Helou v Commissioner of Police, NSW Police Service

[2003] NSWADT 124

CITATION:	Helou v Commissioner of Police, NSW Police Service [2003] NSWADT 124
DIVISION:	General Division
PARTIES:	APPLICANT Niaze Helou RESPONDENT The Commissioner of Police, New South Wales Police Service
FILE NUMBER:	023279
HEARING DATES:	04/04/2003
SUBMISSIONS CLOSED:	04/04/2003
DATE OF DECISION:	05/29/2003
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal Matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Firearms (General) Regulation 1997 Firearms Act 1996 Home Building Act 1989
CASES CITED:	Cook v Commissioner of Police, NSW Police Service (2003) NSWADT 30 Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 Kioussis v Director General, Department of Fair Trading (2002) NSWADT 2 Whiteman v Commissioner of Police, NSW Police Service (2002) NSWADT 179 Ward v Commissioner of Police, NSW Police Service (2000) NSWADT 28 Police v Toleafoa (1999) NSWADTAP 9 O'Sullivan v Farrar (1989) 168 CLR 210
REPRESENTATION:	APPLICANT B Haverfield, Barrister RESPONDENT C Capper, Solicitor
ORDERS:	1. The Commissioner's decision to revoke Mr Helou's category A, B and H firearms licence is affirmed.

1 On 9 December 2002, Mr Niaze Helou, lodged an application with the Tribunal seeking review of the decision, made by a delegate of the Commissioner of Police (“the Commissioner”), to revoke his category A, B and H firearms licences.

2 The basis on which the Commissioner revoked Mr Helou’s firearms licence was an incident that occurred on Monday 23 October 2000 when the police detained a Mr Bols and found that he was carrying a loaded Smith & Wesson .357 magnum revolver in a holster attached to his belt in the small of his back. The revolver was registered in the name of Mr Helou and Mr Bols was not the holder of a firearms licence. Following a police enquiry into the incident, on 19 March 2001, the police charged Mr Helou with an offence of not keeping his firearms safely, and a charge of allowing an unauthorised person to possess a firearm.

3 The hearing relating to the charges made against Mr Helou were heard almost 2 years later, at the Local Court at Bankstown, on 4 June 2002. The charge in respect of failing to keep his firearms safely was not proceeded with. However, on that day, the Magistrate hearing the matter dismissed the remaining charge that had been laid against Mr Helou.

4 On 23 August 2002 the Commissioner issued and served a Notice of Suspension of Mr Helou’s firearms licences. In that Notice of Suspension the Commissioner stated that in his opinion the licences held by Mr Helou should be revoked on the grounds that he was not a “fit and proper person” to hold a firearms licence and that it was “not in the public interest” for him to hold such licences. On this date Mr Helou surrendered his licences and signed over his four registered firearms to the South Western Sydney Firearms Range for acquisition.

5 On 27 September 2002, the Commissioner issued a revocation notice to Mr Helou in respect of his firearms licences. The grounds on which the licences were revoked were stated to be as follows:

(a) the Commissioner considered that it was not in the public interest for Mr Helou to continue to hold the licences (clause 17 – Firearms (General) Regulation 1997 ); and

(b) Mr Helou had contravened a provision of the Firearms Act (section 24(2)(b)(ii) Firearms Act). In this regard the Commissioner found that Mr Helou had failed to take all reasonable precautions to ensure that his firearms did not come into the possession of a person who was not authorised to possess the firearms (section 39(1)(c) Firearms Act).

6 After being served with the Notice of Revocation, Mr Helou sought an internal review. On 4 November 2002, the Commissioner completed his internal review and affirmed the earlier decision. In the statement of reasons, the Commissioner only relied on the grounds that he considered that it was “not in the public interest” for Mr Helou to continue to hold the licences with which he had been issued.

