Kammoun v Commissioner of Police, NSW Police Force

[2021] NSWCATAD 273

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273

Hearing dates:

22 February 2021; 3 March 2021

Date of orders:

20 September 2021

Decision date:

20 September 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

Administrative Law –firearms licensing -- public interest – fit and proper person.

Legislation Cited:

Administrative Decisions Review Act 1997

Evidence Act 1995

Firearms Act 1996

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Commissioner of Police, NSW Police Force v Lee [2016) NSWCATAP 234

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

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63

Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65

Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127

Keegan-Jaques v Commissioner of Police (2017] NSWCATAD 145

Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

Category:

Principal judgment

Parties:

Adam Kammoun (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Kammoun Sukari Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2020/218942

Reasons for Decision

Introduction

1. Adam Kammoun ("the Applicant") has sought external review of a decision by a delegate of the Commissioner of Police (“the Commissioner” or "the Respondent") under the Firearms Act 1996 ("the Act"). The Respondent determined to refuse the Applicant's application for a Category AB firearms licence.

Background

2. The Applicant applied for the Category AB licence for the genuine reason of recreational hunting - vermin control, however, his application was refused on the basis that it would not be in the public interest for the licence to be reinstated. That refusal was affirmed on internal review and he applied to the Tribunal for review of that decision.

Applicable legislation

3. Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. This application is made under section 75 of the Act and the ADR Act.

4. The Tribunal’s jurisdiction includes review of decisions by the Commissioner of Police to refuse to issue a licence or permit; to revoke a licence or permit and to impose a condition on licence or permit.

5. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of that Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.

6. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation. The principles and objects of the Act confirm that possession and use of firearms is a privilege that is conditional on public safety. Section 3(1) provides:

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

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

7. Section 11 of the Act provides for the issuing of licences. Section 11(3) provides:

(3) A licence must not be issued unless:

(a) 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, and

(b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and

(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and

(d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.

...

(5A) A licence must not be issued to a person 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.

...

8. The Tribunal’s function in relation to applications before it is set out in section 63 of the ADR Act:

63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

The Issues for determination

9. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner’s decision and, specifically, whether the applicant is a fit and proper person to have a firearms licence, and whether it is contrary to the public interest for the Applicant to hold a licence under the Act.

10. The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party.

11. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].

12. The discretion must be exercised keeping in mind the activities which are authorised by a licence under the Act. Accordingly, the objects and purposes of the Act are relevant. The principal issue is whether or not there is a risk to the safety of the public if the Applicant is permitted to possess firearms.

13. A certificate under section 128 of the Evidence Act 1995 has been granted to the Applicant in respect of his evidence and his answers to questions posed in cross-examination or arising in re-examination. Section 128 of the Evidence Act provides:

128 Privilege in respect of self-incrimination in other proceedings

(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:

(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or

(b) is liable to a civil penalty.

(2) The court must determine whether or not there are reasonable grounds for the objection.

(3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness:

(a) that the witness need not give the evidence unless required by the court to do so under subsection (4), and

(b) that the court will give a certificate under this section if:

(i) the witness willingly gives the evidence without being required to do so under subsection (4), or

(ii) the witness gives the evidence after being required to do so under subsection (4), and

(c) of the effect of such a certificate.

(4) The court may require the witness to give the evidence if the court is satisfied that:

(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and

(b) the interests of justice require that the witness give the evidence.

(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.

(6) The court is also to cause a witness to be given a certificate under this section if:

(a) the objection has been overruled, and

(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection.

(7) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence:

(a) evidence given by a person in respect of which a certificate under this section has been given, and

(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence,cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

….

Fit and proper person

14. The Act places an emphasis on the need for licensees being fit and proper for the role. The Tribunal has considered the issue of whether an Applicant is a fit and proper person to hold a licence under the Act on numerous occasions.

15. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].

16. In the context of the Act, fitness and propriety “must be considered in the context of at all times ensuring public safety”: Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22].

