Joseph v Commissioner of Police, NSW Police Force

[2019] NSWCATAD 4

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Joseph v Commissioner of Police, NSW Police Force [2019] NSWCATAD 4
Hearing dates:	3 September 2018
Date of orders:	02 January 2019
Decision date:	02 January 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	The respondent’s decisions to revoke the applicant’s firearms licence and high calibre pistol permit are affirmed.
Catchwords:	ADMINISTRATIVE LAW- Firearms – Where respondent revoked applicant’s firearms licence and high calibre pistol permit – Where charges against applicant for obtaining a benefit by deception had been made in 2007 then withdrawn – Where applicant gave no evidence and made no submissions as to respondent’s evidence of underlying conduct – Where applicant admitted to making misleading applications for permits to acquire guns in 2012 – Where senior police officer provided positive evidence about applicant’s character – Where applicant found guilty of firearms offences committed in January 2017 which related to imitation firearms he was selling as toys – Where applicant found guilty of possessing a prohibited weapon
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW) Weapons Prohibition Act 1998 (NSW)
Cases Cited:	Commissioner of Police v Joseph [2015] NSWCATAP 9 Commissioner of Police v Joseph [2016] NSWCATAP 124 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981 CXJ v Commissioner of Police [2017] NSWCATAD 39 Director of Public Prosecutions v Smith [1991] 1 VR 63 Hawkins v Commissioner of Police, NSW Police Force [2011] NSWADT 190 Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 Joseph v NSW Commissioner of Police [2017] NSWCA 31 Lee v Health Care Complaints Commission [2012] NSWCA 80 Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Marsleno Joseph (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: Mainstone Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2017/00379599
Publication restriction:	Publication of certain parts of the evidence is prohibited pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

1. This was a review of a decision of the Commissioner of Police (“Commissioner”) to revoke Mr Joseph’s firearms licence and his pistol permit.

2. The Commissioner revoked the authorisations following charges brought against Mr Joseph relating to possession and storage of imitation firearms which he was selling as toys. He was later found guilty of these offences with no conviction being recorded.

3. Mr Joseph’s commission of the firearms offences enlivened the Commissioner’s power to revoke his firearms licence and pistol permit. Mr Joseph reasonably (although incorrectly) understood it to be lawful to sell the imitation toys. This finding favours non-revocation of the licence and permit. However, Mr Joseph has engaged in serious conduct of a dishonest nature in the past, including by submitting misleading application forms to the Firearms Registry. There is no evidence of remorse for or insight into this conduct. He has also, recently, been found guilty of possessing a prohibited weapon.

4. In these circumstances, I consider that the Commissioner’s decisions to revoke his licence and permit are the correct and preferable decisions.

Background

5. Mr Joseph managed a hunting store called “Son of a Gun.” Neither the business nor Mr Joseph held a current firearms dealer licence. Mr Joseph held a Category AB firearms licence and a pistol permit.

6. On 6 January 2017, police executed a search warrant at Mr Joseph’s premises, having been given information that imitation firearms were being sold from his business location. They found imitation firearms offered for sale in a glass display cabinet in the shop. They also found handcuffs (a prohibited weapon) in the safe in the apartment above the shop where Mr Joseph lived.

7. On 25 May 2017, Mr Joseph was charged with 95 firearms offences relating to the imitation firearms. These included possess unauthorised pistol and firearm (Firearms Act, s 7(1)), not keep firearm safely (Firearms Act, s 39(1)(a)), possess unauthorised firearm (Firearms Act, s 7A(1)) and acquire firearm without licence or permit (Firearms Act, s 50(a)). He was also charged with possessing a prohibited weapon (the handcuffs) without a permit, under s 7(1) of the Weapons Prohibition Act 1998.

8. On 5 June 2017, the respondent (“the Commissioner”) decided to revoke Mr Joseph’s firearms licence and his high calibre pistol permit. These decisions were affirmed on internal review.

9. In February 2018, Mr Joseph pleaded guilty to eleven offences relating to imitation firearms and handcuffs.

10. On 9 February 2018, without proceeding to conviction, the court found Mr Joseph guilty of eleven offences, including possessing the handcuffs without a permit. The charges other than those of which he was found guilty were taken into account by the Court on a “Form 1.” The court conditionally discharged Mr Joseph pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 for a period of six months. That period had expired before the hearing in these proceedings.