JURISDICTION

7 The Tribunal has jurisdiction to hear Mr Helou’s application by virtue of s.75(1)(c ) of the Firearms Act, 1996 (“The Firearms Act”), and s.38 of the Administrative Decisions Tribunal Act, 1997.

RELEVANT LAW

8 The Firearms Act sets out a scheme for licensing people to possess and use firearms. The principles and objectives of the Act are set out in s.3. So far as is relevant, this section provides as follows:

“3 Principles and objectives of Act

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety:
(i) by imposing strict controls on the possession and use of firearms, and
(ii) by promoting the safe and responsible storage and use of firearms, and
…………”

9 Section 24 sets out the circumstances in which the Commissioner can revoke a licence. That section, so far as is relevant, provides as follows:

“24 Revocation of licence

(1) …
(2) a licence may be revoked:

(a) …, 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) …, or
(c) ….
(d) for any other reason prescribed by the regulations”.

10 Section 40 of the Firearms Act sets out the requirements for the safe keeping of a firearm to which a category AB licence applies when the firearm is not actually being used or carried. Section 41 of the Firearms Act sets out the safe keeping requirements for the safe keeping of a firearm to which a category C, D and H licence applies. Each of these sections prescribe the type of receptacle the firearm is to be stored in and the type of lock the receptacle is to contain.

11 A failure to comply with the abovementioned safe keeping requirements constitutes an offence, which is punishable by a fine and a maximum term of imprisonment (ss. 40(2) and 41(2) Firearms Act).

Contravention of the Firearms Act

12 Section 39(1)(a) of the Firearms Act provides that a person who possesses a firearm must take all reasonable precautions to ensure its safe keeping. A person who contravenes the requirement contained in this section commits an offence, which is punishable by a fine and or a maximum period of imprisonment of 2 years.

General requirement

(1) A person who possesses a firearm must take all reasonable precautions to ensure:

(a) its safe keeping, and
(b) that it is not stolen or lost, and
(c) that it does not come into the possession of a person who is not authorised to0 possess the firearm
(2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.

13 No regulations have been made pursuant to s. 39(2) of the Firearms Act.

Public Interest

14 Clause 17 of the Firearms (General) Regulations, 1997 prescribes the following in respect of s.24(2)(d) of the Firearms Act:

“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”.

15 Mr Haverfield, on behalf of Mr Helou, tendered into evidence the following material:

The transcript of a record of interview between Mr Helou and Senior Constable Broome at Bankstown Police Station on 30 October 2000

The transcript of the Local Court proceedings of 4 June 2002. This transcript includes the examination-in-chief and cross-examination of Mr Helou, his father and Ms Wehbee; and

A copy of the record of attendance of Mr Helou at the Great Western Pistol Club.

16 Mr Haverfield, who appeared on behalf of Mr Helou, also called Mr Helou to give evidence.

17 Mr Capper, on behalf of the Commissioner relied on the material contained in the brief of evidence that had been previously filed with the Tribunal and served on Mr Helou. Included in that brief of evidence was an extract of the Magistrate’s decision in respect of the charges that had been laid against Mr Helou together with the submissions made on behalf of Mr Helou by his solicitor in respect of the internal review.

18 The following facts are not disputed:

(a) Mr Helou lives at home with his parents and his brother and sister.

(b) He is a motor mechanic and runs 1 of the 8 service stations owned by his father.

(c) Mr Helou is the registered owner of two pistols and two rifles. In 1999, his father gave him his Smith & Wesson revolver, which he had owned for many years previously.

(d) Mr Helou stored his rifles in a safe that was located upstairs in his bedroom and which was bolted to the floor. This particular safe complied with the requirements of the Firearms Act. Mr Helou was at all times the only custodian of the keys to this safe.

(e) The pistols (including the Smith and Wesson revolver), to which the category H firearms licence related, were stored in an in-ground safe that was located downstairs in the walk in wardrobe of his parents. His parents had had this safe for 20-24 years and his father had previously used it to store his firearms. Access to that safe was gained by a key, which was stored in one of Mr Helou’s socks that was located in the back of a drawer on his mother’s side of the walk-in wardrobe.

