Jakelic v Commissioner of Police, NSW Police

[2007] NSWADT 7

CITATION:	Jakelic v Commissioner of Police, NSW Police [2007] NSWADT 7
DIVISION:	General Division
PARTIES:	APPLICANT Mirko Franko Jakelic RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	063198
HEARING DATES:	15/09/2006
SUBMISSIONS CLOSED:	22 September 2006
DATE OF DECISION:	9 January 2007
BEFORE:	Leal S - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	McDonald v Director General of Social Security (1984) 1 FCR 354
REPRESENTATION:	APPLICANT W Terrancini, SC G Newton, Barrister RESPONDENT M Maddox, agent
ORDERS:	The decision of the Commissioner to revoke Mr Jakelic's firearms licence is set aside

1 Mr Jakelic was issued with a Category AB firearms licence on 1 December 1997. On 16 January 2003, Mr Jakelic applied for a Category AB firearms licence. Although a further Category AB firearms licence was issued to him on 24 February 2003 - which was due to expire in 2008 - on 7 October 2005 Mr Jakelic received a Notice of Refusal under the Firearms Act 1996 advising him of the refusal of his application. An internal review conducted on 28 April 2006 set aside the Commissioner’s decision to refuse the Category AB licence and instead made a decision to revoke Mr Jakelic’s licence. Mr Jakelic has applied to this Tribunal for a review of the decision to revoke his firearms licence.

Review decision

2 In this case, the Tribunal is undertaking a review of the merits of the original decision. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It then confirms the original decision, varies it, or sets it aside and substitutes another decision. The Tribunal makes its own decision in place of that of the Commissioner of Police and there is no presumption that the decision of the Commissioner is correct. (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.)

3 The Commissioner refused Mr Jakelic’s application for a firearms licence on the basis that he considered that it would not be in the public interest for him to continue to hold a firearms licence authorising the possession and use of firearms.

Power to revoke a firearms licence

4 The Firearms Act 1996 (the Act) sets up a scheme to licence people to possess and use firearms. The principles and objects are set out in section 3 of the Act. They are to confirm firearm possession and use as being 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, and by promoting the safe and responsible storage and use of firearms, and to facilitate a national approach to the control of firearms.

5 Section 24 of the Firearms Act 1996 allows a firearms licence to be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.

6 Section 11 of the Firearms Act 1996 provides that a firearms licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s being of unsound mind.

7 Section 24 of the Firearms Act 1995 further provides that a licence may be revoked for any reason prescribed by the regulations.

8 Section 17 of the Firearms (General) Regulation 1997 states that in accordance with section 24(2)(d) of the 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.

Public Interest

9 In considering whether it was in the public interest for Mr Jakelic to continue to hold a firearms licence, the Commissioner took into account the following:

That Mr Jakelic had pleaded guilty to 5 counts of possess/use prohibited weapon w/o permit;

That Mr Jakelic had been charged with a series of offences that were discharged in the Melbourne Magistrates Court;

That a police report stated that Mr Jakelic had used standover tactics regarding the payment of an account to car mechanics in Bankstown in 2000.

10 According to the internal reviewer, the following items were found at Mr Jakelic’s house following the execution of a search warrant by the NSW Police: 220lb crossbow, one pistol style crossbow, one extendable baton, one can of capsicum spray and one .44 calibre replica long barrel pistol. These items were deemed prohibited under Schedule 1 of the Weapons Prohibited Act 1998.

11 Contained on the police brief are four references addressed to the Presiding Magistrate at the Burwood Local Court in relation to the charges of possess prohibited weapon without permit.

12 In his reference dated 3 August 2005, the solicitor Mr Richard Felsing-Protasowski, a former employer of Mr Jakelic, states that:

I am aware that Mr Jakelic is charged with possession of 2 crossbows, an extendable baton, capsicum spray and a replica firearm. At the time of the police search, I believe none of the items were hidden from view. I understand the crossbows are inactive, were not accompanied by any compatible bolts are were clearly exhibited as ornaments, as indeed was the ‘western six-shooter.’ … I firmly believe that the crossbows and the replica pistol were only kept by Mr Jakelic for display within the confines of his home. Mr Jakelic now, however, freely concedes that his behaviour was extremely irresponsible in keeping these items illegally. As far as the baton and capsicum spray are concerned, I am aware that he had at one time been lawfully in possession of these items by regrettably failed to surrender them after they became prohibited weapons….[Mr Jakelic] has indicated to me and I accept without qualification that he deeply regrets his actions which have now put his whole livelihood at risk. He has now made himself intimately familiar with the provisions of the Weapons Prohibition Act 1998 and I am extremely confident that he shall never re-offend.’