Basis upon which revocation sought

11. No orders were made for the filing and service of written submissions in these proceedings. Mr Zoppo, for the Commissioner, relied upon the internal review decision in lieu of submissions.

12. The internal review officer relied upon the following circumstances in which a firearms licence may be revoked:

1. for any reason for which the licensee would be required to be refused a licence of the same kind, including that the Commissioner is not 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 (Firearms Act 1996, s 11(3)(a), s 24(2)(a)).

2. the licensee contravenes any provision of the Firearms Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention (Firearms Act, s 24(2)(b)(ii)); and

3. the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence (Firearms Act, s 24(2)(d) and Firearms Regulation 2017, cl 20).

13. The internal review officer also relied upon the power to revoke a permit if the Commissioner considers that it is not in the public interest for the permit holder to continue to hold it (Firearms Act, s 30(4)(b); Firearms Regulation, cl 21(1)(a)).

14. A permit may also be revoked for any reason for which a licence may be revoked under the Firearms Act (FirearmsAct, s 30(4)(a)). I have considered this ground for revocation, even though it is not relied upon in the internal review report, as Mr Joseph has had an opportunity to address the matters relied upon by the Commissioner in relation to revocation of his firearms licence.

Has Mr Joseph contravened the firearms legislation?

15. It is not in dispute that Mr Joseph contravened the firearms legislation.

16. I find, on the basis of Mr Joseph’s admissions and the court’s findings of guilt, that Mr Joseph contravened provisions of the Firearms Act. This enlivens the power to revoke his licence in s 24(2)(b)(ii) of the Firearms Act.

17. It is then necessary to consider whether the revocation of Mr Joseph’s licence is the correct and preferable decision (Firearms Act, s 75(1)(c); Administrative Decisions Review Act 1997, s 63(1)). This is a discretionary decision. As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act: Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 at [25]; Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at [72]; Hawkins v Commissioner of Police, NSW Police Force [2011] NSWADT 190 at [53].

18. Several discretionary factors are relevant to this assessment. These include:

1. The circumstances of the offences of which Mr Joseph was found guilty in February 2018;

2. The circumstances surrounding charges brought against Mr Joseph in 2007 for obtaining a benefit by deception;

3. The provision of misleading application forms to the Firearms Registry in 2012;

4. Other conduct of Mr Joseph.

Circumstances of 2018 proceedings

19. The findings of criminal guilt made against Mr Joseph in 2018 related to the acquisition, possession and storage of imitation firearms. Pictures of the firearms were in evidence and they were displayed in boxes which clearly looked like children’s toys. Some had a label attached to them with a head “TOY PISTOLS PRODUCED FOR CHILDREN 8 YEARS OLD +”. The imitation firearms were displayed openly in the shop.

20. The Firearms Act generally applies to an imitation firearm in the same way as it applies to a firearm, but “an imitation firearm does not include any such object that is produced and identified as a children’s toy” (Firearms Act, s 4D(1) and (4)).

21. I accept Mr Joseph’s evidence that he genuinely believed the items displayed in his shop to be children’s toys.

22. The Local Court deal with a similar issue as to the characterisation of items resembling firearms, which were claimed to be children’s toys, in February 2017. The Court found that seized items were “children’s toys” within s 4D(4) of the Firearms Act and so were not “imitation firearms” to which the Firearms Act applied. On appeal, the Supreme Court found, in July 2017, that the magistrate had erred in the construction of s 4D(4) by not separately considering evidence relevant to the “production” and “identification” of the items as children’s toys (Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981).

23. I find that it was not unreasonable, in and before January 2017, for Mr Joseph to have formed the view that it was lawful to sell the items which Mr Joseph considered to be children’s toys.

24. The sentencing judge described Mr Joseph’s offences as being “at the bottom end of the range” and commented that many of the prohibited replica weapons looked like toys.

25. The circumstances relating to the imitation firearms offences are such that, without more, I would not be inclined to affirm the revocation of his licence or permit.

26. The offence of possessing a prohibited weapon (the handcuffs) without a permit, under s 7(1) of the Weapons Prohibition Act 1998, is not subject to the same mitigating circumstances. Whilst this is not an offence which enlivens the power to revoke under s 24(2)(b)(ii) of the Firearms Act, it is nevertheless relevant to the consideration of whether revocation is the correct and preferable decision.

