 2009, the respondent also revoked this licence. However, the applicant does not press a review of the respondent's decision in regard to this licence.
The respondent revoked the applicant's licences on the ground that it was not in the public interest for the applicant to continue to hold the licence and also on the additional discretionary ground arising from his conviction of an offence under the Act. The facts relied on by the respondent were the circumstances giving rise to the applicant's conviction, the applicant's alleged association with members of the Bandidos outlaw motorcycle gang and an alleged dispute between the applicant and his cousin, Mr Alha. The applicant contends that his conviction is not a ground on which his licence should be cancelled and he otherwise disputes the allegations that have been made against him, or that there is sufficient evidence to find that it is no longer in the public interest for him to be the holder of a category AB firearms licence.
The role of the Tribunal is to determine the correct and preferred decision having regard to the material before it and the applicable law: see section 63 of the Administrative Decisions Tribunal Act 1997. For the reasons set out below, I have found that the decision of the respondent is the correct and preferred decision.
Relevant legislation
The Commissioner's power to revoke a firearms licence is contained in section 24 of the Act. That section relevantly provides as follows:
24 Revocation of Licence
(1)...
(2)A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) ...
(ii) contravenes any provision of this Act or the Regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
(c) ..., or
(c1) ...
(d) for any reason prescribed by the Regulations.
Section 11 of the Act sets out the circumstances in which the respondent may or must refuse an application for a firearms licence. It relevantly provides as follows:
11. General restrictions on issue of licences
(1) ...
(5) A licence must not be issued to a person who:
(a) ...
(b) has, within a period of ten years before the application for 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 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 ...
Clause 5 of the Firearms Regulation 2006 (the Regulation) prescribes the offences relevant to paragraph 11(5)(b) of the Act. That clause relevantly provides as follows:
5. Offences that disqualify applicants
(1)for the purposes of sections 11(5)(d) ... of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:
(a) Offences relating to firearms or weapons
An offence relating to the possession or use of a firearm, or any other weapon, committed under:
(i) the law of any Australian jurisdiction, or
(ii) ...
For the purposes of paragraph 24(2)(d) of the Act, clause 19 of the Regulation provides that the respondent may revoke a firearms licence if the respondent is satisfied that it is not in the public interest for the holder of the licence to continue to hold that licence.
The evidence
The applicant tendered into evidence 4 affidavits. These were an affidavit sworn by himself, Louis Elfalak (his brother), Fabian Aranibar and John Alha (his cousin). The applicant and his witnesses also gave oral evidence at the hearing and were cross-examined.
In addition to this evidence the applicant tendered into evidence 18 written references and a number of other documents (including the transcript of proceedings before the Local Court at Kogarah in October 2009).
The respondent tendered into evidence a brief of evidence containing a number of documents, a number of coloured photocopies of photographs contained in the brief of evidence and an unsigned statement of the applicant's brother, Louis Elfalak.
The evidence of the witnesses and the documents relied on by the respondent are dealt with below.
Is it not in the public interest for the applicant to continue to hold his category AB firearms licence?
It is convenient to first consider whether, on the material before the Tribunal, it is not in the public interest for the applicant to continue to hold his category AB firearms licence.
The legal principles
The term 'public interest' is not defined in the Act or the Regulations. Nor does the legislation contain a list of factors that should be taken into account for the purposes of determining where the public interest lies.
In Commissioner of Police, New South Wales Police Service v Toleasoa [1999] NSWADTAP 9, an appeal concerning a similar provision under the Security Industry Act 1996 , the Appeal Panel said, at [25], that the public interest is:
... an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual.
It is well established that a reference in legislation to 'the public interest' is to 'ensure that private interests are not the only matters taken into account; to make clear that the interest of the whole community are matters for the decision maker's consideration': see Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals: see Director of Public Prosecutions v Smith (1991) 1 VR 663.
