HFV v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 165

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

HFV v Commissioner of Police, NSW Police Force [2025] NSWCATAD 165

Hearing dates:

21 and 22 August 2024

Date of orders:

14 July 2025

Decision date:

14 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

Administrative Law – firearms – firearms prohibition order – whether person ‘not fit, in the public interest’ – association with others who have serious criminal histories and involvement in organised crime

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Cases Cited:

Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194

Addison v Commissioner of Police, NSW Police Force [2019] NSWCATAD 99

Bassal v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 276

Bilanenko v Commissioner of Police [2022] NSWCATAP 279

Commissioner of Police, NSW Police Force v Bazzi & Ors [2021] NSWSC 1150

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

Dalziell v Commissioner of Police, NSW Police Force [2018] NSWCATAD 79

Elley v Commissioner of Police, NSW Police Force [2023] NSWCATAP 237

Fahma v Director of Public Prosecutions (NSW) [2021] NSWDC 329

Grant v Commissioner of Police [2020] NSWCATAD 158

Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43

Pochi v Minister for Immigration and Ethnic Affairs, (1979) 36 FLR 482

R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228

Ryan v Commissioner of Police, NSW Police Force [2024] NSWCATAP 38

Sciberras v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 206

Solomon v Commissioner of Police (NSW) [2021] NSWSC 236

Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156

Stealth Enterprises Pty Ltd v Calliden Insurance Ltd [2015] NSWSC 1270

Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149

Category:

Principal judgment

Parties:

HFV (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
J I Ghabrial (Applicant)
M Varley (Respondent)

Solicitors:
Cambridge Law (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2024/00058754

Publication restriction:

The contents of all paragraphs in these Reasons marked “[Not for publication]” are not to be published or released to the Applicant or the public.

Reasons for Decision

Introduction

1. This is an application by HFV (“the Applicant”) for review of a decision by a delegate of the Commissioner of Police, NSW Police Force (“the Respondent”). The Respondent’s decision, taken in June 2022, was to issue a Firearms Prohibition Order (“FPO”) under section 73(1) of the Firearms Act 1996 (“the Act”) against the Applicant.

2. The decision to make the FPO was an “administratively reviewable decision” for the purposes of section 53 of the Administrative Decisions Review Act 1997 (“the ADR Act”).

3. In August 2022 the Applicant sought an internal review of the FPO pursuant to section 53 of the ADR Act. In February 2024 the Respondent’s internal reviewer affirmed the decision to issue the FPO, noting that between 2015 and 2023 the Applicant had had numerous interactions with police and was found to be in the company of persons with lengthy criminal history and adverse dealings with police. The internal reviewer was of the view that the Applicant associates with persons who are known to police for serious criminal offending or involvement with criminal groups and found:

In considering your fitness, in the 'public interest', as required by Section 73 of the Act, it is my opinion that the abovementioned factors, give rise to serious concerns for public safety in the context of firearm possession. On that basis, I am satisfied that the making of an FPO against you is the correct and preferable decision.

4. The Applicant has applied to the Tribunal for an administrative review of the Respondent’s decision.

Jurisdiction of the Tribunal

5. Pursuant to section 75(1)(c) of the Act the Applicant may apply to the Tribunal to review the decision to impose an FPO.

6. In accordance with section 63 of the ADR Act the Tribunal is empowered to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any law, and may exercise all relevant functions conferred or imposed on the Commissioner. In determining the application, the Tribunal may affirm, vary or set aside the decision and make a decision in its place, or set aside the decision and remit the matter for reconsideration by the Commissioner in accordance with any directions or recommendations of the Tribunal.

7. In June 2024, the Tribunal made confidentiality orders pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (“the NCAT Act”) and section 59 of the ADR Act. The effect of those orders is that certain documents (the confidential material”) are restricted to the Respondent, the Respondent's legal representatives and the Tribunal.

The issues

8. The issues for determination are whether the Applicant is not fit, in the public interest, to have possession of a firearm and whether it is in the public interest for the FPO to be issued against the Applicant.

Applicable Legislation

9. Section 73(1) of the Act provides:

73 Firearms prohibition orders

(1) The Commissioner may make a firearms prohibition order against a person if, in the opinion of the Commissioner, the person is not fit, in the public interest, to have possession of a firearm.

10. As noted above, section 73 of the Act confers on the Respondent the power to issue a FPO if, in the opinion of the Commissioner, the person is not fit, in the public interest, to have possession of a firearm.

Not fit, in the public interest, to have possession of a firearm

11. In Addison v Commissioner of Police, NSW Police Force [2019] NSWCATAD 99, Senior Member Leal considered a number of authorities in relation to the meaning of the expression “not fit, in the public interest, to have possession of a firearm” as found in section 73(1) of the Act. She stated:

Not fit, in the public interest to have possession of a firearm

1. In determining what it means to be ‘not fit, in the public interest to have possession of a firearm’, I am assisted by the underlying principles of the Firearms Act that declare firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety.’ (s3(1) of the Firearms Act)

2. I am also assisted by those provisions of the Firearms Act which provide that a licence must not be issued:

3. unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace (s11(3));

4. if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that (a) the person is a risk to public safety and (b) the issuing of the licence would be contrary to the public interest. (s11(5A))

5. if it would be contrary to the public interest. (s11(7))

6. Although Mr Addison is not applying for a firearms licence or permit, I agree with the reasoning of Senior Member Walker who, in the decision of Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43, found that the approach illustrated by those licensing provisions in the Firearms Act is applicable by analogy when considering the power to issue a Firearms Prohibition Order.