27. Senior Constable Daniel Davies gave evidence that, when he searched Mr Joseph’s premises during a routine search in about October 2016, there were no handcuffs in the safe (the place they were found in January 2017). Mr Joseph said that the handcuffs were stored deep in the safe, on the top shelf and that they had not been moved. It was uncontroversial that the safe was on the floor. Senior Constable Davies said that his inspection of the inside of the safe was to look at bolts located on the base of the safe.

28. Mr Zoppo, for the Commissioner, submitted that I could conclude from Senior Constable Davies’ evidence that Mr Joseph had handled the handcuffs, between October 2016 and the search of his premises in January 2017. I am not satisfied that Mr Joseph had moved the handcuffs between October 2016 and January 2017 when they were located in a search. It is possible that, given the location of the safe and the purpose of the inspection, they were on the top shelf and not observed by Senior Constable Davies.

29. Mr Joseph’s evidence was that he came into the possession of the handcuffs when working as a security guard in about 2005. He bought them from a store in Penrith. When asked in cross examination whether he had a permit to possess the handcuffs, he said he could not remember but that he had completed a course relevant to the handcuffs in about 2005 or 2006. He said that he had put them in his safe and had forgotten they were there.

30. I am not satisfied that Mr Joseph ever had a permit to possess the handcuffs or was otherwise authorised to possess them. Even if he was so authorised, he should have surrendered the handcuffs when that authorisation ceased. There is no reasonable excuse for his failure to do so.

31. The offence is relevant to the discretion to revoke Mr Joseph’s firearms authorities, because the statutory regimes under the Firearms Act and Weapons Prohibition Act have similar objects (see s 3 of each Act) and are both concerned with imposing strict controls on the possession and use of weapons.

Fraud charges

32. Mr Joseph was not asked and did not answer any questions about the material concerning charges brought against him in 2007 relating to allegedly fraudulent activity. Nevertheless, the Commissioner provided evidence relating to those charges and I have had regard to it.

33. Police material from March 2007 indicates that Mr Joseph and another man attended a service station in the early hours of the morning on three different occasions and purchased a large quantity of goods using a key card with no money on it. In one incident, at about 2am, Mr Joseph’s associate told the person at the service counter they wanted to buy all the cigarettes in the shop. They also asked to purchase 40 recharge mobile phone cards. The combined value of the items was over $3,000. They purchased the items with a Commonwealth Bank key card.

34. Mr Joseph and his associate then repeated this at other locations in the early hours of the morning, sometimes using a different Commonwealth Bank key card. In total, they purchased goods worth over $12,000.

35. The Commonwealth key cards were not linked to activated accounts. They worked despite the lack of funds due to a technical deficiency in the bank’s security system.

36. Mr Joseph was charged with several counts of obtain benefit by deception under s 178BA of the Crimes Act 1900 (NSW). Following a search of Mr Joseph’s premises, he was also charged with having in his property $6,450 in cash which may reasonably be suspected of being stolen or unlawfully obtained (Crimes Act, s 527C(1)(a)).

37. For some reason, which is not clear, the charges were withdrawn.

38. The Commissioner provided a significant amount of evidence which tended to show that Mr Joseph had committed the alleged offences. This included statements by police officers, receipts for purchases of the goods alleged to be unlawfully obtained, photographs of personal identification cards found upon Mr Joseph at the time of his arrest, photographs of tobacco products found by Police in his possession at the time of his arrest, images from CCTV footage apparently showing Mr Joseph at service stations at the relevant times, and statements from persons present at scenes of the alleged crimes and from Commonwealth Bank officers.

39. The Commissioner has relied upon this material in previous tribunal proceedings. Mr Joseph applied to the former Administrative Decisions Tribunal in April 2013 for review of a decision of the Commissioner to refuse his application for a firearms dealer licence. The Commissioner sought to rely upon the 2007 police brief in those proceedings, but the Tribunal upheld an objection to admitting it. The Tribunal found that it would be prejudicial to the applicant, that he had not had the opportunity to challenge the evidence and that he need not be pressed to do so before the Tribunal (see the material quoted in Commissioner of Police v Joseph [2015] NSWCATAP 9 at [21]).

