Nguyen v Commissioner of Police, New South Wales Police Force

[2018] NSWCATAD 242

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Nguyen v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 242
Hearing dates:	8 October 2018
Date of orders:	17 October 2018
Decision date:	17 October 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D A C Robertson, Senior Member
Decision:	(1)   The application is dismissed as the Tribunal has no jurisdiction to determine the matter.
Catchwords:	ADMINISTRATIVE LAW – Firearms Act 1996 (NSW) – firearms prohibition order – applicant convicted under s 572C Crimes Act of offence involving goods in custody – whether applicant disqualified pursuant to s 75(1A) of the Firearms Act from seeking review of the respondent’s decision to serve a firearms prohibition order– whether an offence under s 527C of the Crimes Act is an “offence involving dishonesty” WORDS AND PHRASES - “an offence involving fraud, dishonesty or stealing”
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Crimes Act 1900 (NSW) Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW) Property Stock and Business Agents Act 2002 (NSW) Security Industry Regulation 1998 (NSW)
Cases Cited:	Barber v Law Society of New South Wales (No 2) [2001] NSWSC 361 C v Johnson [1967] SASR 279 Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23 Joyce v Commissioner of Police, New South Wales Police Service [2000] NSWADT 17 Joyce v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 17 Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 Song v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 218 Tafengatoto v Commissioner of Police, New South Wales Police Service [2001] NSWADT 40
Category:	Principal judgment
Parties:	Barry Mackie Nguyen (Applicant) Commissioner of Police, New South Wales Police Force (Respondent)
Representation:	Counsel: P Kondich (Applicant) H El Hage (Respondent)   Solicitors: Criminal Law Group (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2018/00208217
Publication restriction:	Nil

REASONS FOR DECISION

Introduction

1. 1 On 8 June 2018 the applicant, Mr Nguyen, was served with a firearms prohibition order dated 6 June 2018 issued by a delegate of the respondent Commissioner pursuant to s 73 of the Firearms Act 1996 (NSW).

2. The decision to issue the firearms prohibition order was referred for internal review under s 53 of the Administrative Decisions Review Act 1997 (NSW). On 27 August 2018, the internal reviewer upheld the decision.

3. The applicant filed an application in the Tribunal seeking administrative review of the decision to issue the prohibition order.

4. The respondent Commissioner raised the preliminary objection that the applicant was disqualified by virtue of the provisions of the Firearms Act and regulations from applying to the Tribunal for a review of the decision to issue the firearms prohibition order.

5. The matter was listed before me for determination of that jurisdictional question.

6. At the hearing the parties agreed that, if I determined that the Tribunal did have jurisdiction, the matter should be listed on a subsequent occasion for the hearing of the substantive application.

7. For the reasons which follow I have concluded that the applicant is precluded from making an application for review and that, accordingly, the Tribunal does not have jurisdiction to determine the application which must be dismissed.

Legislative provisions

8. It is convenient to set out the relevant provisions of the Firearms Act.

9. The principles and objects of the Act are set out in section 3 which provides:

3 Principles and objects of 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

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

(2)   The objects of this Act are as follows:

(a)   to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(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,

(f)   to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

10. Section 73 of the Firearms Act relevantly provides:

73   Firearms prohibition orders

(1)   The Commissioner may make a firearms prohibition order against a person if, in the opinion of the Commissioner, the person is not fit, in the public interest, to have possession of a firearm.

11. Pursuant to section 75(1)(f) of the Firearms Act, a person may apply to the Tribunal for administrative review of a decision to make a firearms prohibition order against them. However section 75(1A) provides:

(1A) Despite subsection (1), a person may not apply for a review of a firearms prohibition order made against the person if the person would be required under section 11 (5) or 29 (3) to be refused a licence or permit (a disqualified person) had the person not been subject to a firearms prohibition order.

12. Section 11 of the Firearms Act empowers the Commissioner to grant a firearms licence. Relevantly sections 11(5)(b) and (d) provide:

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

…

(b)   has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

…

(d)   is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations, or

13. Section 29(3)(b) and (d) of the Firearms Act prescribe identical restrictions with respect to the grant of permits.

14. Clause 5 of the Firearms Regulation 2017 (NSW) relevantly provides as follows:

5   Offences that disqualify applicants

(1) For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed:

…

(f)     Offences involving fraud, dishonesty or stealing

An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the penalty imposed included a term of imprisonment (whether or not suspended) for 3 months or more, a community service order for 100 hours or more of community service work, or a good behaviour bond.

…

(2)   Persons subject to good behaviour bonds

For the purposes of sections 11 (5) (d) and 29 (3) (d) of the Act, the following offences are prescribed:

…

(d)   an offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing.

The Issue for Determination

15. It is not in dispute that Mr Nguyen was convicted in 2015 of an offence pursuant to section 316(1) of the Crimes Act 1900 (NSW) (“the 2015 offence”) of concealing a serious indictable offence, for which he received a good behaviour bond.