7. In particular, I agree with Senior Member Walker that the language used ‘not fit, in the public interest’ – being materially different from the ‘fit and proper person’ test in the Firearm Act’s licensing provisions – implies that even though a person may have an unblemished record, public interest considerations may render the person unfit and make it appropriate to issue a firearms prohibition order against him or her.

8. As set out in Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, the concept of public interest allows for matters going beyond the applicant’s character to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration.

9. I agree with the following discussion of the public interest in Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149 at [31] that ‘given the breadth of the Commissioner’s discretion and the overriding object of public safety, there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence”:

10. In both Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43 and Dalziell v Commissioner of Police, NSW Police Force [2018] NSWCATAD 79, it was held that where an applicant voluntarily associated with persons having significant criminal histories or involvement with criminal organisations and activities, that association may create the danger to public safety with which the Commissioner is concerned and that person may therefore be not fit, in the public interest, to be in possession of a firearm. In those circumstances, a firearms prohibition order may be justified.

11. The NSW Court of Appeal has acknowledged that it is commonly recognized that outlaw motorcycle gangs are involved in criminal activities: Stealth Enterprises Pty Ltd v Calliden Insurance Ltd [2015] NSWSC 1270

12. The enactment of the Crimes (Criminal Organizations Control) Act 2012, which can limit the activities of certain outlaw motorcycle gangs for specific periods, indicates that the legislature regards the activities of outlaw motorcycle gangs and their members as a risk to public safety: Sciberras v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 206.

13. In Bassal v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 276, Senior Member Walker found that ‘where there is evidence demonstrating that an applicant is a member of an outlaw motorcycle gang whose members are known to have engaged in criminal activity but the applicant refuses to dissociate himself or herself from it, it is appropriate to refuse the applicant a firearms licence.’ In light of the overriding principles of the Firearms Act that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety, I agree with these findings.

    12. When considering the Applicant’s potential future conduct, the Tribunal may consider past conduct as a significant guide. In Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 Senior Member Scahill noted:

In Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194, the Tribunal reviewed a decision to refuse to issue a category AB firearms licence for the purpose of hunting. The applicant was a member of the Outcasts OMCG, and the Tribunal found that he had a continuing association with that group: at [78]. In upholding the decision to refuse Mr Adams’ firearms licence application, the Tribunal said, at [90], that:

"... Although there is no evidence that the applicant has personally engaged in any drug dealing, firearms trafficking, violence or similar criminal activities, he could, as the Respondent contends, come under pressure to make guns or ammunition available to members of the Outcasts if he continues to associate with them. On the basis of all the evidence, I find that the applicant is not a fit and proper person to be licensed to possess or use firearms"

And, at [98]:

"I have found that the applicant retains an association with the Outcasts and even now equivocates about whether he would remain a member if he were to accept that it is in fact an OMCG. He admits that he has made no effort to dissociate himself from the Outcasts. The Tribunal in Azzopardi has recognized that OMCG membership in itself entails a firearms risk. See Azzopardi v Commissioner of Police New South Wales Police Force [2013] NSWADT 205 Further, confidence in the firearms licensing system could suffer if its elaborate requirements failed to prevent the licensing of a person known to be associated with an organization having a propensity for violence and other criminal conduct."

13. In Commissioner of Police, NSW Police Force v Bazzi & Ors [2021] NSWSC 1150 Bellew J provided the following background in relation to OMCGs at paragraphs [4] – [5]:

The Comancheros Outlaw Motorcycle Gang Club

1. The Comancheros Outlaw Motorcycle Club (the Comancheros) is an outlaw motorcycle club gang (OMCG). OMCGs and their members consider themselves, and are considered by others, including their rivals, as “outlaws” who are not bound by the same laws as the rest of society. Their members advertise themselves as such by way of various indicia including patches, jewellery and tattoos, and defend their exclusive right to wear and display the indicia of the club to which they belong.

2. OMCGs generally have a hierarchical structure, and are governed by rules which are often enforced by violence. Their members are often involved in the commission of serious criminal activity including murder, drug manufacture, cultivation and distribution, organised property theft, fraud, violence, extortion, intimidation, riot, affray, corruption of justice and weapons-related offences. OMCGs are recognised by law enforcement agencies throughout Australia, and in various parts of the world, as organised criminal groups, the members of which pose a significant threat to public safety.

   14. As Basten J noted in Solomon v Commissioner of Police (NSW) [2021] NSWSC 236 from paragraph [33]:

3. ... There are three aspects of this provision which invite attention.

