Hussein v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 216

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hussein v Commissioner of Police, NSW Police Force [2024] NSWCATAD 216

Hearing dates:

14 September, 14 December 2023

Date of orders:

02 August 2024

Decision date:

02 August 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Leal, Senior Member

Decision:

The decision of the Commissioner of Police to revoke Mr Hussein’s firearms licence on 22 March 2023 is affirmed.

Catchwords:

Firearms licence – revocation – whether in the public interest – whether genuine reason to hold firearms licence – dismissal of criminal charges – dismissal of application for apprehended violence order – whether threatening behaviour.

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Evidence Act 1995 (NSW)

Firearms Act 1996 (NSW)

Firearms Regulation 2017 (NSW)

Cases Cited:

Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Farah v Commissioner of Police, NSW Police Force [2023] NSWCATAD 100

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 11

Keane v Commissioner of Police, NSW Police [2008] NSWADT 68

Ward v Commissioner of Police [2000] NSWADT 28

Webb v Commissioner of Police, NSW Police Service [2004] NSWADT 110

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Ethan Oscar Hussein v Commissioner of Police, NSW Police Force

Representation:

Counsel:
T Lowe (Applicant)

Solicitors:
Mainstone Lawyers (Applicant)

File Number(s):

2023/00125539

Publication restriction:

Nil

REASONS FOR DECISION

1. Mr Hussein is a thirty-year-old man whose firearms licence has been revoked following allegations of intimidation against his partner. Criminal charges and an application by police for an apprehended violence order were dismissed and Mr Hussein is now seeking a review of the decision to revoke his firearms licence.

2. Firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety and to improve public safety by imposing strict controls on the possession and use of firearms: s3 Firearms Act.

3. It is not in dispute that I have the power to review the decision to revoke Mr Hussein’s licence and that it is my role to decide the correct and preferable decision having regard to the material then before it.

4. For the reasons that follow, I have decided to affirm the decision to revoke Mr Hussein’s firearms licence.

issues

5. In reaching my decision, I have considered the following issues:

1. Does Mr Hussein have a genuine reason for a firearm’s licence?

2. Was Mr Hussein either in possession or responsible for the ammunition found on the ground in his father’s garage?

3. Did Mr Hussein intimidate his partner on 27 November 2022?

4. What is the relevance of the dismissal of the criminal charges and the application for an apprehended violence order against Mr Hussein?

5. What is the relevance of Mr Hussein’s various interactions with police?

6. What are Mr Hussein’s current domestic circumstances?

7. Is it in the public interest for Mr Hussein to hold a firearms licence?

8. Is Mr Hussein a fit and proper person to hold a firearms licence? \

Does Mr Hussein have a genuine reason for possessing or using a firearm?

6. Before issuing a firearms licence, the Commissioner of Police must be satisfied that an applicant has a genuine reason for possessing or using the firearm. A genuine reason includes sport/target shooting and recreational hunting/vermin control, which are the reasons nominated by Mr Hussein for possessing and using a firearm. In order to have recreational hunting/vermin control as a genuine reason, Mr Hussein must be a current member of a hunting club. He is also required to have completed the participation requirements of the club, namely two hunting activities which each twelve-month compliance period. (section 12(1) of the Firearms Act 1996(NSW)).

7. In a statement prepared for these proceedings, Mr Hussein said, ‘I can no longer enjoy my hobbies with my father of camping, hunting and shooting as I am no longer licensed, thus my father and I spend hardly any time together. This is the reason I would like to have my firearms licence reinstated.’

8. There is no dispute that Mr Hussein was a member of the Sporting Shooters Association of Australia (NSW) between February 2008 and February 2018 and then from June 2018 to June 2023. He is a current member of the association, having rejoined on 4 August 2023.

9. According to the records held by the club for Mr Hussein, he completed two target activities in the compliance period 2008 to 2009, but has not completed any target activities since then. I accept that he has been unable to complete the activities in 2022, 2023 and 2024 because of the suspension then revocation of his firearms licence. However, between 2009 and 2021, he did not complete the target activities, as required by the Firearms Regulation. (cl 31 and cl 188 of the Firearm Regulation 2017).

10. On the evidence before me, I am satisfied that Mr Hussein has a genuine reason to use and possess a firearm, namely for recreational hunting and vermin control with his father. That Mr Hussein did not undertake the target activities required by the Firearms Regulation between 2009 and 2021,does, however, cause me concern that he is not mindful of the obligations of a holder of a firearms licence.

Did Mr Hussein intimidate his partner on 27 November 2022?