17. The question of a person’s fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

18. They went on to say at 388:

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

19. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.

20. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term ‘fit and proper’ (at 156-7):

"The expression `fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. `Fit' (or `idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

The Public Interest

21. The Tribunal has also considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:

"25 The “public interest” is an inherently broad concept giving the appellant 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."

22. The 'public interest' allows a consideration of issues going beyond the character of the Applicant to be taken into account. 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.

23. “Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.

The material before the Tribunal

24. The Applicant relies on several statements and his own oral evidence. His evidence includes statements dated 13 October 2020, 13 January 2021 and 18 February 2021. The Applicant attended the hearing, gave evidence and was cross-examined. He also relies on character references provided by David Kammoun, Yahya Sukari and Zakaria El-Turkman.

25. Written submissions have been filed on behalf of the Applicant on 13 October 2020, 13 January 2021, 5 March 2021 and 29 March 2021.

26. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act; a traffic history report in relation to the Applicant; statements by Senior Constable Jaime Masina, Constable Lisa Bowmaker, Senior Constable Michael Matic and Senior Constable Sachin Raj. They each attended the hearing, gave evidence and were cross-examined.

27. On 22 January 2021 I ordered:

1. The Applicants references were admitted into evidence. The referees are not required for cross-examination.

2. The statement of Senior Constable Jamie Masina is admitted into evidence subject to the following:

1. The annexed statements of Nathan Freeland, Mitchell Robinson and Brendon Coppola are not admitted.

2. The Facts Sheet is not admitted.

3. The COPS entries contained within the section 58 material which relate to the events of 24 May 2015 (E 58532279) and 27 February 2018 (E 66994447) are admitted subject to weight.

28. The Respondent also relies on written and oral submissions.

The Respondent’s evidence

The 2 September 2020 incident

Senior Constable Sachin Raj

29. Senior Constable Raj provided a statement in which he gave evidence of an incident said to have occurred on Tuesday 2 September 2020 (“the 2 September 2020 incident”). His evidence was that he was on duty at approximately 9:15pm on that night and was travelling in a vehicle with other officers. He stated that he was seated in the front passenger seat of the police vehicle. He observed a vehicle (“the vehicle”) travelling at high speed and a decision was taken to pull the vehicle over and the police vehicle warning lights and sirens were activated. His evidence was that the driver did not stop but accelerated away at speed. He lost sight of the vehicle but it was subsequently located within the carpark of the Moxon Sports Club (“the MSC”).

30. He stated:

I approached the vehicle with the other officers and observed the driver to be the single occupant. However, despite requests from Police, Mr Kammoun refused to remove himself from the vehicle and had to be removed by Police and placed in handcuffed.

He provided his name as Adam Kammoun and also provided his licence details to allow us to run a check of his licence and criminal history. As a result of those checks and observations made regarding the poor state of the vehicle, we determined that Mr Kammoun and his car should be searched.

Mr Kammoun was searched and nothing of note was found on his person. During a search of his vehicle, cannabis was located in the front dash below the radio. Mr Kammoun was cautioned about the cannabis and asked questions, however he refused to make any comment about it.

Without further information from Mr Kammoun and on the basis that the cannabis had been located in his vehicle and not on his person, a decision was made not to charge him with an offence for possession.

31. Prior to giving evidence at the hearing Senior Constable Raj viewed a video of the incident at the carpark of the MSC. It was apparent from the video that some of the evidence he had given in his statement was incorrect.

32. In his oral evidence before the Tribunal Senior Constable Raj admitted that he had not been seated in the front passenger seat of the police vehicle but was positioned in the rear of the vehicle. He also admitted that the Applicant had not refused to remove himself from the vehicle as he was already outside the vehicle when police arrived at the carpark of the MSC.

31. Under cross-examination he said that he usually sits in the front seat of the Police vehicle so he had assumed that it was the case on 2 September 2020. He conceded that he could have also been mistaken about other observations that he recorded in his statement.