4. First, the criterion for engagement of the power is an “opinion of the Commissioner”. In this case it is, relevantly, an opinion formed by the adjudicator. Further, the opinion to be formed requires an assessment of the person against whom an order may be made, by reference to the public interest. The factors which may be taken into account are not expressly identified nor confined, but will be governed by the principles and objects of the Act, which indicate the purposes for which the power may be exercised. Those principles are set out in s 3(1) of the Act in the following terms:

5. Principles and objects of Act

6. 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—

1. by imposing strict controls on the possession and use of firearms, and

2. by promoting the safe and responsible storage and use of firearms, and

(c)    to facilitate a national approach to the control of firearms.

1. Accepting that the Commissioner must exercise his or her powers under s 73(1) for the purposes so defined in s 3(1), it remains clear that there will be matters of evaluative judgment of a kind which is difficult to analyse, namely whether an individual may in the future act irresponsibly if allowed access to a firearm.

...

1. The second aspect of the statutory scheme which must be noted concerns procedural obligations. ...

2. ... It was an operative order taking effect, and, as the plaintiff submitted, seriously reducing his liberty from warrantless searches, and limiting his privacy. ... The reasons also made reference to his “antecedents”, which no doubt included the convictions, but may not have been so limited. Thus, even if there was an obligation to notify the plaintiff of matters not relied on in making the initial order, it was clear that not all matters relied on had been listed in the reasons.

3. Thirdly, there is no statutory basis for considering the reasons given for the initial order as limiting the scope and function of the adjudicator on an internal review. The right to internal review arose under s 53 of the Administrative Decisions Review Act. The function of the reviewer was identified in s 53(5A) in the following terms:

4. Internal reviews

…

(5A)   Reviewer has functions of administrator In exercising a function under subsection (5), an internal reviewer is taken for all purposes to have the right to exercise the same functions under any relevant legislation or other law that the administrator had in making the decision being reviewed.

15. The FPO creates powers in favour of the NSW Police Force, including power to search premises occupied by a person who is subject to such an order. Section 74A in Part 7 of the Act provides:

Part 7–Firearms prohibition orders

…

74A    Powers of police to search for firearms in possession of person subject to firearms prohibition order

1. The powers of a police officer under this section may be exercised as reasonably required for the purposes of determining whether a person who is subject to a firearms prohibition order has committed an offence under section 74 (1), (2) or (3).

2. A police officer may:

(a)    detain a person who is subject to a firearms prohibition order, or

(b)    enter any premises occupied by or under the control or management of such a person, or

(c)    stop and detain any vehicle, vessel or aircraft occupied by or under the control or management of such a person,

and conduct a search of the person, or of the premises, vehicle, vessel or aircraft, for any firearms, firearm parts or ammunition.

1. In this section, "premises" includes any place, whether built on or not.

   16. There is no requirement that a police officer give a person who has been served with an FPO a reasonable opportunity to comply with the FPO before undertaking searches: Fahma v Director of Public Prosecutions (NSW) [2021] NSWDC 329 at paragraph [38].

Material before the Tribunal

17. The Respondent relies on the documents filed pursuant to section 58 of the ADR Act, the evidence of Detective Sergeant Emma Wells and both the non-confidential material presented at the open hearing, and confidential material presented in the 'closed hearing' pursuant to section 49 of the NCAT Act. Counsel for the Respondent provided confidential written and oral submissions.

18. The Applicant relies on his own affidavit evidence. He also relies on character references by Anthony Maatouk, Louis Saad and Raed Rahal.

19. Counsel for the Applicant provided written and oral submissions. Both DS Wells and the Applicant were cross examined at the hearing.

The Applicant’s Case

20. As noted, the Applicant provided an affidavit in which, amongst other things, he provided details of his wedding hire business, his activities within the motor trade and dealings with clients within that field. His evidence is that he has been running a lawful luxury car wholesale business for many years. He has also provided legitimate hire car services to many people over the years. He stated that he prides himself on being a valuable and contributing member of the community.

21. His evidence is that he does not own a gun or illegal weapons and has never seen, used or held a gun or any type of illegal weapon. He has never engaged in any conduct that relates to, or involves the use or possession of, guns or illegal weapons in any way.

22. In response to allegations that he associates with persons who are known to police for serious criminal offending or involvement with criminal groups he maintained that he does not have any associations that are criminal in nature. He stated that he has never been asked to engage in criminal activity and that if he was approached to engage in any criminal activity, he would not only say "no" but he would also report them to the police.

23. His evidence is that any dealings that he has had with customers have been in relation to his legitimate business activities. He conceded that he had occasionally heard rumours or gossip or reports that some of his customers may have had interactions with the police or run-ins with the law in the past. However, as he was only concerned about the business relationships he did not pry into backgrounds or personal lives.

20. He does not dispute a number of the Respondent’s records that indicate that he has been in the company of various people who are known to police for criminal activities. However, his evidence is that they are people that he has met through his wedding hire business and/or through his work buying and selling cars.