(f) Mr Helou and his father knew where the key was stored.

(g) The safe, in which the pistols were stored, was also used to store family jewellery and money.

(h) Mr Helou stored the ammunition for his pistols in a separate compartment in the safe, which contained his rifles. He also stored some ammunition in a metal suitcase that was located in his bedroom.

(i) On Monday, 23 October 2000, at about 3.45pm, the police followed a white Toyota Lexus, driven by Mr Bols, to the Helou Service Station on the corner of Punchbowl Road and Canterbury Road. This service station is where Mr Helou father’s office is located. Mr Bols had worked for Mr Helou’s father for some considerable period of time and he was known to Mr Helou who had seen him at his home on several occasions. On 23 October 2002, when the police searched Mr Bols they found that he was carrying Mr Helou’s Smith & Wesson revolver. Mr Bols was not licensed to carry such a revolver.

19 A fact in issue in this application and also before the Magistrate, who heard the criminal charges that had been laid against Mr Helou, was the question of how Mr Bols came to have possession of Mr Helou’s revolver and whether Mr Helou knew or ought to have known that the circumstances surrounding the storage of the revolver were such that it would or may come into the possession of an unauthorised person, including his father and Mr Bols.

20 In this regard, it appears that Mr Bols, who participated in a record of interview on the day that he was searched, stated that Mr Helou’s father had given him the revolver in his office just prior to him escorting Mr Helou’s father’s secretary to the Commonwealth Bank to do the banking for the business.

21 However, at the hearing before the Magistrate, Mr Bols stated that he had gone with Mr Helou’s father to his home, where Mr Helou’s father opened the safe located in the walk-in robe of his bedroom. He also stated that after Mr Helou’s father opened the safe he asked Mr Bols to get out the money from the safe. He went on to state that while he was taking out the money he saw the revolver and took it without permission and without the knowledge of Mr Helou’s father.

22 During the evening of 23 October 2000, the police returned to the Punchbowl service station of Mr Helou’s father and spoke to him. The police state that during this conversation Mr Helou’s father told them that he had given Mr Bols the loaded revolver so that he could escort his secretary to do the banking for the business. At the hearing before the Magistrate, Mr Helou’s father denied that he had made such a statement. Instead, he stated that Mr Bols had contacted him that particular evening and told him that he had lied to the police during his record of interview and that he had in fact taken the revolver without Mr Helou’s father’s knowledge when he was asked to remove the money from the safe. Mr Helou’s father, who had been the holder of a gun licence for almost 24 years, went on to state at the hearing before the Magistrate that, on 23 October 2000, he went with Mr Bols to his home to pick up the money that he had placed in the safe over the weekend, believing that his son had removed the revolver from it. He stated that he got the key from the sock, opened the safe and went into the bedroom and asked Mr Bols to take the money from the safe. He explained that the walk-in wardrobe was too small for two people at one time, particularly when one person was getting something from the safe.

23 In his judgment, the Magistrate hearing the charges that had been laid against Mr Helou and his father, made the following findings of fact in relation to the circumstances in which Mr Bols came to have possession of Mr Helou’s revolver:

“…I….find – that on 23 October Mr Hamid Helou did cause and knew that Fidel Bols accessed the pistol to escort money to the Bank. I am satisfied that he assisted in Mr Bols getting access to that pistol, whether that be – and I am not sure whether Mr Bols took it out of the safe himself or not – but I am satisfied that Mr Helou knew that he was getting this pistol, that it was for security purposes and that he was going to use it to escort this lady, Therese, to the bank.

And I am satisfied that when Mr Bols was found with this pistol, that Mr Hamid Helou did say what he said to the police in circumstances that what he said to the police was the truth at the time”.