11. Mr Hussein and his partner have been together since 2017. In the early hours of 27 November 2022, Mr Hussein contacted his partner by text message to accuse her of having been unfaithful to him earlier in their relationship. Mr Hussein does not dispute having sent the text messages which include the following:

Saturday 26 February 2022

1.50am

Hey are you awake

HI what’s up

I sure was

Still not 100%

2.36am

I got told you took Louis back to carbon street and fucked him xxx

What you out drinking or some shit

Thats a fn lie

2:37 am

НАНАНАНАНАНАНА

2:39 am

Actually fuck off and leave me alone and ya good sources LOL

2.39am

Okay cstchya cunt

I've moved on and left you alone a bit of courtesy would be the same.

Especially when it's almost 3am in the morning want to argue and shitI

4.30am

Youyobg piece of shit

Caught out again hey

4.33am

Wait till I knock on that door

4.36am

Here

4.46am

I’m at your mum’s house where are you

4.48am

[photo of a front door]

4.49am

You think I’m joking cunt

Where the fuck arentou

Answer the fucking phone

4.49 am

Not at your fucking mum’s where are you then

4.50am

Cheating piece of shit guilty can’t answer your phone.

Going to Ramsey’s I’ll knock on that door to

4.51 am

Police have just being called

Fuck off I’m sleeping bye,

Your actually crazy

4.52am

Its 5am

I am going the cops now get away from my work and my family

4.56am

Threatening to kill me isn’t very nice.

5.16am

Answer the phone or your cats are getting thrown out.

Sick of looking after the cunts wanna threaten me with the cops.

5.19am

The cats are going I want you out of the house also.

I am going the police to do a statement

Can you actually call me today not drunj either

12. Mr Hussein’s partner contacted the police later that morning. When the police arrived, they had a body-worn camera to record their interactions with her.

13. When asked if she had fears for her safety, she told the police officers that she did when Mr Hussein had been drinking and said she was ‘scared of him because I don’t know what he is capable of, he gets angry and just screams.’

14. She told the police officers that Mr Hussein had taken her house keys from their shared property and refused her access entirely.

15. She also said that, after informing Mr Hussein she’d be calling them, Mr Hussein told her that ‘he felt like killing,’ and that he has sounded drunk and had continued to call her over and over again.

16. The sister of Mr Hussein’s partner told police that Mr Hussein and her sister had broken up, that he had taken her keys to their house and had sent her ’message after message’ and ‘phone call after phone call.’ She said that her sister had rung their mother at 5am on 27 February 2022 to say she was coming over because she felt safer there.

17. As the sister of Mr Hussein’s partner was not required for cross-examination in these proceedings, her statements are unchallenged.

18. Whilst Mr Hussein agrees that he sent the text messages to his partner, he doesn’t agree that:

1. he said to his partner, ‘I feel like killing;

2. he was drunk that that morning;

3. his partner failed to return his calls, stating that she kept calling him from a private number;

4. his partner was truthful when recorded by the police on 27 February 2022.

Did Mr Hussein tell his partner that ‘I feel like killing’

19. As set out above, on 27 February 2022, Mr Hussein’s partner told police that Mr Hussein had said that he ‘feels like killing’. In a statement dated 29 June 2023 and in evidence in these proceedings, Mr Hussein’s partner denied he had ever said this to her. Instead, she gave evidence that she had ‘made it up.’ During her evidence in these proceedings, a certificate was issued to Mr Hussein’s partner in accordance with s128 of the Evidence Act 1995 (NSW).

20. Mr Hussein didn’t say anything about killing, she said, explaining that she mentioned it ‘because I knew how much Ethan’s firearms meant to him. It was a comment made out of spite at a time when I was suffering from mental health issues, and I regret doing this.’.

21. This evidence does not align with the text message she sent to Mr Hussein at 4.56am on 27 February 2022 which reads, ‘Threatening to kill me isn’t very nice.’

22. Whilst I cannot be satisfied of his exact words, on the evidence before me I am satisfied that what Mr Hussein said to his partner was sufficiently threatening to prompt her response by text message that ‘threatening to kill me isn’t very nice.’ Given the contemporaneity of her text message, I do not accept her later evidence that she had made the accusation out of spite.

Was Mr Hussein under the influence of alcohol?

23. In his police interview, Mr Hussein denied being drunk on the morning of 27 February 2022, telling police he’d only had two drinks the night beforehand. This is in contrast to his partner’s statements to the police, recorded when they attended her that morning. She described Mr Hussein’s voice as being slurred as though he were drunk. In evidence in these proceedings, she denied that he had been drunk that morning.

24. On the evidence before me, I cannot be satisfied that Mr Hussein was under the influence of alcohol in the morning of 27 February 2022. If, as he states, he wasn’t under the influence of alcohol, his text messages remain concerning, particularly if they are unable to be explained by a loosening of inhibitions from alcohol consumption.

