Hamed v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 148

CITATION:	Hamed -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 148
DIVISION:	General Division
PARTIES:	APPLICANT Hasham Hamed RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013098
HEARING DATES:	29/08/2001
SUBMISSIONS CLOSED:	08/29/2001
DATE OF DECISION:	09/11/2001
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Ex parte Meagher (1919) 336 WN(NSW) 175 Australian Broadcasting Tribunal -v- Bond (1990) 170 CLR 321 Saffron -v- Federal Commissioner of Taxation (No 2) (1991) 102 ALR 19 Ridley -v- Secretary, Department of Social Security (1993) 29 ALD 726
REPRESENTATION:	APPLICANT D Drewett, barrister RESPONDENT D Paterson, solicitor
ORDERS:	The Commissioner's decision to revoke Mr Hamed’s firearms licence is affirmed.

Background

1 This is an application for a review of a decision of a delegate of the Commissioner of Police (“the Commissioner”) to revoke Mr Hamed’s firearms licence. Mr Hamed was issued with a Category H firearms licence on 29 January 1998 for use in his work as a security guard. The licence was suspended on 10 August 2000 and revoked on 13 February 2001.

2 The decision to revoke Mr Hamed’s firearms licence was based on Mr Hamed’s failure to possess a current Firearms Accreditation Certificate, the Commissioner’s view that Mr Hamed is not a fit and proper person to hold a firearms licence, and the Commissioner’s view that it is not in the public interest for Mr Hamed to continue to hold a firearms licence.

3 In reaching this decision, the delegate considered an event which took place on 31 July 2000 after Mr Hamed was were stopped by police for a traffic matter. It was alleged that Mr Hamed became aggressive, violent and argumentative and continually hindered the police officers. Mr Hamed was arrested and charged with the traffic offence and with resist police and hinder police charges. On 28 November 2000 Mr Hamed was convicted of Resist or hinder police officer in the execution of their duties and Resist officer in execution of duty for which he was fined $200 on each charge. Mr Hamed appealed the conviction and on 24 January 2001 the Parramatta District Court found the offences were proved and dismissed the conviction under Section 10 of the Crimes (Sentencing Procedure) Act 1999.

4 On 12 March 2001 Mr Hamed requested an Internal Review of the decision to revoke his firearms licence. On 21 March 2001 the Internal Review was finalised and a decision was made affirming the decision to revoke Mr Hamed’s firearms licence. Mr Hamed applied to the Tribunal for a review of the Commissioner’s decision on 20 April 2001.

The law

5 The Firearms Act 1996 (“the Act”) sets up a scheme for licensing people to possess and use firearms. There are several grounds for revocation which the Commissioner submits are relevant to the facts of this case. In brief, 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 [s 24(2)(a) of the Act];
b) if, in contravention of Clause 69(2) of the Firearms (General) Regulation 1997 (“the Regulation”) the licensee does not possess a current Firearms Accreditation Certificate;
c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence [s 24(2)(c)) of the Act];
d) if the Commissioner considers that it is not in the public interest for the person to whom the licence is issued to continue to hold it [s 24(2)(d) of the Act and Clause 17 of the Regulation].

Evidence

6 The documentary evidence before the Tribunal was Mr Hamed’s Application to the Tribunal, the Fact Sheet presented by the Police Service at the Local Court hearing and the Police Service’s file comprising:
· a document outlining Mr Hamed’s licence history;
· a Criminal History – Bail Report in relation to Mr Hamed;
· Notices of Suspension dated 10 August 2000 and 26 August 2000 in relation to Mr Hamed’s firearms licence;
· a Revocation Order dated 7 February 2001 in relation to Mr Hamed’s firearms licence and: associated Statement of Reasons;
· A request from Mr Hamed for internal review of the revocation of his firearms licence; and
· The NSW Police Service Internal Review - Statement of Reasons.
7 The transcript from the Local Court proceedings was not in evidence, however the Fact Sheet, as presented by the Police Service at the hearing was tendered. Mr Hamed was convicted of offences based on the Fact Sheet and other evidence. On appeal, the District Court found the charges proven but the conviction was set aside.

8 The facts as alleged are that at about 4:40pm on 31 July 2000, Police stopped Mr Hamed’s vehicle in relation to a traffic offence.

9 A conversation ensued between the Police and Mr Hamed in which the Police advised Mr Hamed that he had turned contrary to the red right hand arrow signal. Mr Hamed asked the police to be lenient. He told the police that he did security patrols and only had three points left on his drivers licence. He stated that he had helped the Police many times and that he was on their side. The Police advised Mr Hamed that his actions where dangerous to pedestrians and that he would not be let off and would receive a traffic ticket.

10 Mr Hamed continued to argue with police in relation to the incident and the decision by Police to issue him a ticket. Mr Hamed approached the police vehicle and opened the passenger side door. He was told several time to move away from the police vehicle. Mr Hamed became aggressive in his behaviour towards the Police. Mr Hamed was told to return to his vehicle but he refused to do so and continued to argue with the Police. Mr Hamed followed the Police Officers to the police vehicle and attempted to take his licence from one of the Police Officers. When one of the Police Officers attempted to open the driver’s door of the police vehicle Mr Hamed prevented him from doing so. Mr Hamed continuously pushed against the door preventing the police from opening the door.