21. He does not dispute that he has been in the company of Moustafa Alameddine, Mohomed Alameddine, Rami Ghamrawie, Moustafa Ramlawie, and David Eskarous. However, he provided explanations for the Respondent’s records that refer to his associations with those individuals. He denied that he was engaging in any illegal conduct on any of those occasions. He denied that he has any associations with any Outlaw Motorcycle Gangs or any other criminal gangs or networks. He denied any suggestion that he has any such links or associations.

22. He explained that he works hard and, like any business owner, sometimes has to deal with customers that are known to the police. However, he maintained that this does not mean that he is a criminal, nor does it mean that he is open to influence to commit crimes in any way.

23. As noted, the Applicant has provided character references. Those references were admitted without objection and declare that the Applicant is a good and honest person and not the type of person to engage in criminal activities or have criminal associations. The authors indicate that they are aware of the Applicant’s business of buying and selling cars and his involvement in the hire car industry and explain that the nature of the business is that it is highly dependent on word-of-mouth referrals and repeat business.

24. The Applicant’s Counsel, Ms Ghabrial, provided written and oral submissions. She submitted that the Respondent did not challenge the Applicant’s affidavit evidence, and failed to cross examine the Applicant on many issues and much of the evidence contained in the Respondent’s material. Further, it is submitted that the Tribunal would have no difficulty finding that the Applicant was an honest, credible and trustworthy witness. Therefore, the Tribunal must prefer the evidence of the Applicant in respect of all of those matters, and give no weight or emphasis on the material contained in the Respondent’s evidence

25. Ms Ghabrial noted that the Applicant has not been able to answer the confidential evidence on which the Respondent seeks to rely. Further, none of the people who have authored the reports on which the Respondent seeks to rely have given any evidence to substantiate, explain or confirm the accuracy and reliability of the contents of those documents. Had those officers given evidence, the Applicant would have been able to explore these issue. The Tribunal should be cautious about accepting the contents of the reports.

26. It is submitted that a proper analysis of the records reveal that the police have formed a negative view of the Applicant, and their opinions of him are affected by this view.

27. In relation to the Applicant’s alleged associations, it is submitted that there is no evidence that the Applicant knew the details of the charges against the alleged associates, and the facts of each of those charges, at the time he had contact with each of the persons. Also, the majority of the entries contained in the various criminal records to which the Respondent has referred were dealt with well before the Applicant knew each of those persons.

28. In particular, Ms Ghabrial submitted that Moustafa Alameddine has no criminal record and one spent conviction; while David Eskarous did serve periodic detention in 2006, it was well before the Applicant knew him and there is no evidence that the Applicant knew the facts of his offence. There is no evidence before the Tribunal that Moustafa Ramlawie was ever convicted of any crimes. Further, the majority of Mohamad Alameddine’s records pre-dates the Applicant’s contact with him and, in any event, the Applicant has distanced himself from Mohamad Alameddine.

29. Ms Ghabrial submitted that it is clear that the Applicant’s associations have been through his business and cars. The Applicant provided ample evidence to support his evidence that his business dealings have always been lawful and legitimate. She submitted that it is of note that the Respondent has never suggested or put to the Applicant that:

• any of his businesses were a sham or unlawful in any way;

• his businesses have ever been involved in any illegal activity, whether alone or as part of any criminal organisation;

• how, or in what way, and when, he is alleged to have facilitated unlawful conduct;

• he has ever been a member of a criminal organisation/group, or ever knowingly/recklessly been involved in the activities of any such organisation;

• that he was voluntarily associating with people that he “knew” were involved in “organised crime”; or

• that he was vulnerable and naïve and reckless in his interactions with such people.

34. It is submitted that on the material before the Tribunal, the Applicant is a person of good character who has not committed any remotely relevant crimes and whose businesses have not been shown or demonstrated in any way by credible and probative evidence to be illegitimate by any means. The Applicant’s evidence that his connections to many of the persons referred to the Respondent’s material are business-related remains unchallenged other than by speculation and mere allegations. It is unchallenged by any actual credible, objective and probative evidence.

35. Ms Ghabrial maintains her submission that there is insufficient probative and non-speculative evidence that the Applicant is a person who lacks sufficient moral integrity and rectitude of character, or that he poses any threat to the safety of the community in any way. It follows that the Tribunal would not find on balance that the Applicant is “not fit, in the public interest, to have possession of a firearm”. As such the Tribunal would find that the correct and preferable decision in all the circumstances was not to make the FPO.

The Respondent’s Case

36. The Respondent contends that the Applicant is not fit, in the public interest, to have possession of a firearm. That contention is based upon:

1. the Applicant's associations with people who are linked with organised crime;

2. the Applicant's conduct, which suggests that those associations are not merely of a professional or business character; and

3. the Applicant's attitude to compliance with law.

37. The Respondent's primary submission is that:

• the Applicant voluntarily associated with Mohamed Alameddine, Moustafa Alameddine, Moustafa Ramlawie and David Eskarous.

• the Applicant became aware of information suggesting that each of those people have been involved in organised crime, or other unlawful activity.