13 In a reference dated 10 August 2005, Councillor Richard Davidson states that:

I have known Michael Jakelic personally for a period of 18 years. During that time I have been able to observe that Michael is a person of his word, and is held in high regard by all of his friends, and work colleagues. .. Over the years, I have observed Michael displaying good commonsense and ethics in his personally[sic] and professional life, showing his strength or character and compassion for people who have needed his support. In Michael’s businesses of security, investigation & mercantile services, he has always conducted himself at the highest level of professionalism.

14 In a reference dated 4 August 2005, Menio Belogiannis J.P, states that:

It has been brought to my attention that Michael is appearing before the court on charges relating to his collection of certain prohibited items. Having known Michael for several years, I can attest that he has always been a keen collector of rare items and collectables. .. I am certain these items collected by Michael were at a moment lacking concentration and thought on Michael’s behalf.

15 To explain Mr Jakelic’s possession of capsicum spray, Mr Gino Lilli, from Statewide Protective Services provided a reference in which he states:

As previously stated Mr Jakelic was enrolled in a training course facilitated by All Systems Security Services and conducted by Statewide Protective Services, who also provided the equipment and materials for the training course.

Mr Jakelic only attended the initial day of the course, and due to other commitments was unable to complete the scheduled 2 days of the course.

Due to Statewide Protective Services, not conducting further courses Mr Jakelic was unable to finish the training course.

16 All charges were dismissed without conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999.

Charges dismissed in Melbourne Magistrates’ Court

17 In reaching his decision, the internal reviewer also took into consideration the fact that Mr Jakelic had been charged with a series of offences, namely blackmail, make threat to kill, use threatening words in public place, unlawful assault, extortion with threat to kill, crowd control – unlic (private agents.) These charges were discharged by the Melbourne Magistrates Court during the committal proceedings.

18 A copy of the transcript dated 26 October 2005 for the committal proceedings against Mr Jakelic held in the Melbourne Magistrates’ Court was put into evidence by Mr Jakelic.

19 In dismissing the proceedings against Mr Jakelic, the Magistrate, Ms L Fleming made the following findings:

In relation to Mr William Popplestone and Mr Mirko Jakelic, I am not satisfied that there is evidence of a common agreement to commit the offences for which they have been charged in relation to the incidence at the Basement Café on 10 November 2004. There is certainly a discussion that becomes heated, relating to the payment of an alleged debt and a payment plan as sought to be arranged at the café, but this falls short of establishing that the three contemplated and planned to carry out a joint enterprise to blackmail the complainant.

The Crown puts its case on the basis that the three accused were acting on [sic] concert. Having read the authorities and heard the submissions, and having regard to the evidence, I cannot be satisfied that there is any evidence to support the Crown’s assertion of a joint enterprise between William Popplestone, Milrko Jakelic and Phillip Popplestone. There is no evidence that the three accused reached an understanding amounting to an agreement between them that they would commit the offences for which they have been charged.

There is evidence that when Phillip Popplestone became overheated due to his perceptions of Mr Hamilton’s responses to his demands, William Popplestone left and Milrko Jakelic tried to calm the situation down. While there were witnesses to the incident, the evidence they gave conflicts with the complainant in some material ways. William Popplestone and Milrko Jakelic will be discharged

20 The Magistrate later awarded costs to Mr Jakelic.

Incident with car mechanic

21 In his review, the internal reviewer states that:

I further note a report to NSW Police that you became abusive and used ‘standover tactics’ regarding the payment of an account to car mechanics in Bankstown in 2000.

22 Relevantly, the police report (a COPS event sheet) dated 27 October 2000 states as follows:

Police spoke with POI3 who stated that POI1 attended his workshop complaining about the fuel consumption of his vehicle and asked him to look at the car… POI 3 stated that a number of hours were spent on the vehicle and that the customer was charged for this accordingly. POI 3 stated that on this date POI 1 had attended his workshop with the male person POI 2 [ Jakelic ] who became abusive and appeared to be trying to use standover tactics to have him give POI 1 back his vehicle without paying the account. This became a heated verbal dispute between all parties when Police were called. The matter was resolved where POI 1 then paid the account and stated he would take Civil Action against POI 3 in relation to the overcharging and the word performed. POI 3 then returned the vehicle to POI 1 and issued him a receipt for the work done…This matter was purely a civil dispute and police recorded the incident as they attended in respect of any possible Breach of the Peace.

23 A copy of a contemporaneous note from Mr Jakelic’s diary dated 27 October 2000 is contained on file, part of which reads as follows:

Bernie the repairer started to abuse Bill and by same advised that I have been asked to witness the behaviour on collection of the vehicle. Bernie then said to be introduced and then started to abuse and stated I shall call the Police, to which he was told go for it. He said you have threat me and Bill was present, to which we were amazed by it. There were more abuse by Bernie and later a Tow Truck arrived.

24 At hearing, Sgt Maddox of the NSW Police did not provide any evidence in support of the details contained in the COPS event sheet.