24 That is, he found that Mr Helou’s father had given the revolver to Mr Bols.

Knowledge of Mr Niazi Helou

25 In a record of interview, on 30 October 2000, Mr Helou stated the following:

On the evening of 23 October 2000, his father told him that Mr Bols had taken his revolver from the safe in the walk-in robe.

The last time he used his revolver was when he attended the Great Western Pistol Club – this could have been the 18th or even the 4th of October. He attends the Pistol Club every second Wednesday.

He gave no person permission to use his revolver, including his father.

Since 23 October 2002, he had not checked either safe to see if any of his other firearms were missing. He had two pistols in the downstairs safe, a 22 Phoenix and the Smith & Wesson. His father had told him that the Phoenix was still in the safe.

26 When giving evidence before the Magistrate, on 4 June 2002, Mr Helou stated that on some occasions, his father would store takings from the service stations in the safe. He stated that when he did this, Mr Helou would take his pistols from the safe and store them at the Great Western Pistol Club, where he was a member.

27 He went on to state that on the Monday or Tuesday of the week proceeding 23 October 2000, he had received a telephone call from his father requesting that he remove his pistols from the safe as he wanted to use the safe over the weekend to store money in it. Mr Helou stated that he agreed to do this, however, on 18 October 2000 when he attended the Great Western Pistol Club, he forgot to leave his pistol there and returned them to the safe. On the Thursday or Friday of that week he telephoned his father’s secretary, Therese, and asked her to pass a message on to his father that she should: “pass on a message to Dad not to use the safe because I haven’t left the guns at the Gun Club”. He did not see his father after this as he went away for the weekend with his girlfriend.

28 At the hearing before the Magistrate, on 4 June 2002, Therese Wehbee gave evidence, which supported that which had been given by Mr Helou.

29 In his judgment, the Magistrate stated that he was satisfied that Mr Helou did not know that his father had given Mr Bols his revolver and that he believed the revolver and pistol were secured properly and that his father would not access the safe when they were being stored in there. The Magistrate made these findings on the basis of Mr Helou’s evidence that he trusted his father not to use the safe while his firearms were stored in there.

30 At the hearing before the Tribunal, Mr Helou gave evidence along similar lines to that which he had given before the Magistrate. However he was not so clear when it came to the day on which he received the telephone call from his father and whether this was before or after his regular fortnightly Wednesday attendances at the Great Western Pistol Club. What he did state was that he forgot to remove the revolver from the safe prior to that weekend, knowing that his father wanted to use it to store money in it.

Other Criminal History

31 The police brief contained a criminal history for Mr Helou. Included in that history were two charges of owning a dog, which attacked another person – dangerous dog. The charges were laid on 1 April 2001, which was about two weeks after he had been charged in respect of the Firearms Act offences.

32 On 3 September 2001, Mr Helou was found guilty of the two dangerous dog charges at the Liverpool Local Court and was fined $100 and ordered to pay Court costs of $58.

33 In giving his evidence before the Tribunal, Mr Helou stated that at that particular time there were two dogs at his home, which were owned by his brother. On the day in question the dogs got out and attacked a kitten. Only his mother and he were at home and he decided to put his hand up and acknowledge responsibility for the dogs. Since that time both dogs have been put down.

SUBMISSIONS

34 Mr Haverfield, who appeared on behalf of Mr Helou, submitted that the Commissioner could not rely on s. 24(2)(b)(ii) of the Firearms Act as a basis of revocation as there had been no finding by the Magistrate that Mr Helou had contravened the Act or its regulations.

35 He also submitted that the charges, which related to having a dangerous dog were not relevant to this application. Even if they were relevant they were not of sufficient seriousness to warrant the revocation of his licence.