• after receiving that information, the Applicant continued to associate with each of those people, in a manner that suggested he had either been reckless or naïve. That recklessness or naivety suggests that he could be vulnerable to pressure from those people to undertaking actions such as storing firearms, firearm parts, or ammunition.

38. The Respondent's secondary submission is that the Applicant's relationship with certain people have facilitated those other people's illegal activities.

39. The Respondent's Counsel, Mr Varley, provided written and oral submissions. Mr Varley submitted that the Tribunal would conclude that the Applicant voluntarily associated with people in circumstances that suggest he was either reckless or naïve about the risk that they posed.

40. The Respondent contends that police records confirm that between 2015 and 2023 the Applicant had numerous interactions with police. The Applicant’s associations with other persons, who are adversely known to police for serious criminal offending or involvement with criminal groups, include.

Moustafa Alameddine

41. The Respondent contends that Moustafa Alameddine has extensive links to the Alameddine organised crime network. The Respondent’s records show that:

• in January 2021 the Applicant was present with Moustafa Alameddine at what appears to have been a social gathering. Mohamed Alameddine was also present.

• In November 2021 the Applicant was in the driver's seat of a green Lamborghini, with Moustafa Alameddine in the passenger's seat. Later, on the same day, the Applicant was present in a private room attached to the Black Star and Grill at The Star with Moustafa Alameddine. Mohamed Saab, David Eskarous and Mohamed Alameddine were also present.

• In May 2022 the Applicant was driving a vehicle owned by Moustafa Alameddine, with Mr Alameddine as passenger.

• In July 2023 the Applicant was driving a vehicle owned by Moustafa Alameddine, with Mr Alameddine as passenger.

Mohamed Alameddine

42. The Respondent contends that Mohamed Alameddine has extensive links to the Comancheros OMCG. The Respondent’s records show that Mohamed Alameddine:

• is linked with the Comancheros, including with Terek Zahed, the Comancheros National Sergeant;

• has been in conflict with the Ahmed organised crime network;

• is a close associate of Victor Youssef, who has links with shootings and firearms offences; and

• has convictions for robbery while armed with a dangerous weapon, and for aggravated break and enter and commit serious indictable offence in custody.

43. The Respondent’s records also show that:

• in October 2019 Mohamed Alameddine was driving a vehicle with the Applicant as his passenger.

• in July 2020 Mohamed Alameddine was driving a vehicle owned by the Applicant. Police stopped the vehicle, and after some discussions, the Applicant arrived to explain $20,000 cash which was found in the vehicle.

• in December 2020 Mohamed Alameddine, the Applicant and others were seen socialising at a bakery in Collaroy.

• in January 2021 the Applicant was present at Soldiers Point boat ramp with Mohamed Alameddine and Moustafa Alameddine, among others, for what appears to have been a social gathering.

• in March 2021 Mohamed Alameddine and the Applicant were at the same event in Sydenham, and claimed ownership of a vehicle present at the event.

• in October 2021 police stopped and searched Mohamed Alameddine. During the search, the Applicant sought to contact Mohamed Alameddine approximately 3 times in quick succession using Facetime.

• in October 2021 the Applicant was present at a christening with Mohamed Alameddine. David Eskarous was also present.

• in November 2021 the Applicant was present in a private room at The Star with Mohamed Alameddine.

• in July 2022 the Applicant and Mohamed Alameddine were both on the guest list for a party to be held by Audey Alameddine.

David Eskarous

44. The Respondent contends that David Eskarous is an associate of the Comanchero and Alameddine organised crime networks. The Respondent’s records also show that:

• in May 2016 the Applicant was present at a Red Rooster with Mr Eskarous, in a Range Rover. In February 2017, the Applicant told police that he had recently purchased the same vehicle for $180,000. He was unable to provide proof of sale.

• in December 2018 the vehicle was seen following a vehicle being driven by the Applicant, with Mr Eskarous as passenger.

• in July 2020 a vehicle registered to the Applicant's company was outside a gym owned by Mr Eskarous.

• in December 2020 the Applicant told police that he was on the way to train at the gym, owned by his friend David.

• in October 2021 the Applicant was present at a christening with Mr Eskarous. The Applicant is godfather of Mr Eskarous’ children. Mohamed Alameddine and Mr Eskarous are friends

• in November 2021 the Applicant was present in a private room at The Star with Mr Eskarous, and others.

Mohamed Saab

45. The Respondent contends that Mohamed Saab is an associate of Mohamed Alameddine, and of Terek Zahed, the Comancheros National Sergeant. In August 2021 he was the lease holder for their premises.

46. The Respondent’s records also show that:

• in November 2021 the Applicant was present in a private room at The Star with Mr Saab, and others.

47. In response to the Applicant’s submission that some of the Respondent's material was not put to the Applicant in cross-examination, Mr Varley points to a number of authorities that deal with the requirement to put propositions to a witness in cross-examination in a tribunal. He submitted that the rule in Browne v Dunn doesn't apply to the Respondent's cross examination of the Applicant, and it is open to the Tribunal to make findings in the absence of such evidence being put to the Applicant. He further submitted that procedural fairness can be afforded in a range of ways. The opportunity may be given through the exchange of documentary material and affidavits, and by cross-examination. Further, the obligation to afford procedural fairness is necessarily curtailed where some of the evidence before the Tribunal is subject to orders under section 64 of the NCAT Act.