It well accepted that 'the public interest' as prescribed under clause 19 of the Regulation must be considered in the context of the express principles and objects the Act. These are set out in section 3. Paragraph 3(1)(a) expressly provides that an underlying principle of the Act is 'to confirm firearm possession and use' is a 'privilege that is conditional on the overriding need to ensure public safety.' In applying this principle to the issue of where the public interest lies, in Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266 at [21] the Tribunal said the following:
The objects and principles of the Act state that firearms are a privilege and inherent in the requirements is that persons who have access to firearms must act responsibility where there has been, or is, a possibility of a threat to the public's safety, the public's right must outweigh an individual's privilege to possess and use a firearm. The principle issue then is whether there is a risk to safety of the public if Mr Aubrey retains the licence.
In Ward v Commissioner of Police (2000) NSWADT 28, at [28], the Tribunal acknowledged one could never be totally satisfied that a person would not pose a 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': see also Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at paragraph [25].
The applicant's conduct
As I have mentioned, the respondent contends that there are 3 matters, which evidence that it is not in the public interest for the applicant to continue to be the holder of a a firearms licence. These are discussed below.
The section 69 conviction - It is not disputed that on the evening of 25 August 2009, police from Strikeforce Raptor spoke to the applicant at his parent's home. Strikeforce Raptor had been established in March that year. It was tasked to employ high impact active policing strategies to combat outlaw motorcycle gangs and their criminal activities.
When asked by police to produce his driver's licence, the applicant produced a Queensland driver's licence. When asked if the address listed on this licence was his current residential address, the applicant replied 'No it's not my current, that's the property that I own.' The applicant went on to say that his current residential address was at his parents' home and that it had been so for the last two years. He said he went to Queensland 'for a bit'. In response to a question of how long he had resided in Queensland the applicant informed the police 'probably maybe a year.' It was on this occasion that the police suspended the applicant's firearms licence and charged him with an offence under section 69 of the Act and also an offence under the Road Transport (Driver Licencing) Act 1998 for being resident in New South Wales for a period of more than three months without obtaining a New South Wales drivers licence. The applicant pleaded guilty to both charges. I note from the transcript of the proceedings in the Local Court that were provided by the applicant, the only facts relied on were those which attained his failure to notify the respondent of his change of address.
The applicant, a licensed plumber, stated in his affidavit that he had obtained his Queensland driver's licence on 9 January 2008. He said that between January and December 2008 he had 'dual residence' in that he moved between his parents' home and an investment property that he owned in Queensland. He said that he only went to Queensland temporarily to repair his investment property. He acknowledged that while he was in Queensland he also did some plumbing work there. Nevertheless, he asserted that he retained his address in New South Wales in that this was the address to which his mail was sent and it was the place where he kept his clothes and personal affects together with his tools. He also went on to say that he should not have pleaded guilty to the firearms offence because at no time did he move his firearms and he had in fact resided almost equally at his New South Wales address and his Queensland address.
In his oral evidence the applicant explained that, in 2008, he had travelled to Queensland as the tenants in his investment property had caused considerable damage to it. He said he went there so that he could repair the property for re-renting. He also said that while he was in Queensland, he was looking to see if it was better for him to work in Queensland, rather than in New South Wales.
During cross-examination, the applicant said that January 2008 was the first time he had travelled to Queensland. However, he accepted that, on 14 October 2006, when the police stopped him in Port Macquarie, he informed the police officers that his residential address was that of his Queensland investment property. The applicant was riding his motorcycle and the police had stopped the applicant as he was seen overtaking a vehicle when it was unsafe. The applicant also acknowledged that in his letter to the respondent, dated 2 September 2009, he said he was a Queensland resident during 2008. Nor did the applicant dispute that when surrendering his New South Wales driver licence, in 2008, his stated reason for surrender was that he had moved interstate. It would appear that during this time, the applicant had either transferred his New South Wales plumber licence to a Queensland plumber licence, or he was the holder of such a licence in both States.
There is no dispute that after being questioned by police in August 2009, the applicant immediately went and applied for and was issued a New South Wales driver's licence.
Notwithstanding this evidence, the applicant maintained his position that he had resided equally in New South Wales and in Queensland during 2008. In my view that claim is disingenuous and has only been made following the revocation of his firearms licence.