32. Senior Constable Raj conceded that on the night of 2 September 2020 it was dark, the back streets were not well lit and it would have been difficult to see the vehicle in front of him from the rear seat. He conceded that he did not see the number plate of the vehicle in front and he did not make a record of the number plate details. He assumed that someone else had recorded it. He conceded that he did not see the driver at any stage.

33. In his statement Senior Constable Raj stated:

Except where otherwise stated, I make this statement from my own knowledge.

36. However, under cross-examination he conceded that much of the information that he included in his statement was based on assumptions or information that he had been told rather than from his own observations. He also conceded that he had not mentioned these in his statement.

Constable Lisa Bowmaker

37. Constable Bowmaker was not in the vehicle referred to by Senior Constable Raj on the night of 2 September 2020. However, she was in another vehicle with officers who responded to a request for assistance in relation to a vehicle in the carpark at the MSC.

38. She stated that she was informed by officers who were in attendance that they had undertaken a search of the Applicant. She was also made aware that Cannabis had been located in the vehicle.

39. She observed that the vehicle was in extremely poor condition and that the headlights and indicator were ineffective. A major defect was issued and the vehicle was secured.

40. Constable Bowmaker stated that the cannabis was booked into the Exhibits Forensics Information and Miscellaneous Property System to be destroyed as possession was unable to be confirmed.

41. At approximately 11pm on 2 September 2020 Constable Bowmaker recorded into a COPS Event some information of what she had observed along with other information that was provided by other officers.

42. Under cross-examination she conceded that most of the information that she had included in the COPS Event and in her statement was information that she was given by other officers. She confirmed that she tested the headlights of the vehicle and that they would not turn on.

43. She also agreed that she had not seen any cannabis when she was in the carpark at the MSC nor did she hear anyone mention cannabis to the Applicant at that time. She agreed that she was responsible for booking the cannabis into the system and that she was probably given it at the police station.

Senior Constable Michael Matic

44. Senior Constable Matic stated that he was in the police vehicle with Senior Constable Raj and other officers during the 2 September 2020 incident. He said that he believes that he was in the front passenger seat. He stated:

I observed a vehicle with registration CV93ND which appeared to be in poor condition. A decision was made to stop the vehicle so the warning lights were activated on the police car.

Despite following the vehicle for almost a minute with warning lights activated, the driver did not stop the vehicle and in my opinion it was travelling at high speeds in order to evade Police. The vehicle we were in was not a police pursuit vehicle. If it was, the matter would have been classified as a police pursuit.

The vehicle was lost for a short period but was subsequently located again travelling south on Moxon Road before turning into the western corner of the Moxon Road Bowls Club carpark.

The vehicle had turned its lights off the moment it appeared to make attempts to evade Police. Its lights were off in the streets it was seen prior to attending the club.

I approached the vehicle with the other officers and observed the driver to be the single occupant. He provided his name as Adam Kamrnoun and also provided his licence details to allow us to run a check of his licence and criminal history. As a result of those checks and observations made regarding the poor state of the vehicle, we determined that Mr Kamrnoun and his car should be searched. However, despite requests from Police, Mr Kammoun refused to remove himself from the vehicle and had to be removed by Police and placed in handcuffs.

45. Senior Constable Matic also stated that cannabis was located in the Applicant’s vehicle but he was not the officer who located the cannabis. The Applicant was cautioned about the cannabis but he declined to make any comment about it. A decision was made not to charge him with an offence for possession.

46. Prior to giving evidence at the hearing Senior Constable Matic also viewed a video of the incident at the carpark. In his oral evidence before the Tribunal he admitted that the Applicant had not refused to remove himself from the vehicle as he was already outside the vehicle when police arrived at the MSC carpark. He also admitted that the Applicant had not resisted police.