48. Mr Varley made the following response to the Applicant’s submission (references omitted):

First, the Applicant responded, in his affidavit, to the vast majority of the documents in Exhibits RI and R2. He took that opportunity to deny many of the allegations recorded in those documents. For example, he denied being a criminal, denied having any associations that are criminal in nature at all, denied owning a gun or illegal weapon, and made other similar denials. He has not been denied procedural fairness in respect of any of the allegations to which he responded, or had an opportunity to respond, in his affidavit.

Second, many of the propositions on which the Respondent relies were drawn from the Applicant's own evidence. That is, the Respondent's case relies on accepting parts of the Applicant's evidence. By way example only, and not in substitution for the oral submissions of the Respondent, the Respondent's case relies on accepting:

a   The Applicant's evidence that the Applicant attended Mohamed Alameddine's birthday dinner at The Star on 12 November 2021, and that of the approximately 17 people present at the dinner, the Applicant knew (not "knew of', contrary to ACS [61]) ten or eleven of them;

b   The Applicant's evidence that in October 2019 the Applicant was told by a police officer during a search of Mohamed Alameddine's vehicle, Mohamed Alameddine and the Applicant that he (the Applicant) was associating with a criminal;

c   The Applicant's evidence that in the last two or three years, or perhaps a bit longer, the Applicant had heard that Mohamed Alameddine was an "underworld figure";

d   The following account given by the Applicant, which in cross-examination he explained was a reference to people who included Mohamed Alameddine:

Occasionally, I would hear rumours or gossip or see and/or hear reports in the news or other forms of media, that some of my customers may have had interactions with the police or run-ins with the law in the past. But I never pry into their personal lives. It is not my place to ask questions about their background or personal lives in general. Frankly, I do not want to know as it is none of my business.

Third, the evidence that the Applicant had been reckless or naïve in his relationships with Mohamed Alameddine, Moustafa Alameddine, Moustafa Ramlawie and David Eskarous came from the Applicant himself.

That evidence included:

a   the passage of his affidavit set out at [26d] above;

b   the evidence he gave in cross-examination about hearing that Mohamed Alameddine was an underworld figure;

c   the evidence he gave in cross-examination that, within a couple of years of meeting Mohamed Alameddine, he had heard that Mohamed had been to gaol for a period of time;

d   the evidence he gave in cross-examination that a police officer had told him he was associating with a criminal when a vehicle carrying him and Mohamed Alameddine had been stopped and searched;

e   the evidence he gave in cross-examination about being stopped and searched by police over ten times in approximately the last four to five years while driving with people with the surname Alameddine;

f   the evidence he gave in cross-examination that he had realised that he shouldn't be friends with or get work from Mohamed Alameddine, and had pulled away from Mohamed since then;

g   the evidence he gave in cross-examination that his decision to pull back from his relationship with Mohamed Alameddine was in recognition that he should not have been spending time with Mohamed: on the second day of the hearing this proposition was put to him, and he accepted it);

h   the evidence he gave in cross-examination that he knew, before 2020, that Moustafa Ramlawie had been arrested for stealing eight cars, but that "Whatever they choose to do of their own life I'm not involved in it like, I don't put myself in that shoe."

Importantly, that evidence consists of the Applicant's affidavit and the cross-examination of the Applicant on the documents tendered by the Respondent. It follows that the propositions on which the Respondent relies either involve the acceptance of the Applicant's evidence, or were put to him in cross-examination, or both. ...

49. The Respondent contends that the Applicant's conduct suggests that his association with these people goes beyond a mere business or professional relationship. The Respondent contends that the Applicant’s poor history of compliance with the law suggests that he would be vulnerable to pressure brought to bear by those associates and he would be unlikely or unwilling to resist these associates if they asked him to engage in unlawful behaviour. In the circumstances, the Applicant is not fit, in the public interest, to have possession of a firearm. Accordingly, the Application should be dismissed.

The Confidential material

50. As noted, the Respondent presented confidential material in a closed hearing in which neither the Applicant nor his legal advisors participated.

51. The Applicant has correctly observed that the fact that the Respondent seeks to rely upon confidential material does not equate to a presumption or automatic finding that such material is relevant and admissible on the application.

52. The Applicant submits that the Tribunal should be guided by remarks by Senior Member Lucy in Grant v Commissioner of Police [2020] NSWCATAD 158, where she stated at paragraph [23]. These remarks were discussed by the Appeal Panel in Elley v Commissioner of Police, NSW Police Force [2023] NSWCATAP 237. The Appeal Panel stated at paragraphs [20] – [24]:

1. In Pendrick v Commissioner of Police, NSW Police Force [2021] NSWCATAD 326 at [29] the Tribunal held that the question of whether to admit confidential material into evidence (and whether to prohibit disclosure of the material to a party) raises different issues from those raised when an administrator objects to lodging the documents with the Tribunal:

   It does not follow from the making of an order under s 59 that the administrator will be permitted to rely upon the documents the subject of that order in evidence, without the applicant having access to them. The questions of whether to admit the material into evidence, and whether to make orders under s 64(1)(d) of the NCAT Act prohibiting the disclosure of that material to a party, raise very different issues.