There is however, no evidence that the applicant took his firearms to Queensland. Nor is there any evidence to indicate that they were stored, other than in accordance with the safe storage requirements of the Act (see sections 39 and 40), in the home of his parents. However, I do note that in August 2008, in making his application for a pistol licence he recorded his address as that of his parents. This is of course entirely contrary to what he said to police and the Court as to where he resided at that time.
The applicant's association with the Bandidos motor cycle gang . The applicant asserted that he has never been a member of any outlaw motorcycle gang, including the Bandidos. In his affidavit, he said that, in May 2005, he purchased a Harley Davidson motorcycle from a 'client' for whom he had 'done a roofing job in Leichardt' and that his brother had once been a 'prospect' for the Bandidos.
During his oral evidence the applicant acknowledged that the 'client' for whom he had done the roofing work was a member of the Bandidos and that the work he was asked to undertake was repairing the roof of the Bandito clubhouse. In his affidavit, the applicant stated that the 'client' had been referred to him through a family friend, Mr Farah. He said that Mr Farah owned a business called 'City Classic Bike Hire.' The respondent asserted that Mr Farah was and continues to be a member of the Bandidos. The applicant did not really respond to this particular assertion.
It was the evidence of the applicant that he purchased the Harley Davidson motorcycle for $28,000. Although the applicant failed to make it clear, he seemed to concede that he had not fully paid for the motorcycle and that it was given to him in part payment for the work he had done to the Bandidos clubhouse. The applicant suggested he was initially unaware of the owner of the Leichhardt building and his connection with the Bandidos. In my view, in light of all the material before the Tribunal, this is difficult to accept. In any event, the applicant said he sold his motorcycle, in June 2007, to Fabian Aranibar, a friend of his brother. However, Mr Aranibar, had possession of the motorcycle from April 2007. It was the evidence of Mr Aranibar that this was the time he became a 'prospect' member of the Bandidos. It was his evidence that he ceased being such a member during that year. Mr Aranibar did not transfer the registration of the motorcycle into his name until October 2007. This was several months after he had paid the applicant for the motorcycle. During cross-examination, Mr Aranibar said that at the time he took possession of the motorcycle he had a learner motorcycle driver licence, which did not allow him to drive a Harley Davidson. It was his evidence that he had worked with the applicant at the Leichhardt property and that he had met him through the applicant's brothers George and Louis.
It was the applicant's evidence that during the period, May 2005 and April 2007, he had given possession of his motorcycle to Mr Farah to use in his business of hiring motorcycles for special events. He said he did this as he did not have anywhere to store the motorcycle and he trusted Mr Farah to look after it for him.
In 2007, the applicant also purchased a brand new 2006 Harley Davidson motorcycle on behalf of his brother. He said he bought it on behalf of his brother, as his brother did not have a motorcycle licence at that time. Without such a licence, his brother was unable to finance the purchase of the motorcycle. He said his brother got his licence a few months later and he also made all the payments for the purchase of the motorcycle. In his evidence, the applicant's brother, Louis, gave similar evidence. He also acknowledged that he had been a 'prospect' member of the Bandidos in 2006, but ceased being a member in the same year.
The respondent's brief of evidence contained reference to a number of occasions during, 2006 and 2007, where the applicant's motorcycle and subsequently, the motorcycle he had purchased for his brother, were seen as part of a large group of motorcycles that belonged to or were being driven by members of the Badidos, who were wearing the Bandidos colours. The applicant denied that he was present on these occasions, or that he had any connection with the Bandidos. On the occasion, on 14 October 2006, when the police stopped him in Port Macquarie, while he was riding his motorcycle (see paragraph 25 above), his motorcycle was seen to have a Bandidos sticker on it. On this particular day there was also a large gathering of members of the Bandidos in Port Macquarie. The applicant asserted he had no involvement with this gathering.
The respondent also relied on photographs taken on 17 January 2009, in which the applicant is pictured, with his brother, Louis, on stage at an event with Mr Farah. The applicant and his brother explained that this was an indigenous fundraising event. In his affidavit, the applicant said that this even occurred in April 2008 and that there were a lot of people in attendance and he did not see any Bandidos emblems there. Once again, the applicant's evidence was equivocal. Furthermore, he did not put any independent evidence before the Tribunal, which corroborated what he and his brother had said.