47. Under cross-examination Senior Constable Matic agreed that the decision to pull over the vehicle was not taken because the vehicle was speeding nor was it because the vehicle had taken a sharp turn.

48. Senior Constable Matic could not recall whether he had had a good look at the vehicle. He could not recall the colour of the vehicle. He did not get a look at the driver of the vehicle. He agreed that if he had not been seated in the front of the police vehicle whoever was in that seat would have seen the vehicle’s rego number and undertaken a rego check.

49. Senior Constable Matic confirmed that he had seen the vehicles headlights turned off. He agreed that if the vehicle’s lights were inoperative it must have been a different vehicle to the Applicant’s vehicle which was located in the MSC carpark.

50. Senior Constable Matic agreed that his original evidence was not correct. He also agreed that his evidence has omitted key events. He said that he included the information that he could recall. He agreed that the video footage of the Applicant, the Applicant’s vehicle and the carpark did not show that the Applicant was attempting to leave the scene. He agreed that the only reason for arresting the Applicant that is given in his statement is that the Applicant refused to remove himself from the vehicle and that he had to be removed by Police. However, when questioned about that he stated that the reason for which the Applicant was arrested was that he had been trying to evade Police earlier.

The February 2018 incident

Senior Constable Jaime Masina

51. Senior Constable Masina provided evidence in relation to an incident that occurred on Anderson Street, Belmore at the intersection of Canterbury Road, Belmore in February 2018 (“the February 2018 incident”). Senior Constable Masina stated that he was in an unmarked Police car when he observed a man, who he now knows to be the Applicant, holding a black coloured mobile phone in his left hand up to the left hand side of his face whilst driving a vehicle. The warning devices on the police car were activated, and he followed the Applicant’s vehicle for a short distance until they were able to be stopped.

52. Senior Constable Masina provided an account of the interaction which followed. This resulted in the issue of a traffic infringement notice for the offence of 'Driver use mobile phone when not permitted' to the Applicant.

53. The Applicant denied that he had been using a mobile phone while driving.

54. Senior Constable Masina provided an account of the conversation that followed between himself and the Applicant. He stated that the Applicant was removed from the vehicle as he refused to get out of the vehicle. He also stated that the Applicant swore at him and threatened him and other officers. He also alleged that a struggle ensued as he and other officers attempted to handcuff the Applicant. Senior Constable Masina stated that he was injured in that struggle. He stated:

As a result of the incident, I sustained a minor sprain to my left hand, Senior Constable Freeland sustained minor lacerations to his face, and Constable Robinson sustained a minor laceration to his right hand and a strain to his groin.

55. The Applicant was ultimately taken to the ground and while he was face down on the ground he was placed in handcuffs. The Applicant continued to swear and scream.

56. Senior Constable Masina further stated:

Due to Mr Kammoun's aggressive behaviour, and other information available to officers, I believed that Mr Kammoun may have been in possession of prohibited drugs. Mr Kammoun was informed that the vehicle would be searched. During that search, Police located 3.8 grams of cannabis in a piece of paper in the driver's door well and 3.8 grams of cannabis in the centre console.

Mr Kammoun was subsequently conveyed to Campsie Police Station and introduced to the custody manager. He was offered the opportunity to participate in a notebook interview in relation to the cannabis which he accepted. During the interview, Mr Kammoun made admissions to owning the 3.8 grams of cannabis located in the driver's door well.

57. The Applicant was placed under arrest and charged with the following offences in relation to the incident.

(a)   possess prohibited drug;

(b)   intimidate police officer in execution of duty w/o abh - T2;

(c)   assault officer in execution of duty - T2;

(d)   resist officer in execution of duty - T2; and

(e)   use offensive language in/near public place/school.

58. The Applicant was found guilty of 'use offensive language in/near public place/school' and was fined $200. The other charges were withdrawn

59. Under cross-examination Senior Constable Masina stated that in preparing his statement he relied heavily on a statement that he had made in relation to the Local Court prosecution. He has little independent recollection of the incident. He did not vary his evidence in any material way.