2. We agree. The test for determining whether the Commissioner should be excused from lodging certain documents is, essentially, the test in s 64(1)(c) of the NCAT Act, namely that 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. Whether that evidence has probative weight and should be relied on, raises different issues. In Grant v Commissioner of Police [2020] NSWCATAD 158 at [23], the Tribunal made some observations about the weight it would give to confidential evidence to achieve “substantial justice”:

In circumstances where the applicant is not entitled to see the confidential evidence, I have taken an approach to that evidence which is designed to achieve, as far as possible, “substantial justice.” That is, I have given little or no weight to the following:

(1) Allegations about the applicant, where the source of the allegations is not identified;

(2) Evidence which is adverse to the applicant, where the applicant could have been, but was not, cross examined in relation to the substance of the evidence;

(3) Speculative comments in the evidence.

1. The Tribunal is not strictly bound by the rules of evidence, including the rules about the admissibility of evidence. Section 38(2) of the NCAT Act provides that:

   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.

2. While the Tribunal is not bound by the rules of evidence, Evatt J made the point in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256 that “. . . this does not mean that all the rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth.” In Pochi v Minister for Immigration and Ethnic Affairs, (1979) 36 FLR 482 at 492, Brennan J, in his capacity as President of the Administrative Appeals Tribunal, cited that passage when exploring the limits of the Tribunal’s fact finding powers:

   The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that ‘this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force’ … to depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force …

3. It follows that the Tribunal does not have to be satisfied that the material on which a party relies complies with the rules of evidence or is “admissible” in that sense. The Tribunal may give weight to evidence that would be excluded in court proceedings, including hearsay and opinion evidence, as long as that material is relevant and has “rational probative force”.

   53. As noted, the factual material to which the Tribunal has regard must be “relevant”. If a proper review of the confidential material reveals that the material is not relevant to the determination of the application, the Tribunal ought not have regard to the material.

   54. [NOT FOR PUBLICATION]

   55. [NOT FOR PUBLICATION]

Discussion

56. The Respondent relies on both open and confidential material. Neither the Applicant nor his legal advisors have had access to the confidential material, and they have not been in a position to test the material. Nevertheless, I have taken that material into account and given some of that material significant weight.

57. I have referred to the confidential material above at paragraphs [54] and [55]. I accept that the Applicant does not have access to that part of these reasons and is therefore at a significant disadvantage.

The obligation to cross-examine in order to afford procedural fairness

58. As noted above, the Applicant’s counsel has raised an issue about the Respondent’s failure to cross examine the Applicant on much of the material on which the Respondent seeks to rely. The obligation to cross-examine a party giving oral evidence in order to afford that party procedural fairness, was discussed by the Appeal Panel in Bilanenko v Commissioner of Police [2022] NSWCATAP 279 at [14] – [22], [25]. This was followed in Ryan v Commissioner of Police, NSW Police Force [2024] NSWCATAP 38 where the Appeal Panel stated at paragraph [54]:

1. The Appellant contends that he was denied procedural fairness by not being cross examined as to the proposition that the risk to public safety was enhanced by the practice of the Appellant of allowing other shooters to shoot his rifle on his property. The obligation to cross-examine a party giving oral evidence in order to afford that party procedural fairness, in the context of the NCAT Act was discussed by the Appeal Panel in Bilanenko v Commissioner of Police [2022] NSWCATAP 279 at [14] – [22], [25].

   14 We accept the proposition, which seemed not to be disputed by the parties, that strictly the rule in Browne v Dunn does not apply to proceedings before the Tribunal: see Twentymen v Secretary, Department of Social Services [2018] FCA 1892 at [77] (Twentymen) and see s 38(2) of the NCAT Act.

   15 We further note that it was stated by Wigney J in Twentymen that the ‘preferable approach is to address any issue arising from the failure to cross-examine a witness by reference to the principles of procedural fairness, without reference to the rule in Browne v Dunn’: at [78].

   16 The Appellant was put on notice of the dishonesty contention in the Complaint in writing and then directly responded by way of evidence in reply to that contention.

   17 In our view, as the Appellant was given the adverse information and the opportunity to respond to it, it cannot be said there was some procedural unfairness or ‘practical injustice’ in not being cross-examined on a point that he had addressed in his reply evidence.

   18 In this regard, with respect, we agree with the statements of the Full Federal Court in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Sullivan) where the Court found that first, administrative decision-makers bound by the common law rules of natural justice or procedural fairness are not required in all circumstances to permit cross-examination (see O’Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342) and, second, failure to cross-examine was no denial of procedural fairness because the applicant had notice of the statements of the witnesses and was afforded, prior to the hearing, with the inferences proposed to be drawn from the witnesses’ statements.