Dispute with Mr Alha, the applicant's cousin. On 30 April 2009, police were called, by Mr Alha's mother, to her home as a domestic dispute had arisen between Mr Alha, his brother and the applicant. The police event report records that no offences were observed and the applicant and Mr Alha's brother were only trying to get Mr Alha to detach himself from his current friends. On 19 June 2009, police were called to a building site where the applicant, the applicant's brother, Mr Alha and Mr Alha's brother were working. Police were called as an argument had broken out amongst the men. According to the police event report, Mr Alha's brother was alleged to have attacked the applicant and his brother with a knife. Minor cuts were inflicted on the applicant. On the following day, Mr Alha and his brother attended his local police station, where Mr Alha made a statement alleging that the applicant had assaulted and intimidated him. In that statement Mr Alha alleged that the applicant had been verbally abusing him since late February/early March 2009. He asserted that the applicant had threatened to use his firearms against him and his family. On the basis of this information, police made an urgent request for an apprehended violence order (AVO). The urgent application was refused and on the following day police attended the home of the applicant's parents in order to serve him with an AVO application and also to seize his firearms. The police event report notes that the applicant, who was not there when they arrived, returned to his parents home and fully co-operated with police. As mentioned above the applicant's firearms and ammunition were found to be correctly stored.
Ten days later, on 1 July 2009, the applicant and Mr Alha attended their local police station where Mr Alha retracted what he had said earlier and all allegations and the AVO were withdrawn. The applicant's firearms were subsequently returned on 28 July 2009.
The applicant attached a copy of a statement that he said he had 'made about the AVO'. That document I note is headed 'Instruction of Anthony Elfalak'. On the basis of its format I have assumed that it is a document prepared by the applicant's solicitor of the applicant's account of events. When it was created is not clear. In essence, the applicant agrees that a dispute arose between himself and Mr Alha. He said, Mr Alha had asked him if he would sponsor his touch football team. This, the applicant agreed to do and he gave Mr Alha $1,500 so that his company logo could be placed on the jerseys and shorts of the team. When Mr Alha was unable to show him the jerseys and shorts he had purchased with his donation, the applicant asked for his money back. He said he never made any threats towards Mr Alha and that it was he who had assaulted him.
Mr Alha, in his affidavit, said that at the time he made his statement to the police he was angry. He said he was heavily addicted to cocaine at the time and had used the money the applicant had given to him to purchase drugs for his own use. He said he felt ashamed and did not wish to admit to his family the predicament he was in. So he lied and said he did not owe the applicant any money and that the applicant was threatening him. He acknowledged that he had attacked the applicant and what he had said to police was not true.
Findings and conclusions
It is now almost 2 years since the applicant was convicted of his firearms offence. Furthermore, many of the incidents relied on by the respondent occurred prior to this. However, the explanations given by the applicant of events are, in my view, inconsistent, incomplete and sometimes not credible.
By pleading guilty to the offence of failing to notify a change of his residential address, the applicant acknowledged that he had, in fact, changed address and hence breached section 69 of the Act. Yet in these proceedings the applicant sought to argue the contrary, without any real independent corroborative evidence. The contemporaneous documentary evidence supported that to which he had pleaded guilty. Indeed, the penalty notice that was issued to him in October 2006, is evidence of his Queensland residence some 2 years prior to that for which he was charged. Furthermore, on the basis of his conviction the applicant's application for his pistol permit was obtained on an improper basis, in that he would not have been entitled to be issued with such a permit if he resided in Queensland.
On the whole I was left with the impression that the applicant is all too willing to provide information, which suits his purpose, including the evidence he gave in this application. I am not going so far to suggest that he gave false evidence. My concern is that he lacks complete frankness and lacks any insight of the underlying purposes of the strict requirements of the Act to those persons who seek or hold a firearms licence. The requirement to inform the respondent of a change of residential address, if considered in isolation might be seen as being minor. However, as can be seen from the legislative scheme, it is one of the many aspects of an integrated scheme that meets the underlying principle of the Act that firearm use and possession is a privilege that is conditional on the overriding need to ensure public safety (see paragraph 3(1)(a) of the Act).