11 Mr Hamed was warned that if he didn't return to his vehicle he would be arrested for hindering police. Police attempted to open the driver’s door of the police vehicle and were again prevented from doing so by Mr Hamed, in the same manner. Mr Hamed was informed that he was under arrest for hindering police after being warned many times.

12 The Police attempted to restrain Mr Hamed, although Mr Hamed resisted them. They wrestled with Mr Hamed for some time before warning him that he would be sprayed with OC spray if he continued to struggle. Mr Hamed was then sprayed with OC spray for about two seconds. Mr Hamed continued to struggle and was again sprayed for about two seconds.

13 Additional police arrived on the scene and assisted in arresting Mr Hamed. Mr Hamed was handcuffed and placed in the rear of a police vehicle. He was taken to Burwood Police Station where he was charged with the traffic offence and with resist police and hinder police charges.

14 Mr Hamed agreed that the events had occurred as set out in the Facts Sheet with the exception that he denied that he had prevented the Police from opening the door of the police vehicle.

15 Mr Hamed gave evidence that he has been in the security industry for approximately 7 years and has held a firearms licence for approximately 3 years. He is 26 years old, married with one child. His evidence is that he has suffered financially as a consequence of losing his firearms licence. He is currently employed as a painter earning approximately $250 per week. His family has no other income and his home is heavily mortgaged. As a security guard he earned approximately $1500 per fortnight.

16 In relation to the events of 31 July 2000 Mr Hamed stated that the Police Officer who charged him was very young and inexperienced. Mr Hamed said that he was upset by the incident and he considered it as very unfortunate. He was sorry that it had occurred and he had learned from the experience. He assured the Tribunal that it would never happen again.

17 Mr Hamed said that the events outlined occurred shortly after a late night incident in which Mr Hamed had gone to the aid of a man who had been accosted by two men, threatened with a weapon and forced to go to a flexi-teller to withdraw cash. The assailants had fled when confronted by Mr Hamed. He had then assisted the victim and had offered assistance to the police in relation to the incident. Mr Hamed had been troubled by those events.

18 With respect to the allegation that he does not possess a current Firearms Accreditation Certificate Mr Hamed stated that he was aware of the requirement and had undertaken the required training. When he had undertaken the training he had received a certificate of attendance and gave that certificate to his employer. It was his employer’s obligation to pass the certificate on to the appropriate authority. He had not received any notification that his accreditation had expired and until he was advised of the Commissioner’s decision to revoke his licence, he was unaware that the certification had not been passed on by his employer.

19 As a consequence of his firearms licence being revoked it has been difficult for Mr Hamed to obtain work in the security industry. While not all security guards have a firearms licence, prospective employers ask about such licences.

20 A security guard who does not have a firearms licence is placed at a disadvantage when seeking employment.

Applicant’s submissions

21 Mr Drewett represented the applicant at the hearing. His submissions were essentially that the events of 31 July 2000 were the result of a misunderstanding. Prior to those events Mr Hamed never had any problems with the law and he has no criminal convictions. Mr Hamed has suffered financially as a result of the revocation of his firearms licence. He was upset by the incident and he has learned from the experience. He disputed the finding that he is not a fit and proper person to hold a firearms licence.

Commissioner’s submissions

22 The Commissioner relied on the reasons provided in relation to the decision made following the Internal Review. His submission was that the decision was correct for the reasons given.

23 The Commissioner’s submission was that provisions in the Act and the Regulation provide a basis for the Commissioner to revoke Mr Hamed’s firearms licence. Section 24(2)(a) of the Act provides that the Commissioner of Police may revoke a firearms licence for any reason for which the licensee would be required to be refused licence of the same kind.

24 Clause 69(2) of the Regulation states that a security guard who possesses a firearm must undertake, at least once a year, such continuing firearms safety training courses as may be approved. Clause 96 of the Regulation provides for approved firearms safety training courses that are prescribed for the purposes of-the Act.

25 Section 24(2)(c) of the Act provides that the Commissioner of Police may revoke a firearms licence if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence.

26 Clause 17 of the 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 issued to continue to hold it.

27 It was submitted that Mr Hamed does not possess, and has not possessed since 3 April 1999, a current Firearms Accreditation Certificate for category H firearms as required by Clause 69(2) of the Regulation.

28 The Commissioner further submitted that the Act calls for strict controls to be exercised in determining the fitness of individuals who seek to be licensed. The concept of 'fit and proper' includes a person's moral integrity and rectitude of character so that they can be trusted by the public to hold the relevant licence (Ex parte Meagher (1919) 336 WN(NSW) 175 at 179).

29 In the circumstances of the events of 31 July 2000 Mr Hamed had been unwilling to co-operate and became aggressive and violent as the incident progressed. The fact that Mr Hamed wrestled with a police officer and had to be restrained with the help of OC spray and handcuffs after a minor traffic infringement, suggests a lack of moral integrity.