40. The Appeal Panel of this Tribunal found that the Tribunal had made an error in failing to consider the police brief (Commissioner of Police v Joseph [2015] NSWCATAP 9 at [11]-[29]). It referred (at [18]) to s 63 of the Administrative Decisions Review Act which requires the Tribunal to have regard to “any relevant factual material.”  It said that the correct approach was first to determine whether the material was relevant and, if so, to deal with any concerns about self-incrimination (at [28]).

41. The Appeal Panel then extended the appeal to the merits. The Appeal Panel said of the evidence relating to the 2007 charges (Commissioner of Police v Joseph [2016] NSWCATAP 124 at [45]-[47]):

“45   In our view, it is plain that Mr Joseph was involved in questionable conduct on the nights in question. He was purchasing commercial quantities of the items mentioned, and if he did not actually know that his card was short of funds, in our view he ought to have known, in circumstances where the linked account had been in overdraft from 1 June 2006 to 15 September 2006, and was formally closed by written notice from the bank on 15 November 2006.

46   Further, the purchases were made from service stations late at night. They involved the payment of the usual retail price per item, with no discount for the commercial quantities involved. The operators at the service station were told the applicant and his companion had to stock a shop that was about to open. Understandably, the operators were highly suspicious of the conduct.

47   In our view, this material is clearly relevant to the assessment of Mr Joseph’s fitness and integrity, and to the public interest in granting him a dealer’s licence. The purchases were on a scale that was of a commercial character. We infer that Mr Joseph had a business purpose of some kind in making the purchases, and must have intended to trade in the goods in some way. We do not need to get involved here in the further question of whether he had a criminal intent of the kind necessary to establish a criminal offence.”

42. The Court of Appeal dismissed an appeal from the Appeal Panel’s decision (Joseph v NSW Commissioner of Police [2017] NSWCA 31), including on the ground that the Appeal Panel erred in finding that the 2007 fraud evidence was wrongly excluded by the Tribunal. Macfarlan JA observed that “Mr Joseph’s engagement in [the 2007] conduct was relevant to the question of whether he should be permitted to deal in firearms” (at [49]).

43. Like the Appeal Panel, I am satisfied that the material relating to the 2007 charges establishes that Mr Joseph made purchases of large quantities of goods from service stations. I am also satisfied that there is sufficient material from which it may be inferred that Mr Joseph knew that his card did not have funds when the purchases occurred. He had, before the conduct occurred, been sent correspondence and statements from the Commonwealth Bank, showing that his account was in debit. I find that he behaved dishonestly in obtaining the cigarettes and mobile phone cards.

44. There are some considerations which might support Mr Joseph retaining a firearms licence, even though the Appeal Panel found he should not hold a firearms dealer licence. Two and a half years has passed since the Appeal Panel’s decision. The fraudulent conduct the subject of the 2007 charges occurred nearly twelve years ago. In addition, as the Commissioner accepted, a higher standard applies to a person applying for or holding a firearms dealer licence than that applicable to a person holding a firearms licence (Commissioner of Police v Joseph [2016] NSWCATAP 124 at [30]-[32]).

45. Mr Joseph has the benefit of a character reference from a senior police officer. Sergeant Brealey has known Mr Joseph for over ten years and has been his friend for about six years. Sergeant Brealey gave evidence that Mr Joseph is incredibly trustworthy, very honest and that he had always been somebody who has had a very good conscience. Sergeant Brealey accepted, during cross examination, that a person who produces a card and tries to acquire $12,000 worth of goods where there are no funds in the person’s account, is behaving dishonestly. Sergeant Brealey also accepted that, if the allegations of fraud were true, that would affect his view of Mr Joseph’s character. However, he said that whilst he could not comment on Mr Joseph’s character in 2007, from 2013 he could not criticise him.

42. The passing of time since the 2007 conduct gives rise to the possibility that Mr Joseph’s character has changed. Where criminal conduct occurred some time ago, there is always the possibility of rehabilitation. However, Mr Joseph’s conduct was objectively very serious. It involved planned deceitfulness to obtain financial benefits. Mr Joseph has not expressed any remorse for the conduct in 2007; he has failed to acknowledge or address it at all.