The Applicant's traffic history

60. The Respondent has provided a copy of the Applicant's traffic history. This records that the Applicant has been issued with at least 24 traffic infringements in the past seven years. Five infringements were for not complying with the conditions of a specific licence, three were for speeding, with one of those being for more than 30km/h over the speed limit, and two infringements were for driving while unlicensed.

61. In addition, the Applicant's licence has been suspended a further seven times, with two of those suspensions being extended by further time and increased to include passing a Traffic Offender Penalty Knowledge Test.

The Respondent’s submissions

62. The Respondent's position is that:

(a)   the Applicant has been the subject of a number of criminals charges and convictions;

(b)   the Applicant has demonstrated aggressive behaviour towards police officers in the execution of their duties;

(c)   the Applicant has repeatedly breached traffic laws and regulations aimed at ensuring public safety, indicating a disregard for a regulatory scheme aimed at ensuring public safety;

(d)   the Applicant is not a fit and proper person; and

(e)   it is not in the public interest for the Applicant to hold a firearms licence.

63. The Respondent contends that the correct and preferable decision is to affirm the decision to refuse the Applicant's application for a firearms licence.

The Applicant’s evidence

64. As noted, the Applicant relies on his own evidence and also relies on written references.

The Applicant’s evidence

65. The Applicant provided evidence in relation to his family and his employment and social situation. He stated that he believes that he has matured a lot and is now more responsible than he was three years ago. He has become a lot closer with his religion. He married recently and he wishes to be a good role model to his family. He understands that his actions have consequences for himself, his wife and his family.

66. In relation to his earlier conduct he stated:

Denying traffic offences upon first being pulled over by police

When I was younger, between about 14 and 16 years old, I was told by friends and my employers to deny any traffic offence upon being pulled over by the police and to ask the police to provide their evidence, such as radar or video footage. I was told to do this as the police would not charge me and would let me go, and that any admission I made would be the reason I was to be charged. I was then foolish and immature enough to be influenced by other persons, when I should have known better.

Whilst at work as an apprentice, I often heard stories from my plumbing employer about how he was pulled over by the police for speeding or being on his phone, and that he just denied it and the police did not charge him and just let him go.

I know and accept it was completely wrong for me to have done so, but, at around 14 to 16 years of age, I adopted the mindset that if I denied a traffic offence I had committed, I would not be charged. I then believed it was normal to deny traffic offences, notwithstanding whether in fact they were committed. I had done so on a few occasions prior including the encounter with the police on 27 February 2018. However, each time I received an infringement notice, I did not dispute the infringement notice. If the matter went to Court, I made complete admissions of the offence to the Court. I have not been untruthful to a Court at any time.

I believe that I have since corrected my mindset, matured, and improved my character. If pulled over by the police where I have committed an offence, I intend to accept full responsibility for my actions. I will not deny any traffic offence in the future at any time if, in fact, I have committed the same.

67. He has applied for a firearms licence so that he can go recreational hunting with his friends. He stated that he has no use for the firearms licence otherwise. He stated that if he is to hold allowed a firearms licence he intends to comply strictly with the firearms laws.

68. He also provided evidence in regard to the incidents that I have referred to above.

The 26 May 2015 Incident

69. On 26 May 2015, the Applicant was involved in an incident that resulted in charges for driving whilst suspended, offensive language and behaving in offensive manner.

70. He acknowledges that he was completely at fault for this incident and he pleaded guilty to all charges. He stated that:

This conduct is contrary to my character and I have since learnt from this incident and vouch never to repeat such conduct.

The 27 February 2018 Incident

71. It is not in dispute that the Applicant was driving on 27 February 2018 when pulled over by police who alleged that he had been using a mobile phone while driving. The Applicant provided an account of the incident and the exchange with Senior Constable Masina. He does not dispute that at the time he denied that he had been using the mobile phone. However, he now concedes that his denial was not justified.