36 In any event, it was Mr Haverfield’s submission, that Mr Helou had taken all reasonable precautions to ensure the safe keeping of his firearm. That is, as found by the Magistrate, he trusted his father to adhere to the agreement they had reached in that his father would not use the safe unless he had made arrangements with Mr Helou to remove his firearms. It was further submitted that the Tribunal could be confident that Mr Helou now appreciates the need to be the sole custodian of the key to the safe and that in future he will ensure the safe storage of his firearms by securing another safe for which he holds the key. Accordingly, there would be no risk to the public.

37 Mr Capper, who appeared on behalf of the Commissioner, submitted that the fact that a person had not been convicted or found guilty of an offence under the Firearms Act did not prevent the Tribunal from finding, on the balance of probabilities, that the person had contravened the Act. In this case, he submitted the Tribunal could be so satisfied as a reasonable precaution would not include giving an unauthorised person access to the key of the safe in which firearms are stored. He emphasised the objectives of the Act in that Mr Helou’s right to have a firearm is a privilege and he argued that the decisions of the Tribunal in Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 and Cook v Commissioner of Police, NSW Police Service [2003] NSWADT 30 had held that there must be virtually no risk to the public in order for Mr Helou to retain his licences.

REASONS FOR DECISION

38 In this application, there is no question that Mr Helou stored his firearms, in the requisite locked receptacle or locked steel safe with the requisite locking system, in accordance with the requirements set out in ss.40 and 41 of the Firearms Act.

39 What is in issue is:

(a) whether s.24(2)(b)(ii) of the Firearms Act only applies to those circumstances where a contravention of a provision of the Act or the Regulation is or has been proved to the criminal standard of proof of beyond reasonable doubt. Alternatively, does the sub-paragraph apply to circumstances where a contravention is proved to the civil standard of proof of on the balance of probabilities?

(b) If the answer to (a) above is that the sub-paragraph applies to circumstances where a contravention is established on the civil standard of proof; is the Tribunal able to go behind the findings of the Magistrate and make a finding that Mr Helou has nevertheless contravened the Act?

(c) If the answer to (b) above is yes; do the circumstances surrounding Mr Helou’s contravention warrant the revocation of his licences?; and

(d) Do the circumstances surrounding Mr Helou’s conduct warrant the revocation of his licences on grounds that it is not in the public interest for him to continue to be the holder of a licence?

40 As mentioned above, s. 24(2)(b)(ii) of the Firearms Act provides that the Commissioner may revoke a licence where the licensee “contravenes any provision of this Act or the Regulations, whether or not the licensee has been convicted of an offence for the contravention, …”.(emphasis added)

41 The term “contravene” is defined in the Macquarie Dictionary (Second Edition) to mean: “to violate, infringe or transgress: to contravene the law.” Accordingly, applying its ordinary meaning to s. 24(2)(b)(ii) of the Firearms Act a contravention of a provision of that Act would include any established infringement. With the addition of the words “whether or not the licensee has been convicted of an offence for the contravention”, Parliament has made it expressly clear that a contravention is not limited to those circumstances where the licensee has been convicted of an offence against the Act or the Regulations. It would include circumstances where a person has been found guilty, with no conviction having been entered, of such a contravention. Such a finding would be on the criminal standard of proof.

42 The question is whether the sub-paragraph should be interpreted so as to limit its operation to these circumstances, i.e. conviction and a finding of guilt without a conviction having been entered.

43 In my opinion, such a limiting interpretation is not supported by the purposes for which s. 24(2) of the Firearms Act has been enacted and the overriding principles and objectives of the Act. The purpose of s. 24(2) is to vest the Commissioner with a power to revoke a firearms licence. It is a discretionary power and must be exercised in accordance with the principles and objectives of the Act. These are set out in s.3, which provide that possession and use of a firearm is a privilege and is conditional on the overriding need to ensure public safety.

44 Accordingly, the Commissioner’s power in s. 24(2) of the Firearms Act is a protective one. That is, a power to protect public safety and not a power to punish and impose a penalty on the licence holder.

