Kocic v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 32

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Kocic v Commissioner of Police, NSW Police Force [2023] NSWCATAD 32

Hearing dates:

30 November 2022

Date of orders:

8 February 2023

Decision date:

08 February 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member

Decision:

The respondent’s decision is affirmed.

Catchwords:

LICENSING – firearms licensing – refusal to issue licence – public interest – fit and proper person – failure to change storage address- criminal association - confidential evidence.

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

Austin v Commissioner of Fair Trading [2016] NSWCATAP 179

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Comalco Aluminium (Bell Bay) Ltd v O’Connor and Ors [1995] IRCA 540; (1995) 131 ALR 657

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

Davos v Commissioner of Police [2013] NSWADT 7

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

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

Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127

Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Senad Kocic (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Hartmann & Associates (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2022/00134186

Publication restriction:

1. Pursuant to s49 of the Civil and Administrative Tribunal Act 2013 (CAT Act) the hearing of the application in the substantive hearings be conducted in the absence of the applicant, the legal representatives of the applicant and the public insofar as it relates to the information contained in the documents referred to in the confidential affidavit;
2. Pursuant to s64(1)(c) of the CAT Act, the publication of any evidence given during the private hearing and confidential material be prohibited;
3. Pursuant to s64(1)(d) of the CAT Act, the disclosure to the applicant and his legal representatives of any evidence given during the private hearing and the confidential material is prohibited;
4. Pursuant to s64(1)(b), s64(1)(c) and s64(1)(d) of the CAT Act, the transcript and recording of the private hearing is not to be published or disclosed to the applicant, the legal representatives of the applicant or the public;
5. Pursuant to s59(1) of the Administrative Decisions Review Act 1997, the respondent is not required to lodge copies of the documents referred to in the confidential affidavit.

REASONS FOR DECISION

1. This is an application by Mr Kocic (the applicant) seeking a review of the decision of the Commissioner of Police (the Commissioner or the respondent) to refuse the firearms licence in a letter dated 4 February 2022. The applicant made an application for an internal review, but it was not determined within 21 days and on 10 May 2022 the applicant filed his application for review with the NSW Civil and Administrative Tribunal (Tribunal).

Background

2. Mr Kocic has held a firearms licence since August 2001. The licence was re-issued in September 2011 the residential address and safe storage address was listed as ‘Address 1’. In September 2016 Mr Kocic re-applied for a firearms licence and listed his residential address as ‘Address 1’ and the safe storage address as ‘Address 2’.

3. In November 2012 and in January 2013, conditions were placed on the applicant’s firearms licence prohibiting him from storing or using firearms at any location where Nedzad Kocic (his brother) resided. In 2017 a further condition was placed on the applicant’s firearms licence prohibiting him from storing or using firearms at any location where Nedzad Kocic frequents.

4. On 28 September 2021 the applicant applied for a renewal of his category A, B and H firearms licence. He listed his residential address as ‘Address 1’ and under the heading ‘safe storage address’ inserted N/A.

5. The Notice of Refusal given by the Commissioner on 4 February 2022 relied on s11(4) Firearms Act 1996 (NSW) (Firearms Act) the ability to exercise continuous and responsible control over firearms because the applicant’s firearms licence listed the firearms storage address as ‘Address 1’, the same address as that of his brother, Nedzad Kocic and the ‘public interest’ ground in s11(7) of the Firearms Act.

6. Before the Tribunal, the Commissioner relied on ss 11(3) and 11(7) of the Firearms Act, the grounds of ‘fit and proper person’ and ‘public interest’.

Relevant Legislation

7. Section 63 of the  ADR Act provides that, in determining an application for review, the Tribunal is to make the correct and preferable decision, having regard to the material before it, and any applicable written or unwritten law.

8. Under s 28(2) of the  CAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter and in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act.

9. The principles and objects of the Firearms Act are set out in s 3, relevantly:

Principles and objects of this Act

(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

…

(2) The objects of the Firearms Act are as follows:

…

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) 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,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

10. Section 11(3), (4)(a) and (7) of the Firearms Act are in the following terms:

(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

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

(4) Without limiting the generality of subsection (3) (a), a 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—

(a) the applicant's way of living or domestic circumstances, or

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

11. Section 69 of the Firearms Act requires a licence holder to inform the Commissioner of any change in the licensee’s address within 7 days of the change occurring.