72. The Applicant continues to dispute the account of the incident that Senior Constable Masina has provided. He provided an alternative version of the incident to that provided by Senior Constable Masina.

73. The Applicant’s evidence is that Senior Constable Masina issued an infringement for his use of a mobile phone while driving. He stated that as soon as he received the infringement he was overwhelmed with emotions. He was frustrated and upset because he believed that he had lost his driver’s licence as a result of the infringement. He was struggling financially and the amount of the penalty was the equivalent to the pay he was due to receive for that day and the previous day’s work.

74. He said that he was very angry because of the way that Senior Constable Masina had been speaking to him and this was reflected in the exchange he had with Senior Constable Masina. As a result, he was placed under arrest for offensive language.

75. He said that he did not resist or push back in any way. Nevertheless, he was removed from his car, slammed to the concrete floor and kneed in the back. He was very angry and in a lot of pain. His arms were grabbed and wrenched behind his back. His shoulders and wrists were in extreme pain. He was then moved from the road to the footpath and shoved into a fence. He said that he felt as if he was being attacked and he screamed. He stated:

The police then slammed me on the concrete footpath and placed the handcuffs on me. They then twisted my arm and gave me a few more knees to my back. All whilst Officer Masina was laughing and slapping the back of my head.

76. He said that due to the incident he sustained injuries to his hands and wrists, a grazed left leg and a sore lower back. It took him about three months to recover fully from the incident. During that period he struggled with sleep, was unable to play sport and had to take a number of days off work.

77. The Applicant maintains that the arrest was unlawful. He was ultimately convicted of 'Use offensive language in/near public place/school" and received a fine of $200. The remaining charges were withdrawn.

78. As noted, the Applicant has changed his position in relation to the allegation that he had been using a mobile phone whilst driving. He stated:

I take full responsibility for my conduct in driving whilst on my phone and I do not in any way blame the police for the loss of my licence. I do not hold the police in contempt for issuing me a fine for being on my phone. I should not have been on my phone. They were doing their job, protecting the community and enforcing the law.

The 2 September 2020 Incident

79. The Applicant’s evidence is that between about 7:20pm and 8:30pm on 2 September 2020 he was visiting his wife at her parent's home. He recalled praying at her place and then deciding to go to the MSC. He was driving a 2004 Subaru Forester (“his vehicle”). His vehicle had intermittent electrical problems and he had arranged to see his mechanic the following day to rectify those problems.

80. He entered his vehicle at about 8:30 pm on 2 September 2020. He attempted to switch on the front headlights, but they did not turn on. He drove straight to the MSC knowing that the path to the MSC would be well lit. In relation to the route that he took and his arrival at the MSC he stated:

On the way to the MSC, I recall driving onto Canterbury Road, punchbowl, and turning right onto Moxon Road, Punchbowl. This is the usual way I take when I travel to the MSC. At no time did I take any sharp or quick turn. I was driving at the normal speed limit.

At no time did I turn left from Moxon Road to Weyland Straight. At no time did I turn or drive onto Bramhall Avenue. At no time did I turn left onto Carlton Parade. Instead, I drove straight from Moxon Road to the MSC, which is a straight path.

I arrived at the MSC at about 8:50pm.

At no time whilst I was driving did any police vehicle turn on any warning lights or a siren next to me. At no time did any police vehicle request or indicate to me to pull over in any way. At no time did I switch off my headlights when I was driving from Moxon Road to the MSC. My headlights were never turned on from the outset due to the reasons set out above.

At no time did I speed whilst driving to the MSC. I was driving at the normal speed limit.

When I first arrived at the MSC, I parked at the first available parking. I then decided that this was too far from the entrance and to move my Forester closer to the entrance. I then drove my forester and parked near the entrance of the MSC. I switched off my Forester and exited it.