45 If sub-paragraph 24(2)(b)(ii) of the Firearms Act were limited as suggested by Mr Haverfield, it would alter the balance of the overriding objective of public safety and severely limit the Commissioner’s power to revoke a licence in circumstances where a contravention can be established, on the balance of probabilities, and where a criminal prosecution for that contravention has not or can not be instituted, or proved to the higher standard of beyond reasonable doubt.

46 Accordingly, in my opinion, the Commissioner is able to invoke the provisions of s. 24(2)(b)(ii) of the Firearms Act where he is satisfied, on the civil standard of proof, that the licensee has contravened a provision of the Act or the Regulations. However, the Commissioner, in determining whether there has been a contravention he is bound to have regard to the following principle stated by Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 in respect of proof of contraventions or offences in civil proceedings:

“When, in civil proceedings, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues … But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.”

47 As mentioned above, the only charge with which the police proceeded against Mr Helou was in respect of the charge of not taking “all reasonable precautions” to ensure that his firearm did not come into the possession of a person who was not authorised to possess it, contrary to s.39(1)(c) of the Firearms Act.

48 The Magistrate in his decision clearly stated that his task was to determine whether the prosecution had proved beyond reasonable doubt the matters alleged in the charge laid against Mr Helou. One of those matters, or elements of the contravention, that needed to be proved by the prosecution, was the allegation that Mr Helou did not “take all reasonable precautions”.

49 In making his findings in this regard the Magistrate stated (at p.11) as follows:

“I have to determine whether the prosecution have proved beyond reasonable doubt that he possessed a firearm and that he did not take all reasonable precautions to ensure that it did not come into the possession of a person who is not authorised to possess the firearm.

….quite often people leave keys with people – in case there house gets broken into but they don’t expect that person to get hold of the key, go into the house and break into the house and do things. Somewhere along the line there has got to be a sensible approach to these sorts of things. And, looking at what the criminal law intends to prevent in relation to these matters, the fact this key was hidden, that the owner of the house and the father in a father relationship, a trusting relationship of people of very good character, the fact that that situation has created a situation where Mr Niazi Helou is before the Court, has to be taken into account in determining whether he took reasonable precautions in the circumstances, what would the law require him to do?

And I am not, in that respect, therefore, satisfied beyond reasonable doubt that he did not take all reasonable precautions in the circumstances to ensure that the item did not come into the possession of a person not authorised to possess that firearm”.

50 The Magistrate’s finding in regard to this element is what is in dispute before the Tribunal. The effect of Mr Capper’s submission is that the Tribunal should consider the matter a fresh, by applying the civil standard of proof. In that regard he submitted that Mr Helou’s actions in giving his father access to the safe by leaving the key in the walk-in wardrobe established that Mr Helou did not take the requisite “ all reasonable precautions”. Implicit in this submission was the suggestion that a reasonable precaution for the purposes of s. 39 of the Firearms Act was that licence holders should at all times retain possession of the keys to the safe in which they store their firearms. Had there been regulations specifying such a requirement, pursuant to s. 39(2) of the Firearms Act, the Magistrate may have made a different finding.

51 While I agree with some of the matters raised by Mr Capper, the question is whether the Tribunal is able to go behind the findings of the Magistrate and come to a different conclusion.

52 The Tribunal notes that the Magistrate made his findings in regard to the allegation of the fact that Mr Helou did not take “all reasonable precautions” on the basis of the undisputed facts that Mr Helou’s father, a person whom Mr Helou trusted, had access to the key to the safe, that he was not authorised to possess the firearms that were in the safe in his wardrobe, that Mr Helou had been asked to remove the firearms from the safe so that his father could use it, that Mr Helou had not removed the firearms as requested and that he had telephoned his father’s secretary and asked her to pass a message on to his father advising him of this. The Tribunal has the same undisputed facts before it.