Did his partner make multiple phone calls to Mr Hussein from a private number?

25. It is Mr Hussein’s evidence that his partner initiated their contact on the morning of 27 February 2022 by calling him from a private number.

26. On the basis of the evidence before me, including the oral evidence of Mr Hussein in these proceedings, I am satisfied that his partner did make calls to him from a private number on 27 February 2022. Whilst this supports Mr Hussein’s evidence that his phone calls and text messages followed from her initial contact, it neither explains nor excuses the threatening nature of Mr Hussein’s text messages to his partner’s phone nor the bombardment of calls made to her phone between 4.21am and 5.31am on 27 February 2022.

Was Mr Hussein’s partner truthful when speaking to the police on 27 February 2022?

27. In her conversation with police officers, as recorded on their body-worn camera on 27 February 2022, Ms Hussein’s partner said that:

1. by 27 February 2022, she and Mr Hussein had been separated for four months;

2. she had been thrown out of their residence, and

3. Mr Hussein had returned her clothes.

28. In an email to Mr Hussein dated 20 March 2022, she states:

I snapped and was angry at you and basically wanted you in trouble and didn’t tell the police I am the reason you snapped as I provoked you over snap chat and all I wanted you to do is check on me and I just kept baiting you for an argument I’m sorry I think in this situation you are the innocent person and it was all my fault my mental state was so shit….I haven’t taken my meds for a bit and drinking didn’t made it any better and I just snapped.

29. In the body-worn recording by police on 27 February 2022, Ms Bloomfield sounded calm and clearheaded, telling the police that:

1. she and Mr Hussein had separated after a five-year relationship;

2. she was scared of Mr Hussein when he was drunk because he became angry and shouted at her and she felt that she couldn’t be sure what he was capable of doing; and

3. she didn’t think he’d ever hurt her.

30. In her subsequent statement, however, she states that Mr Hussein didn’t say anything about killing, and that she mentioned it because she knew how much Mr Hussein’s firearms meant to him.

31. She stated that:

it was a comment made out of spite at a time when I was suffering from mental health issues, and I regret doing this..My mental health has improved considerably with the support of Ethan and undergoing new medication….I have no fears regarding Ethan if he were to have his firearms licence restored and was able to possess and use firearms again.

32. On the evidence before me, I am satisfied on the balance of probabilities that Mr Hussein’s behaviour towards his partner was intimidatory. For the reasons set out above, I am satisfied that his partner was truthful when speaking to the police on 27 February 2022. I do not agree that this evidence should be given little weight because a written police statement has not been provided. The USB stick contained on file shows the body-worn camera recording and captures Mr Hussein’s partner’s conversation with the police. Her evidence aligns with her sister’s observation that she had called at 5am to come over to their mother’s house because she felt safer there.

33. I am not satisfied that the medical history of Mr Hussein’s partner explains or excuses his intimidatory behaviour.

What are Mr Hussein’s current domestic circumstances?

34. In an electronically recorded interview between Mr Hussein and the police on 27 February 2022, Mr Hussein denied ever threatening to hurt his partner and said he never would hurt her, explaining that ‘I was just upset she cheated on me.’

35. In her evidence during these proceedings, Mr Hussein’s partner confirmed that she and Mr Hussein remain in a relationship, that her mental health has improved considerably both with the support of Mr Hussein and through new medication. She confirmed that she had no fears regarding Mr Hussein if he were to have his firearms licence restored and was able to possess and use firearms again.

36. On the evidence before me, I am satisfied that Mr Hussein and his partner are in a stable relationship and that Mr Hussein has been supportive to her.

Was Mr Hussein either in possession or responsible for the ammunition found in his father’s shed on 27 February 2022?

37. On the morning of 27 February 2022, police officers spoke to Mr Hussein’s father, whose residence is the safe storage address for the twenty-three firearms belonging to Mr Hussein and the six firearms belonging to his father and his father’s partner. All firearms were stored across five safes in the shed on the property, and his father initially denied then agreed that Mr Hussein had access to all five safes.

38. While attending the property to seize Mr Hussein’s 23 firearms, the police found a loaded magazine containing .223 ammunition on the floor of the shed, near the safes. Mr Hussein’s father identified the unsecured ammunition and cartridges as being his and was unable to explain how they would have been left unsecured, telling the police that he is fastidious about his weapons, and speculating that Mr Hussein may be to blame. Mr Hussein has, however, never been charged with an offence in relation to the unsecured ammunition and cartridges.