43. Whilst I accept that Mr Joseph has exhibited the commendable characteristics Sergeant Brealey referred to in some aspects of his life, and in his dealings with Sergeant Brealey, there is further conduct of concern, of a dishonest nature. It also appeared, during the cross examination of Sergeant Brealey, that Mr Joseph had not revealed the full extent of his past wrongdoings to Sergeant Brealey.

Misleading application forms

48. On different dates in January and February 2012, Mr Joseph made sixteen applications for a permit to acquire a handgun and eight applications for a permit to acquire high calibre pistols.

49. In February 2012, the Firearms Registry wrote to Mr Joseph stating that he was already in possession of 21 handguns which were registered in his name and his applications to acquire a further sixteen handguns raised doubt that his firearm licence genuine reason of target shooting could be justified.

50. A few days later, Mr Joseph wrote back stating: “My original intention was to submits these applications under collectable, but for an unfortunate event I had to submitted these under the target shooting instead.” He explained that, “As there are good deals being offered from a local firearms dealer. I am currently in the process of setting up a firearms business of my own; I feel this is a too good opportunity to pass up. There for I bought and paid for these firearms and looking to put them under collectibles until I finalise my business set up. They will then of course be transfer to the appropriate permits when I acquire my firearms dealer licence.”

51. On 15 March 2012, the Firearms Registry refused Mr Joseph’s “permit to acquire” applications.

52. Some time in March 2012, Mr Joseph applied for a firearms dealer licence.

53. Mr Joseph accepted, in cross examination, that he had already bought the guns when he applied for the permits and that he had bought them because they were cheap. He had decided he would provide an excuse to buy guns, knowing that he would not get the permit to acquire them for a firearms business. He agreed that he had certified that the information in the application forms was true and correct, knowing it to be untrue. He said, however, that when asked for an explanation, he had to tell the truth. It was submitted for Mr Joseph that the fact that he told the truth in response to the letter from the Firearms Registry “goes to his integrity.” However, the circumstance that he deliberately misled the Firearms Registry when making the applications also reflects upon his integrity.

54. Evidence of the conduct concerning the application forms was before the Tribunal in its review of the Commissioner’s refusal of his application for a firearms dealer licence. It found that he had breached s 70 of the Firearms Act in providing information in each application which was false and misleading in a material respect in respect of the reason for the acquisition of each gun (see Commissioner of Police v Joseph [2016] NSWCATAP 124 at [34]-[35]).

55. I agree.

56. It is to Mr Joseph’s credit that he was truthful when replying to the letter from the Firearms Registry questioning his genuine reason for acquiring the guns. However, this does not excuse purchasing the guns before making the applications, nor giving a false reason for their acquisition. This undermines one of the objects of the Firearms Act, being “to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm” (s 3(2)(c)).

57. The provision of misleading information to the Firearms Registry on multiple occasions is not conduct which is to be expected of a holder of a firearms licence. As Montgomery JM commented in Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at [25], “[r]esponsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them.”

58. The Appeal Panel remarked, in relation to the evidence concerning the misleading application forms, in Commissioner of Police v Joseph [2016] NSWCATAP 124 at [59]-[61]:

“59   In our view, Mr Joseph’s subjective belief as to why he filled out the forms in the way is not a sufficient basis upon which to set to one side his conduct in that regard.

60   The making of applications for the possession of firearms is one of great sensitivity for the safety and welfare of the community.

61   A fair minded, reasonable applicant would, we think, have recognised that the lodgement of numerous pistol permit applications over a short period could not reasonably be justified by reference to the need to pursue an interest in target shooting. A sporting shooter could not, we consider, have reasonably believed that there was any justification for a series of applications. He or she should have realised that without having to be told it was wrong by a police officer (Mr Joseph’s explanation for desisting eventually, and proceeding with a dealer licence application). This conduct, in our view, casts considerable doubt on the likelihood that Mr Joseph can be trusted to uphold the standards of integrity and accountability required of a firearms dealer.”

59. The comments of the Appeal Panel remain applicable. It is now nearly seven years since the conduct occurred. This raises the possibility of reformation. However, there was nothing in Mr Joseph’s evidence to indicate sincere regret for what he had done. He said that he could “understand that it appeared to the Registry that I was trying to mislead them but it was not done with any sinister intent”; rather, it “was done in anticipation of obtaining a licence that wasn’t ultimately granted.” This explanation does not adequately acknowledge Mr Joseph’s responsibility for providing misleading information to the Firearms Registry. The passage of time does not, of itself, demonstrate a reformation of his character: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [72] to [73]; Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637.