Issues in support of Mr Jakelic

25 Contained on file is a copy of a Genuine Reason form for the NSW Police Firearms Registry in which James Ballas, the owner of the rural land, ‘Coronation’ in Mudgee, gives permission to Mr Jakelic to shoot vermin and game on the property. A further letter of authority for hunter/vermin control dated 5 November 2002 is given to Mr Jakelic by Marie Norris, the owner of the property Boorara in Coolabah.

26 Mr Gary Bell supplied an undated reference in support of Mr Jakelic which reads as follows:

This is to advise I have, as owner of ‘Glenfarnie’ Mudgee, employed Mr Mirko Jakelic from time to time to control vermin on my property of some 2000 acres.

I found him to be very reliable, conscientious and cautious in carrying out his duties.

I also need him in the future because of the escalating problem I have.

27 Mr Jakelic is a current member of the Sporting Shooters Association of Australia.

28 On 20 May 2004, he became the owner of the property ‘Kanandah’ in Quirindi. A copy of the transfer for the property is contained on file.

29 Mr Jakelic has completed the following courses, certificates for which are contained on file:

Responsible Conduct of Gambling in partial completion of Cert III Hospitality Operations (Food & Beverage THH02)

Customer service in the Hospitality Industry (Security)

Responsible Service of Alcohol (Liquor Administration Board approved course)

30 In 2004, the Commissioner for Police re-issued Mr Jakelic with two security licences: a class 1ABC security licence which expires on 20 April 2009 and a class 2AB security licence which expires on 5 August 2009. Copies of these licences are contained on the Tribunal file.

Findings and reasons

31 Mr Jakelic has applied to this Tribunal for a review of the Commissioner's decisions to revoke his firearms licence. The essence of the Commissioner’s case is that it is not in the public interest for Mr Jakelic to continue to hold the licence.

32 Any past and present conduct that may be relevant in deciding whether Mr Jakelic is a person who deserves the privilege of holding a firearms licence must be reviewed. Any propensity towards offending against the law must be regarded as of crucial importance. I have considered all the material presented by the parties and I have taken account of the competing considerations.

33 The objects and principles of the Act state that firearms are a privilege and inherent in the requirements is that persons who have access to firearms must act responsibly. Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. The principle issue then is whether there is a risk to the safety of the public if Mr Jakelic retains the licence.

34 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk to public safety if Mr Jakelic were given access to a firearm. The Commissioner argues that the Tribunal could not be satisfied that Mr Jakelic does not present a danger to public safety and, accordingly, it is not in the public interest for him to continue to hold a firearms licence. I disagree with that view.

35 In reaching this view, I have made the following findings:

36 I accept that Mr Jakelic was charged with the offences of blackmail, make threat to kill, use threatening words in public place, unlawful assault, extortion with threat to kill, crowd control – unlic (private agents.) Whilst these are serious charges, I accept that all charges against Mr Jakelic were dismissed at committal proceedings held in Melbourne Magistrate’s Court and that the Magistrate commented when discharging Mr Jakelic that he had ‘tried to calm the situation down.’

37 In the light of this evidence, I am not satisfied that the fact that such charges were laid against Mr Jakelic should be used against him to determine that it would not be in the public interest for him to continue to hold a firearms licence.

38 I also accept that Mr Jakelic pleaded guilty to five counts of possess prohibited weapon without permit and that all the charges were dismissed under section 10 of the Crimes (Sentencing Procedures) Act 1999, which allows for a conviction not to be recorded despite a finding of guilt.

39 Although it is clear that the prohibited items should not have been in Mr Jakelic’s possession, I accept the references by Mr Richard Felsing-Protasowki, Councillor Richard Davidson and Mr Menio Belogiannis that the items were for display purposes only and have now been removed. No evidence to the contrary was put forward to the Tribunal by the Commissioner. I am strengthened in my view by the fact that the matters were discharged under section 10 of the Crimes (Sentencing Procedures) Act 1999.

40 I am not satisfied that the police report dated 27 October 2000 in relation to an alleged altercation between Mr Jakelic and a mechanic raises concerns as to whether it would be in the public interest for Mr Jakelic to continue to hold a firearms licence. No arrests were made and there was no evidence put forward that Mr Jakelic had, in fact, engaged in standover tactics.

41 Furthermore, it is significant that this report did not stop the Commissioner for Police from re-issuing Mr Jakelic with two security licences in 2004: a class 1ABC security licence which expires on 20 April 2009 and a class 2AB security licence which expires on 5 August 2009. As these security licences remain current, I have drawn the conclusion that the Commissioner for Police remains satisfied that Mr Jakelic is a fit and proper person to hold a security licence and that the grant of the licence would not be contrary to the public interest.

42 Taking all the evidence into account, I am not satisfied that Mr Jakelic poses a risk to public safety or that it would be contrary to the public interest for Mr Jakelic to continue to hold a firearms licence.

Order

The decision of the Commissioner to revoke Mr Jakelic’s firearms licence is set aside.