Evidence

Applicant’s evidence

12. Mr Kocic relied on a statement filed in these proceedings dated 27 October 2022 (Exhibit A1) as well as a statement made on 30 March 2022 (Exhibit R1 p83). Mr Kocic’s evidence was that he moved from his family home ‘Address 1’ to his new home ‘Address 2’ in about 2010 to 2011. However he did not inform the Commissioner of the change of residential address. Mr Kocic’s evidence was that ‘due to only being next door and out of convenience, I didn't change any of my mailing addresses and inadvertently forgot to change the address on my driving licence from’ ‘Address 1’ to ‘Address 2’.

13. During cross examination, Mr Kocic stated that not changing his address from ‘Address 1’ to ‘Address 2’ was an honest mistake. He also offered that he was lazy and stupid. He stated that all his mail was sent to ‘Address 1’. He stated that he did fill in a form which was provided to the Commissioner at some stage that his address was ‘Address 2’ and that the firearms storage was inspected by the police and there was full compliance.

14. Nezdad Kocic and his family, together with Mr Kocic’s parents and uncle continue to live at ‘Address 1’. In January 2022, Mr Kocic moved to address.

15. Mr Kocic stated that he fell out with his brother Nezdad Kocic a couple of years ago because of money and business and that they no longer have a brotherly connection although they see each other from time to time at family events. Mr Kocic also stated that Nezdad lives overseas five to six months a year.

16. The applicant and Nedzad are both involved in Zenith Workforce Pty Ltd (Zenith). Mr Kocic manages the business. Zenith is a recruitment agency in the construction industry, it is a successful large scale business that provides skilled labour in the areas of first aid, security and traffic control. Nedzad is the current director and secretary. Mr Kocic was the director and secretary prior to 1 July 2012. The shares of Zenith are owned by the applicant.

17. The brothers also own other companies that were set up for the purpose of property development, however they are not active. Mr Kocic’s evidence was that despite the joint business arrangements, he has very little to do with his brother.

18. Mr Kocic stated that in October 2022 he attended a firearms ownership course conducted by Firearms Safety and Training Council Ltd and has now come to understand the importance of maintaining the correct information on his firearms licence.

19. It was put to Mr Kocic during cross examination that he has a close association with his brother who has an extensive criminal history and that he has been involved with criminal elements. Mr Kocic denied that he had close or regular contact with his brother or any person who is a criminal or had been involved with any criminal elements.

20. The applicant also relied on character references from five persons including his wife and people with whom he has worked and socialised. They all attest to the applicant’s credit, honesty and good standing. None of them state that they are aware of Nedzad’s criminal record.

The respondent’s evidence

21. The Commissioner relied on documents lodged pursuant to s 58 of the ADR Act (Exhibits R1 and R2) and an affidavit of Sean Munnoch dated 30 September 2022 (Exhibit R3) which attached Australian Security and Investments Commission searches in the name of Senad Kocic, Nedzad Kocic and Zenith Workforce Pty Ltd.

22. The open hearing was followed by a confidential hearing. The material and submissions presented in the confidential hearing by the Commissioner were given on a confidential basis.

Applicant’s submissions

23. Mr Kocic submitted that he had a firearms licence for a long time without incident and that the Tribunal should accept that Mr Kocic’s evidence was given truthfully that he did not seek to mislead the Commissioner and the failure to change his home address was an honest mistake.

24. The applicant submitted that there is no evidence of Mr Kocic posing real and appreciable risk if his firearms licence was granted as he had posed no risk in the past, the respondent’s submissions are based on an inference as to his brother being involved in wrongdoing.

25. Mr Kocic’s past criminal conduct was not disputed but he had been punished for it and there were no criminal convictions in the last 10 years.

Respondent’s Submissions

26. The respondent submitted that it was inherently implausible that Mr Kocic did not change his address due to laziness for some 11 years and that Mr Kocic maintains an association with his brother Nedzad who is a ‘criminal’.

27. The respondent submitted that no weight should be given to Mr Kocic’s evidence as it was false, unreliable, implausible and deliberately evasive. The respondent submitted that the Tribunal should find that Mr Kocic is not a fit and proper person to hold a firearms licence and that it would not be in the public interest for the applicant to hold a firearms licence. The Commissioner relied on the evidence filed in the open proceedings taken together with evidence filed in the confidential hearing.