At this time, I was completely unaware that Police were after me for any reason.

I grabbed something from my Forester and then stood in front of it as a white car with about (4) police officers pulled over to the right of my Forester and exited the white car. At that time, I still had no idea what was happening.

The four (4) police officers, without warning, just grabbed me and pinned me onto my Forester and put in my handcuffs. I kept saying to them: "Officers, what is happening?", "Officers, what did I do?" and "What is the matter officers". The police did not answer me but instead took me to the side whilst I was in handcuffs and sat me down in front of my Forester. I recall being requested to provide my name, which I did. I also recall being requested to provide my driver's license, which I did. At no time did I hesitate to provide this information to the Police. At no time did I think that I did anything wrong or was I worried about anything.

81. In response to the evidence of Senior Constable Raj and Senior Constable Matic, the Applicant denied that any police officer told him to get out of his vehicle or that he refused to get out of his vehicle. He was already out of his vehicle when the police approached him.

82. The Applicant’s version of events is supported by video footage of the incident obtained under summons from the MSC.

83. He also stated that he was never told that he was under arrest for any reason. It was never explained to him why the police had grabbed him, pinned him to the car and put him in handcuffs. At no time was he informed by any police officer that cannabis was found in his vehicle. At no time did any police officer show him any cannabis from his vehicle. He stated that he is not aware of any cannabis being located in his vehicle. He said that the police had searched him and his vehicle without his permission and without informing him as to why they were going to do so or the legal basis to do so.

84. He said that he does not use cannabis and, if there was cannabis in his vehicle it does not belong to him. He denied that he has any history of drug supply and drug use.

85. The Applicant stated that at no time was he charged for evading police or for possessing drugs.

Prohibited drugs

86. In relation to the suggestion that the Applicant may have been in possession of prohibited drugs he stated:

I do not use, possess, sell or involve myself in any way in any prohibited drugs.

It is against my religion to use, possess, sell or involve myself in any way in any prohibited drug, which is an intoxicant of the mind.

The Applicant’s traffic record

87. The Applicant does not dispute the accuracy of the traffic record provided by the Respondent. In regard to his record the Applicant stated:

I regret disobeying the traffic laws, including driving without displaying 'P' plates. I have since made a conscious effort to use my best endeavours to adhere to and comply with each and every single traffic law.

I accept that I have repeated certain traffic offences on a number of occasions and am remorseful for this. I should not have committed such offences the first time, let alone repeated them. I am sorry for having done so and I believe that, mentally, I have matured a lot and have improved, and that a lot of these were committed due to my immaturity.

I do not have any intention of committing or repeating any traffic offences in the future.

The Applicant’s references.

88. Each of the Applicant’s referees has indicated that they are aware of the conduct that has resulted in the refusal of the Applicant’s licence application. Each has indicated that they have seen the Applicant mature quite a bit over the past few years and stated that the way he presently behaves is inconsistent with his past conduct.

Consideration

89. This is a matter in which the evidence is significantly in dispute.

90. The Applicant has conceded that he had falsely maintained his innocence in regard to the allegation that on 27 February 2018 he had driven while using a mobile phone.

91. The Respondent’s witnesses conceded that the evidence that they provided in relation to the 2 September 2020 incident was not accurate. These concessions were necessary because of video footage which supported the Applicant’s evidence in relation to the events that took place in the carpark of the Moxon Sports Club. Some of the evidence was either implausible or highly improbable. In these circumstances there is considerable doubt in regard to the accuracy of the Respondent’s records relating to that incident and the reliability of the Respondent’s evidence in relation to the 2 September 2020 incident.

92. The Applicant’s solicitor has made detailed submissions in relation to the weight to be given to the evidence given by Respondent’s witnesses and I essentially agree with those submissions.

93. In these circumstances I am not satisfied that the conduct alleged to have occurred on evening of 2 September 2020 is correctly attributable to the Applicant. I am not satisfied that the Applicant was the driver of the vehicle that the police followed, with warning lights activated, and in which the driver was travelling at high speeds in order to evade Police.