Although the applicant provided a number of references, which asserted he had used his firearms safely, these referees do not make any mention of the matters that are before the Tribunal.
I have similar concerns about the applicant's lack of frankness in regard to his association with the Bandidos, an outlaw motorcycle gang. I accept that there is no evidence that he is a member of the Bandidos, or that he has been a member or 'prospect' member. However, in my view there was ample evidence from which it could be inferred that the applicant had an association with members of this outlaw gang. The evidence is that in 2005 he purchased a motorcycle from a Bandidos member, he gave that motorbike to a Bandidos member for the use of that member up until April 2007, in 2006 his brother was a 'prospect' member of the Bandidos and in April 2007 he gave possession of his motorcycle a 'prospect' Bandidos member, who eventually purchased it from him some months later. On the basis of this material I find it difficult to accept the applicant's blunt assertion that he has had no association with the Bandidos, or its members.
Once again I find that the applicant has failed to be fully frank and this lack of frankness in regard to this issue and the requirements of the Act lead me to find that I cannot be satisfied that he would not pose a risk to public safety if he were given access to a firearm.
In regard to the altercation between the applicant and Mr Alha there does not appear to be any doubt that a dispute did arise over money the applicant had advanced to Mr Alha. While I accept the evidence of Mr Alha that he had been the aggressor and not the applicant, I am not altogether satisfied that this is the entirety of what had occurred. In any event, for the purpose of this application I need not take it any further.
The section 69 Firearms conviction
In light of my findings above it is unnecessary for me to deal with this issue. However, I would make the following brief comments.
It was the applicant's contention that the offence created under section 69 of the Act is not an offence that relates to the 'possession' or 'use' of a firearm. That is, it is not an offence that falls within clause 5(1)(a) of the Regulation. The applicant does not appear to dispute that a conviction for an offence falling within this description is serious as it is an offence for which the respondent must refuse an application for a licence (see section 11(5)(b) above), including any future application by the applicant in the event his licence is restored. The applicant also seems to agree that an offence falling within clause 5(1)(a) that must be regard as serious for the purpose of the exercise of the discretion, under section 24(2) of the Act, to revoke an existing licence.
The term 'possession' is defined in section 4 of the Act to mean:
"possession" of a firearm includes any case in which a person knowingly:
(a) has custody of the firearm, or
(b) has the firearm in the custody of another person, or
(c) has the firearm in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person
Section 4A of the Act provides an extended meaning of the word 'possession' of a firearm for the purposes of proof in proceedings under the Act. It is unnecessary to recite this section as it does not appear to be of any relevance to this application.
Section 7 and 7A of the Act contain offence of possessing and using a firearm, without a licence or a permit. Sections 39, 40 and 41 contain requirements in regard to the possession of a firearm by a licensed holder and also the storage of a firearm and its ammunition when the firearm is not being used by the licence holder. A failure to comply with the requirements in these sections constitutes an offence. These sections clearly concern the possession and use of a firearm by a licence holder and accordingly, a contravention of these provisions is an offence falling within clause 5(1)(a) of the Regulation.
Section 36 of the Act prohibits a person from selling, purchasing, possessing or using a firearm that is not registered. Again a breach of this section is an offence. It is also arguably an offence falling into clause 5(1)(a) of the Regulation. Section 33 of the Act creates a Register of firearms that are registered in this State.
Integral to the licensing regime under the Act is a requirement for the disclosure of the residential address of the licence holder and also the registered owner of a firearm. In regard to registered firearms, specific provision is made for this in clause 102(a)(b) of the Regulation. I note that it is also a requirement contained in the application form of a firearms licence. Arguably this requirement is a matter that is relevant to the respondent's ability to monitor the possession and use of firearms. However, the issue as to whether the offence in section 69 of the Act falls within clause 5(1)(a) of the Regulation is a matter that should be determined in more appropriate matter.
Conclusions
For the reasons I have stated above, in my view the decision of the respondent is the correct and preferred decision and on this basis the appropriate order is to affirm the decision of the respondent.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
Decision last updated: 03 June 2011
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