30 Regarding the issue of 'fit and proper' 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. This 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: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380.

31 In regard to the issue of public interest the Commissioner submitted that the protection and welfare of the community outweighs Mr Hamed’s individual desire to be the holder of a firearms licence.

Findings of fact

32 Merits review cases at the federal level have held that “... where the exercise of the power is not founded on a criminal conviction, then even if the conviction be relevant, a challenge may be made to the essential facts on which it was based." ( Saffron v Federal Commissioner of Taxation (No 2) (1991) 102 ALR 19; Ridley v Secretary, Department of Social Security (1993) 29 ALD 726 at 731). However in this case, while he did not agree completely with the facts detailed on the Fact Sheet, Mr Hamed did not seek to fundamentally challenge the facts as alleged. He only denied the allegation that he had prevented Police from opening the door of the police vehicle.

33 No transcript of the proceedings in either the Local Court or the District Court was in evidence, however it was not disputed that the offences for which Mr Hamed was charged were found proven. In the light of those findings I find that Mr Hamed resisted and hindered the police in the manner described in the Fact Sheet and as referred to above. These actions were Mr Hamed’s response to a disagreement about a traffic ticket.

34 On 10 August 2000 Mr Hamed’s firearms licence was suspended. On 28 November 2000 in Burwood Local Court Mr Hamed’s was convicted of Resist or hinder police officer in the execution of their duties and Resist officer in execution of duty for which he was fined $200 on each charge. On 24 January 2001 the Parramatta District Court, upon appeal, found the offences were proved and dismissed under section 10 of the Crimes (Sentencing Procedure) Act 1999. On 13 February 2001 Mr Hamed’s firearms licence was revoked.

35 I find as a fact that Mr Hamed does not possess, and has not possessed since 3 April 1999, a current Firearms Accreditation Certificate for category H firearms.

Reasons and decision

36 With respect to the issue of Mr Hamed’s failure to possess a current Firearms Accreditation Certificate for category H firearms, I am satisfied on the evidence before me that Mr Hamed undertook the required firearms safety training to obtain the required Accreditation Certificate. I also accept that Clause 69(3)(b) of the Regulation imposes an obligation on a person who employs security guards, to report to the Commissioner when a security guard who possesses a firearm has completed the required training.

37 Notwithstanding that obligation imposed on the employer, it would have been prudent for Mr Hamed to have ensured that his employer notified the Commissioner that Mr Hamed had undertaken the required firearms safety training and to have taken the necessary steps to acquire a current Firearms Accreditation Certificate.

38 As the Commissioner pointed out, the assessment of whether a person is a fit and proper person to hold a licence was discussed in Australian Broadcasting Tribunal -v- Bond (1990) 94 ALR 11 at 56 per Toohey and Gaudron JJ at 56:
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.


39 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 Hamed is a fit and proper person to hold a licence consideration must be given to the circumstances which lead to his being charged and the offences being proven. The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Hamed would not pose a risk to public safety if he had access to firearms.

40 The factors which suggest that Mr Hamed’s would pose a risk to public safety if he had access to a firearms licence are that after being stopped by police in relation to a minor traffic incident Mr Hamed had been unwilling to co-operate and became aggressive and violent as the incident progressed. He wrestled with a police officer and had to be restrained with the help of OC spray and handcuffs.

41 The factors that suggest that despite Mr Hamed’s conduct, he would not pose a risk to public safety if he had a firearms licence are as follows:

· Mr Hamed has never been convicted of any criminal offences;
· he has held a firearms licence for approximately 3 years without coming to the attention of police;
· he showed some regret over his actions and said that nothing like that would happen again.
42 Weighing up all the factors, I am satisfied that the Commissioner made the correct and preferable decision in revoking Mr Hamed’s licence based on his opinion that Mr Hamed is no longer a fit and proper person to hold a licence. Despite the fact that Mr Hamed is otherwise of good character, the incident revealed behaviour which convinces me that, at least for the time being, Mr Hamed should not be extended the privilege of possessing or using a firearm.

43 The third submission on which the Commissioner relied was 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 issued to continue to hold it. Having come to the view that the Commissioner made the correct and preferable decision to revoke Mr Hamed’s licence under s 24(2)(c), it is not necessary for me to determine whether the decision was also justified under s 24(2)(d) and Clause 17 of the Regulation. However, given the connection between the question of whether a person is a fit and proper person to hold a licence and the question as to whether he or she would pose a risk to public safety, I am satisfied that the Commissioner’s decision was also justified pursuant to public interest considerations.

44 These conclusions do not prevent Mr Hamed from applying for a firearms licence in the future. When Mr Hamed has demonstrated an ability to control his anger without resorting to the type of behaviour which he exhibited on 31 July 2000, the Commissioner may be satisfied that he can again be afforded the privilege of firearms possession and use without risk to public safety.

45 In my view, given the strict controls on the possession and ownership of firearms which the Act and Regulations reflect, the Commissioner made the correct and preferable decision in revoking Mr Hamed’s licence.

Order

The Commissioner’s decision to revoke Mr Hamed’s firearms licence is affirmed.