94. Nevertheless, given the Applicant’s concessions in regard to the 27 February 2018 incident and the extent of his traffic record, it is my view that insufficient time has passed for me to be satisfied that the Applicant should be permitted to possess firearms.

95. I accept that the Applicant’s circumstances have changed in that he has recently married and that he has reconnected with his religion. I accept that it is likely that as a result of these changes the Applicant has undergone a significant transformation in his personal life. He has acknowledged that he was at fault in some of his interactions with police. He has accepted that his conduct was irresponsible and he has expressed remorse for this.

96. He has accepted that through his immaturity he had little regard for the traffic laws. He has stated that he now understands the importance of the traffic laws and he has undertaken to not repeat the type of conduct that he had exhibited previously.

97. The Applicant's reasons for seeking the firearms licence is that he wishes to participate in hunting activities with friends. This personal interest in having his licence cannot outweigh the public interest. The public's right to safety must outweigh an individual's privilege to possess and use a firearm.

98. The Tribunal can have regard to a wide range of factors in determining the public interest. The consideration is not limited to matters arising under the Act.

99. The Tribunal has held that an applicant’s history of repeated breaches of traffic laws and regulations is a relevant consideration in regard to firearms licensing issues. The traffic laws and the firearms legislation are all directed towards ensuring public safety. In Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145, SM Scahill said at paragraphs [57] and [81]:

The Applicant’s traffic infringement history

1. The Applicant was unable to recall the traffic offences. Some of the offences are repeated e.g. speeding, PCA and not wearing a seatbelt – the last, on three occasions. On one view this demonstrates that the receipt of infringements had made little impact on the Applicant. They did not cause him to change his behaviour. The repeated infringements also suggest a lack of concern for either the public’s or his own safety.

…

1. The Tribunal is satisfied, viewing the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. The Tribunal considers it is relevant that the Applicant was in possession of what on balance appears to be a prohibited weapon. The Applicant professed ignorance of this and said he was not an expert on firearms.

   100. The level of co-operation and frankness demonstrated by a licensee in dealings with the regulator is indicative of the licensee’s character: DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at paragraph [57].

   101. The Tribunal must consider all relevant matters and give "proper, genuine and realistic" consideration to each of the relevant matters. As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at paragraphs [24] to [25]:

2. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the “overriding need to ensure public safety”: Firearms Act s 3(1)(a). Public safety is improved by “imposing strict controls on the possession and use of firearms” and by “promoting the safe and responsible storage and use of firearms”: Firearms Act s 3(1)(b). The objects of the Act include “to establish an integrated licensing and registration scheme for all firearms;” “to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;” and “to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms”: Firearms Act, s 3(2)(b), (c) and (d).

3. In that statutory context it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi [Hijazi v Commissioner of Police, NSW Police Force [2015] NSWCATAP 82] does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or permit as irrelevant considerations.

   102. In the present matter, viewing the Applicant's conduct as a whole, it is my view that that at this time it is not in the public interest for the Applicant to hold a firearms licence. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. The traffic laws and the firearms legislation are also directed towards ensuring public safety. The Applicant's repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme aimed at ensuring public safety. By his own admission he has had an attitude which showed a disregard for regulations that govern his behaviour.

   103. In the circumstances I cannot be satisfied that there is virtually no risk to the community presented by the Applicant’s licensing to possess firearms. This situation may well change given the passage of more time if the Applicant continues to demonstrate that he has developed a responsible attitude to compliance with his obligations. However, at this time the correct and preferable decision is the refuse to grant the licence that he is seeking. Accordingly, the Respondent’s decision should be affirmed.

   104. Given this finding, it is not necessary that I determine whether or not the Applicant is a fit and proper person to hold a firearms licence.

Order

The decision under review is 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: 20 September 2021