53 The general question of whether the Tribunal is bound by findings of fact, found by another court or tribunal, which are also matters on which the Tribunal is to make a finding, was considered by the Deputy President, in Kioussis v Director General, Department of Fair Trading [2002] NSWADT 2. In that decision, at [47] and [48] she stated the following:

“47. Many of the matters in issue in these proceedings have been the subject of previous findings by other courts and tribunals. The general rule is that evidence of any finding of fact, including those relating to credit, are not admissible to prove the existence of a fact in issue in these proceedings. Section 91 Evidence Act 1995 provides that:
(1) Evidence of the decision, or a of a finding of fact, in an Australian or overseas proceedings is not admissible to prove the existence of a fact that was in issue in that proceeding

(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

48. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: ADT Act s. 73(2). Even so, the Tribunal must make its decisions based on logically probative evidence. The rules of evidence as set out in the Evidence Act 1995 provide a guide as to evidence that will tend to be reliable and relevant.”

54 In that case, the Deputy President decided to admit evidence of findings of fact by previous courts and tribunals as the decision maker in those courts and tribunals had more recent and comprehensive evidence before him/her. These findings were not findings of fact that resulted in a finding of guilt in respect of the commission of an offence by Ms Kioussis. They were adverse findings in respect to Ms Kioussis’s honesty and integrity in business deals that she had been involved in.

55 Furthermore, the issue to be determined by the Deputy President in that case was whether Ms Kioussis was a fit and proper person to be granted a qualified supervisors certificate under the Home Building Act 1989 having regard to the adverse findings. Had she been found guilty of an offence of dishonesty, the fact of such a finding would be a relevant matter to consider in the determination of her fitness and propriety to be issued with the certificate or licence for which she had applied. Furthermore, the Tribunal would not go behind the proven facts on which the conviction was based, but would consider all the circumstances surrounding the conviction in making its determination.

56 In this case, there is a preliminary issue to be determined; namely, whether Mr Helou has in fact contravened s.39(2) of the Firearms Act, notwithstanding that the magistrate determined that no offence had been committed.

57 As I have already mentioned there is no dispute on the underlying facts on which the Magistrate made his decision. The only area of dispute is whether these facts were such that Mr Helou had failed, on the balance of probabilities, to take “all reasonable precautions” as required under the Firearms Act. Furthermore, it must be shown that he intentionally or knowingly failed to take “all reasonable precautions”.

58 In my opinion, in this regard, the evidence before the Tribunal is not such that it can make a finding contrary to that found by the magistrate, even on the civil onus of proof. It has only heard the oral evidence of Mr Helou, which was similar to that he had given before the magistrate. Furthermore, Mr Capper for the Commissioner, did not object to the transcript evidence of the hearing before the magistrate that was tendered in this application.

c) Revocation on grounds of a contravention

59 As I have formed the opinion that the evidence does not establish a contravention of s. 39(2) of the Firearms Act, the issue of whether the contravention warrants the revocation of Mr Helou’s licence does not arise.

d) Public Interest – cl 17

60 The concept of “public interest” has been considered by this Tribunal in several decisions (e.g. Whiteman v Commissioner, New South Wales Police Service [2002] NSW ADT 179: Ward v Commissioner of Police, New South Wales Police Service [2000] NSW ADT 28 and Police v Toleafoa [1999] NSW ADT AP 9). In Toleafoa the Appeal Panel stated at [25] that the public interest is:

“…an inherently broad concept giving the Appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual as the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.”

61 The phrase ‘in the public interest’ was considered by the High Court in O’Sullivan v Farrar (1989) 168 CLR 210. In a joint judgment Mason CJ, Brennan J, Dawson J and Gaudron J stated at 216:

“… the expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and scope and purpose of the statutory enactments may enable… ”

62 In Ward, the Deputy President held that the ‘public interest’ in relation to the holding of a firearms licence related to the objects and principles set out in s.3 of the Firearms Act. This means that Mr Helou’s conduct, regardless of whether it amounted to a contravention of the Act, must be considered in the light of the over-riding public interest of public safety.