39. A firearms licence must not be issued unless the Commissioner of Police is satisfied that the relevant storage and safety requirements are capable of being met by the applicant. These requirements include having both firearms and ammunition locked in a safe. (s11(3)(c) Firearms Act)

40. In an email from Mr Hussein’s father and his father’s partner, Mr Hussein’s father explains that his partner had been using the magazines and ammunition early on 27 February 2022 when, hearing dogs barking and seeing flashlights in the front yard, had feared an intruder and wanting to alert Mr Hussein’s father, had locked up the shed but left the two magazines and ammunition on the floor next to the ammunition box. She was not required for cross-examination in these proceedings.

41. In light of this uncontested evidence, I cannot be satisfied that Mr Hussein was either in possession or responsible for the ammunition found in his father’s shed on 27 February 2022.

What is the relevance of Mr Hussein’s various interactions with police?

42. Mr Hussein was charged with the offence of stalk or intimidate intending to cause fear of physical or mental harm (domestic violence offence) under s13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The police took out an interim apprehended violence order against him on 27 February 2022. Despite being subpoenaed by the police and attempts made to contact her, Mr Hussein’s partner did not attend court and the criminal charges were subsequently dismissed. The application for a final apprehended violence order against Mr Hussein was also dismissed. Despite the criminal charges and the apprehended violence order being dismissed, the conduct that led to the criminal charges and the interim apprehended violence order remains relevant to my determination of the correct and preferable decision in this matter. (see Farah v Commissioner of Police, NSW Police Force [2023] NSWCATAD 100 at [92]; Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 11 at [62] – [64].

43. Mr Hussein has previously come to the attention of the police in 2010, when he was 16 years old. He had allegedly been involved in an argument and appeared to be moderately intoxicated. Later that year, he was questioned by police and admitted to be carrying alcohol in his backpack. In 2014, when he was twenty years old, Mr Hussein was stopped and tested by police who suspected he was under the influence of marijuana and had ‘an excessive amount of air fresheners’ in his car, allegedly to mask the smell of marijuana.

44. Given that the first two of these incidents took place when Mr Hussein was a child and the other is simply a suspicion that Mr Hussein had been under the influence of marijuana some ten years ago, I am not satisfied that any of these incidents are relevant to these proceedings.

Is it in the public interest for Mr Hussein to hold a firearms licence?

45. In considering whether Mr Hussein should hold a firearms licence, I must consider whether, based on all the evidence, I would have confidence that he would not pose a risk to public safety if given access to firearms. Although it is impossible to be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm, I must be satisfied that there is virtually no risk. Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28.

46. A balanced view of the risks should be adopted, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration and the likelihood of risk to the safety of the public must be assessed by reference to prior conduct. Webb v Commissioner of Police, NSW Police Service [2004] NSWADT 97.

45. The ‘public interest’ allows issues going beyond the character of the applicant to be considered. These may include concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

46. The expression “public interest” is not defined in s 11(7) of the Firearms Act, nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. Strict controls on the possession and use of the firearms are imposed in the interests of public safety: Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 at [44].

47. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the appeal panel of this tribunal said that the ‘public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

48. Considerations may go beyond the character of the Applicant and may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33].

49. It is not in dispute that:

1. Mr Hussain has been authorised for firearms for approximately 13 years, which includes his authorization under a minors permit;

2. that prior to the incident involving his partner, Mr Hussein had not come to the adverse attention of police nor does he have any criminal convictions;

3. that during Mr Hussein's period of firearm authorization there has been no reported firearm misuse or accident.

52. On the evidence before me, however, I cannot be confident that Mr Hussein would not pose a risk to public safety if given access to a firearm. On this basis, I am satisfied that, at this stage, it would be contrary to the public interest for Mr Hussein to be the holder of a firearms licence.

53. This is because, for the reasons set out above, I find that:

1. Mr Hussein’s failure to meet regulatory requirements in relation to targeting activities indicates that he does not take his licensing responsibilities seriously.

2. Mr Hussein’s behaviour towards his partner was intimidatory and threatening on 27 February 2022, and, on the evidence, he appears to lack the insight to recognise this and to address it.

Is Mr Hussein a fit and proper person to hold a firearms licence? (honesty, knowledge, propriety

54. As I have found that it would not be in the public interest for Mr Hussein and that the decision to revoke his firearms licence should be affirmed, it is not necessary for me to consider whether he is a fit and proper person to hold a firearms licence.

conclusion

55. For the reasons set out above, I have found that, at this stage, it would not be in the public interest for Mr Hussein to hold a firearms licence at this time and that the decision of the Commissioner of Police on 22 March 2023 to revoke Mr Hussein’s firearms licence should be affirmed.

orders

56. The decision of the Commissioner of Police to revoke Mr Hussein’s firearms licence on 22 March 2023 is affirmed.

**********

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

Registrar

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

Decision last updated: 02 August 2024