Other conduct

60. A non-publication order, made at the time of the hearing pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, applies to the evidence the subject of discussion in the following paragraphs.

61. [NOT FOR PUBLICATION]

62. [NOT FOR PUBLICATION]

63. [NOT FOR PUBLICATION]

64. [NOT FOR PUBLICATION]

65. None of Mr Joseph’s dishonest conduct is very recent. Nevertheless, it is serious. In March 2012, the offence of obtaining money by deception under s 178BA of the Crimes Act carried a penalty of five years’ imprisonment. Mr Joseph was charged with many counts of this offence. Further, his deceptive conduct in 2012 targeted officers of the Firearms Registry and tended to undermine the integrity of the permit system. It effectively abused the privilege of holding a firearms licence (see Firearms Act, s 3(1)(a) and Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at [73]). In the absence of any expression of regret for this conduct, I cannot be satisfied that Mr Joseph has any insight into his wrongdoing or that he would not behave in a similar way in future.

Conclusion

66. Taking into account the discretionary factors discussed above, I consider that the Commissioner’s revocation decisions are the correct and preferable decisions and should be affirmed (see Firearms Act, ss 24(2)(b)(ii) and 30(4)(a)).

Public interest

67. Whilst it is not strictly necessary for me to do so, I will briefly consider the Commissioner’s contention that revocation of the licence and permit is warranted on the basis that it is not in the public interest for Mr Joseph to continue to hold those authorities (Firearms Act, ss 24(2)(d) and 30(4)(b); Firearms Regulation, cl 20 and 21(1)(a)).

68. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], in the context of a security industry licensing appeal, the Appeal Panel of the Administrative Decisions Tribunal made the following comments about the concept of the “public interest”:

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

69. The interest of the public must be preferred to the private interest of the individual (see Director of Public Prosecutions v Smith [1991] 1 VR 63; CXJ v Commissioner of Police [2017] NSWCATAD 39 at [44]).

70. I consider that it is not in the public interest for Mr Joseph to continue to hold a firearms authority, having regard to all of the circumstances set out above under the headings “Circumstances of 2018 proceedings,” “Fraud charges,” “Misleading application forms” and “Other conduct.”

71. In particular, it is not in the public interest for a person who has deliberately attempted to mislead the Firearms Registry in multiple application forms to hold a firearms authority, in circumstances where he has not demonstrated that he regrets the conduct and would not engage in it again. In addition, the finding of guilt in relation to holding a prohibited weapon is relatively recent, and the conduct is largely unexplained (other than by the unsatisfactory explanation that Mr Joseph forgot he had the weapon). These matters are relevant to the maintenance of the integrity of the (related) legislative systems for managing firearms and prohibited weapons.

Fitness and propriety

72. In light of my findings above, it is not necessary for me to consider the other ground relied upon by the Commissioner. This was that “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” (Firearms Act, s 11(3)(a), read with s 24(2)(a)).

73. As indicated earlier, Mr Zoppo, for the Commissioner, told the Tribunal that he adopted the internal review report in lieu of written submissions. The internal review report relied upon a lack of fitness and propriety as one of the grounds for revocation of Mr Joseph’s firearms licence. However, it was not entirely clear from Mr Zoppo’s closing oral submissions that the Commissioner maintained, by the end of the hearing, that Mr Joseph was not a fit and proper person to hold a firearms authority.

74. In his closing oral submissions, Mr Zoppo referred to a reference in the evidence to Mr Joseph being of “exceptional character” and said that the evidence in these proceedings did not get to that level. Mr Zoppo did not expressly address the application of the case law relating to fitness or propriety, nor did he refer to Mr Joseph’s fitness or propriety in those terms. This may have given Mr Joseph and his representative the impression that the Commissioner was not, by the end of the hearing, going so far as to submit that he was not a fit and proper person. Given that there is some room for doubt about this, I have determined the proceedings on other bases.

Orders

75. I make the following order:

1. The respondent’s decisions to revoke the applicant’s firearms licence and high calibre pistol permit are affirmed.

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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 January 2019