Consideration

Public Interest

28. Section 11(7) of the Firearms Act permits a refusal of a firearms licence if it is contrary to public interest. Public interest includes the applicant’s safety and that of the whole community. In considering public interest, the objects and scope of the Act are amplified; Comalco Aluminium (Bell Bay) Ltd v O’Connor and Ors [1995] IRCA 540; (1995) 131 ALR 657 at 681 per Wilcox and Keely JJ and are given paramount consideration Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

29. Consistent with s 3(1)(a) of the Firearms Act, the applicant’s individual interest in obtaining or retaining a firearms licence is subservient to the public’s right to safety.

30. In considering the question of public interest, the Tribunal takes into account the interests of public protection, public safety and the proper functioning of the legislative requirements of the firearms scheme. Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. Close association with ‘known criminals’ is a relevant consideration as it may represent a risk to public safety as the applicant may come under pressure to make guns or ammunition available to criminals or criminal organisations: Hamid v Commissioner of Police, NSW Police Force [2018] NSWCATAD 43 [60]

31. Firearms possession is a privilege and his conditional on the need to ensure public safety. Misuse of firearms can result in catastrophic consequences. Davos v Commissioner of Police [2013] NSWADT 7 at [117]; Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28.

32. I accept that Nedzad Kocic has an extensive criminal record involving firearms. There have been no criminal convictions for the last eleven years. Another member of Mr Kocic’s family has also been involved in criminal conduct as well as an employee of Zenith Works. Nedzad Kocic and the applicant are close business associates in numerous companies in that they hold positions of director and or secretary and are both shareholders. The applicant is an employee of Zenith Workforce Pty Ltd, he is also a shareholder and Nedzad is the director and secretary.

33. Since 24 May 2021, Nedzad has been the director and secretary of NK Campsie Project Pty Ltd and the applicant has been a director and secretary of SK Campsie Project Pty Ltd.

34. While the Tribunal may accept that the applicant may attend the same family events as his brother and the association is not close, is fleeting and does not lead to oral interaction, the applicant is clearly engaged with his brother in business dealings, these business dealings are ongoing, involved and substantial.

35. The business records attached to Mr Munnoch’s affidavit demonstrate that the applicant has a long term and continuing business association with his brother. This is supported by the applicant’s own evidence that Nezdad does attend business meetings from time to time at which he is present.

36. However, when the Commissioner decided to place the conditions on the applicant’s firearms licence in May 2017 that the applicant not store or use firearms at any location where Nedzad resides or frequents, he understood that the applicant resided at the same physical location as his brother and that the brothers were involved in joint business ventures. Zenith Workforce Pty Ltd was operational in July 2012. There was no submission why the Tribunal would make a different decision to the Commissioner based on the same evidence.

37. On the open evidence I do not consider that there is sufficient evidence to conclude that because of the applicant’s association with Nedzad, a firearms licence should not be issued as it would be contrary to the public interest. However I come to a positive view based on the confidential material. The Tribunal finds that the applicant should not be granted a firearms licence based on public interest as to do so may represent a risk to public safety.

Fit and Proper Person

38. As Toohey and Gaudron JJ explained in the context of a commercial broadcasting licence in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 [36]:

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.

39. In Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at 156-7 [9] the content of fitness and propriety was considered to have three components –‘honesty, knowledge and ability’. In Austin v Commissioner of Fair Trading [2016] NSWCATAP 179 the Appeal Panel said at [58] that the expression ‘fit and proper’ includes a person’s possession of ‘sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work the subject of the licence.’

40. The Commissioner’s contention that the applicant’s inadvertent failure to change his address on its own would not in my opinion be sufficient to support a conclusion that Mr Kocic is not a fit and proper person to hold a firearms licence. I also note that since the issue was identified Mr Kocic has attended a training course and has updated his knowledge of his obligations and responsibilities as a firearms licence holder. However based on confidential material the Tribunal finds that the applicant is not a fit and proper person and should not be granted a firearms licence.

Conclusion

41. Based on the confidential material the Tribunal finds that the applicant is not a fit and proper person to hold a firearms licence and that the applicant should not be granted a firearms licence based on public interest.

42. The correct and preferable decision is to affirm the decision of the Commissioner to refuse Mr Kocic’s application for a firearms licence.

Orders

1. The respondent’s decision is affirmed.

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

Registrar

Decision last updated: 08 February 2023