63 In my opinion, Mr Helou’s conduct, of storing his firearms in a safe to which his father had access, is such that he has put public safety at risk and he has done so, not only on 23 October 2000 but, since he became the holder of a category H firearms licence, on 18 November 1998. The storage of his revolver and pistol in the safe in his father’s wardrobe was clearly done as a matter of convenience as his father had previously stored the revolver there. However, at the time he was issued with his category H licence, Mr Helou had already been the holder of a category B and A firearms licence. The first licence was issued on 27 February 1998 and Mr Helou was well aware of the need to ensure that he did not place the public at risk when using or storing his firearms. In this regard, Mr Helou gave evidence that his other firearms were stored in a steel container, in compliance with the Firearms Act, and that only he had the key to it. He should have done the same in respect of the firearms stored in the safe of his parent’s wardrobe.

64 The Firearms Act is very specific as to the type of receptacle a firearm is to be stored in when it is not in use and that the receptacle is to be fitted with a prescribed lock. There is no question that Mr Helou was aware of these requirements. And commonsense would indicate that the key to such receptacle must be kept in a manner such that it does not come into the hands of a person who is unauthorised to possess a firearm, otherwise it would render the strict storage provisions of limited effect. There was no reason why Mr Helou could not have retained the key for the safe in his parent’s wardrobe, just as he had retained the key to the safe in his own room. This would not have prevented his father from using the safe, as he had done on the weekend before 23 October 2000. However, his father’s use of the safe would be dependent on Mr Helou personally giving him the key. Had he adopted this particular system, the events that occurred on 23 October 2000 would not have happened as on Mr Helou’s own evidence there was no opportunity for him to remove the firearms and to see his father and give him the key. That is, his father would have had no access to the safe.

65 I do not agree with Mr Haverfield’s submission that Mr Helou’s agreement with his father was such that Mr Helou’s conduct did not pose any risk to the public. As the legislation makes clear, it is Mr Helou’s responsibility to ensure that his possession of a firearm poses no risk to public safety. His agreement with his father did pose such a risk. The fact that he trusted his father not to use the safe did not excuse him of his responsibilities under the Firearms Act.

66 In respect of Mr Helou’s conduct, the Tribunal is also concerned about two additional matters. The first matter relates to his conduct, just prior to 23 October 2000, when his father asked him to remove the firearms from the safe in his wardrobe so that he could use the safe to store money in. Mr Helou’s evidence is that he agreed to do this. Having made the agreement, it was his responsibility to ensure that it was done. When he had been unable to do so, or as the evidence would indicate, forgot to do so when he attended the pistol club the Wednesday before (18 October 2000), it was his responsibility to ensure that his father in fact knew that he had not done so and that he could not use the safe. However, Mr Helou was satisfied that he had done all that he could by leaving a message with his father’s secretary. In my opinion, this was not sufficient in order for him to absolve himself of his responsibilities as required by the objectives of the legislation.

67 The other matter of concern is Mr Helou’s responses to questions during his record of interview on 30 October 2000, seven days after Mr Bols had been searched by police and found to be carrying his revolver. During this interview he made no mention of his father having contacted him and asking him to remove the firearms in the safe in his wardrobe. He also stated that, since the previous Monday, he had not looked into this safe or his other safe to see if his other firearms were missing. This in my opinion demonstrates a very cavalier attitude towards his understanding of his responsibilities as the holder of a firearms licence.

68 Finally, I have placed minimal weight on Mr Helou’s conviction for possessing dangerous dogs.

69 For the reasons stated above, the Tribunal is of the opinion the decision of the Commissioner to revoke Mr Helou’s category A, B and H firearms licences is the correct and preferred decision.

70 The Tribunal orders that the Commissioner’s decision to revoke Mr Helou’s category A, B and H firearms licences is affirmed.