   19 Mr Higgins, of Counsel, who appeared for the Appellant, submitted that Sullivan should be distinguished on the basis that in the Commonwealth sphere the relevant issue was that of jurisdictional error as opposed to being an error of law that concerns the state jurisdiction.

   20 We do not agree with this submission. Consideration of the reasoning in Sullivan and the authorities relied upon such as Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSW LR 1 at [50] (see Sullivan at [50] per Logan J) demonstrates that the Court was speaking generally in terms of a failure to afford procedural fairness flowing from the equivalent statutory provisions to section 38 of the NCAT Act.

   21 We also note that in NSW’s cases such as Scalise v Bezzina [2003] NSWCA 362 at [98]; West v Mead [2003] NSWSC 161 at [91]-[99] and Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294 at [140], [143] and [144] it has been started that the rule in Browne v Dunn does not mandate the proposition that matters must be put to witnesses when pre-trial preparation means sufficient and adequate notice has been given with an opportunity to respond.

   22 Given that the Appellant in his statements in reply dealt specifically with the allegation of dishonesty there can be no doubt that he was on notice fairly of the case which it was proposed to make against him such that there was no breach in procedural fairness in a failure to be cross-examined on the subject.

   …

   25 Further, we note and apply what was said by the Appeal Panel in Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99 at [31] and [32] where it was emphasised that: ‘cross-examination is not an essential element of an oral hearing, nor is there a rigid rule that fairness always requires cross-examination to be admitted in administrative hearings…It is wholly within the power of the Tribunal to dispense with cross-examination if it thinks fit, provided it conforms to the rules of procedural fairness.’

   59. In the present matter, as noted by Mr Varley in the Respondent’s Reply Submissions, the Respondent relies on a combination of the Applicant's affidavit evidence, the oral evidence of the Applicant under cross-examination, and the documentary evidence tendered. I agree with that submission. I do not accept that the Respondent was under an obligation to cross-examine the Applicant to the extent asserted by Ms Ghabrial.

   60. In my view, the Applicant was afforded procedural fairness through the exchange of documentary material to which he responded in his affidavit, and through cross-examination. I also agree that the obligation to afford procedural fairness is necessarily curtailed where the evidence before the Tribunal is subject to orders under section 64 of the NCAT Act.

The Applicant’s character references

61. As noted, the references are positive in relation to the Applicant’s character and his conduct as a businessman. However, as the Respondent has noted, the references do not refer to these subject matter of these proceedings or the allegations made against the Applicant. In the circumstances, the extent of the author’s knowledge of the proceedings is uncertain and therefore the weight to be given to the references must reflect this omission.

The Applicant’s associations

62. The propositions on which the Respondent relies largely rest on the assessment of the associations between the Applicant and several individuals. In particular, by his own admission, the Applicant has associated with Mohamed Alameddine, Moustafa Alameddine, Moustafa Ramlawie and David Eskarous.

63. Where an applicant voluntarily associated with persons having significant criminal histories or involvement with criminal organisations and activities, that association may create the danger to public safety with which the Commissioner is concerned and that person may therefore be not fit, in the public interest, to be in possession of a firearm. In those circumstances, a firearms prohibition order may be justified: Addison v Commissioner of Police, NSW Police Force at paragraph [21].

64. In assessing the relationships between the Applicant and those individuals I have taken account of the open material, the evidence the Applicant has given and the confidential material on which the Respondent relies. I agree with the Applicant that little if any weight should be given to information that lacks rational probative force. I have taken account of the source of the information contained in the various reports and I have assigned weight according to my assessment of the reliability and accuracy of the reports.

65. [NOT FOR PUBLICATION]

66. [NOT FOR PUBLICATION]

67. [NOT FOR PUBLICATION]

68. [NOT FOR PUBLICATION]

69. The evidence before me shows that the Applicant was aware of information suggesting that at least some of the people with whom he has an ongoing association have been involved in organised crime, or other unlawful activity. Notwithstanding that awareness, the Applicant continued to associate with those people.

70. In that regard, I am satisfied that the Applicant has either been reckless or naïve about the risk that is posed by the associations. Given that view, I am also satisfied that the Applicant could be vulnerable to pressure from those people to undertaking actions such as storing firearms, firearm parts, or ammunition.

71. In the circumstances of this matter, I am satisfied that as a result of the Applicant’s ongoing association with the named individuals there is a real and significant risk that he will be involved in serious crime related activities. In my view, at this time HFV is not fit, in the public interest, to have possession of a firearm. It is in the public interest for the FPO to be issued against him.

72. It follows that the correct and preferable decision is to issue a Firearms Prohibition Order against HFV under section 73(1) of the Firearms Act 1996.

Order

1. The decision under review is affirmed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

29 July 2025 - Duplicate citation in the coversheet and the registrar’s certification at the end of the decision appeared twice in this decision is now deleted.

20 August 2025 - anonymisation update.

Decision last updated: 20 August 2025