16. It is also not in dispute that in 2017 Mr Nguyen was convicted pursuant to section 527C of the Crimes Act of possessing goods suspected of being stolen or otherwise unlawfully obtained. For that offence (“the 2017 Offence”) Mr Nguyen was also given a good behaviour bond.

17. It was common ground between the parties that, if either the 2015 offence or the 2017 offence was an “offence involving fraud, dishonesty or stealing”, then Mr Nguyen was a “disqualified person” for the purposes of section 75(1A) of the Firearms Act and the Tribunal has no jurisdiction to determine Mr Nguyen’s application for review of the decision to issue the firearms prohibition order.

Consideration

18. The meaning of the term “offence involving dishonesty” in section 16 of the Property Stock and Business Agents Act 2002 (NSW) was considered by an Appeal Panel of this Tribunal in Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23. In that decision at [26]-[28] the Appeal Panel discussed the meaning of “dishonest” in the following terms:

Meaning of "dishonest"

26   The Macquarie Dictionary online defines 'dishonesty' as:

noun (plural dishonesties)

1. lack of honesty; a disposition to lie, cheat, or steal.

2. a dishonest act as a fraud or theft.

27   The word "dishonest" has been interpreted by the High Court in the context of an exclusion clause in an insurance policy: McCann v Switzerland Insurance Australia Ltd [2000] HCA 65. The clause excluded any liability "brought about by the dishonest or fraudulent act or omission of the assured." Gaudron J distinguished between an act and an omission at [55] and [56] that:

Dishonesty is an ordinary concept, not a term of art. It is, on that account, difficult to define in any comprehensive manner. However, dishonesty is a matter to be determined by reference to the mental state of the person whose conduct is in issue. It was pointed out in Peters v The Queen that "in most cases where honesty is in issue, the real question is whether an act was done with knowledge or belief of some specific thing or with some specific intent".

Leaving aside the situation in which there is an honest claim of right, the question whether a failure to act is dishonest is usually answered by considering whether that failure was motivated by a desire to conceal the truth or to obtain an advantage to which the person concerned knew he or she was not entitled. (Footnotes deleted)

28   Kirby P made the point out at [89], that dishonesty in the context of a criminal prosecution raises different questions from dishonesty in a contract of professional indemnity insurance. But in relation to the term "an offence involving dishonesty," we are of the view that the ordinary meaning, as outlined by Gaudron J, is the starting point. Whether it has a broader meaning depends on the meaning attributed to the word "involving".

19. The Appeal Panel in Farah referred to the decision of Abadee J in Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 in which his Honour held that the offence of making a statement which was false in a material particular with reckless disregard as to whether it was true or false in a material particular with the intent to obtain certain moneys for a company, was an offence involving dishonesty, notwithstanding that the words “fraudulently” or “dishonestly” are not included in the offence and the offence required proof of recklessness rather than intent.

20. The Appeal Panel in Farah referred to a dictum of Abadee J in Pollard addressing the question whether, if fraud or dishonesty was involved in the commission of the offence, it would be an offence involving dishonesty. His Honour suggested that, although it was not necessary to determine the question, he “would be disposed to the view that if conduct or behaviour answering the description of fraud or dishonesty was involved in the offence then it would be an offence involving fraud or dishonesty”.

21. The Appeal Panel in Farah did not follow the dictum of Abadee J in Pollard, preferring the conclusion reached by Bell J in Barber v Law Society of New South Wales (No 2) [2001] NSWSC 361 at [32] that, for an offence to be an offence involving dishonesty, the offence “must be one that answers that description without further enquiry”. This was also the conclusion reached by Bray CJ in C v Johnson [1967] SASR 279 at 291.

22. The Appeal Panel’s conclusion in Farah was set out in paragraph [42] as follows:

42   Our conclusion is that it is the offence itself that must 'involve dishonesty.' It is not permissible to look behind the conviction for that offence to consider the particular facts of the case. The agreed facts on which a guilty plea is based, the findings of the court in relation to a contested hearing and the sentencing remarks are not relevant. Those matters cannot be relied on to find that the person has engaged in dishonest conduct or behaviour or had a particular state of mind which was dishonest. In the words of Bell J, the offence must be one which involves dishonesty "without further inquiry".

The 2017 offence

23. The elements of an offence under s 572C are set out in that section which provides:

527C   Persons unlawfully in possession of property

(1)   Any person who:

(a)   has any thing in his or her custody,

(b)   has any thing in the custody of another person,

(c)   has any thing in or on premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another, or

(d)   gives custody of any thing to a person who is not lawfully entitled to possession of the thing,

which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before the Local Court:

(a)   if the thing is a motor vehicle or a motor vehicle part, or a vessel or a vessel part, to imprisonment for 1 year, or to a fine of 10 penalty units, or both, or

(b)   in the case of any other thing, to imprisonment for 6 months, or to a fine of 5 penalty units, or both.

(1A)   A prosecution for an offence under subsection (1) involving the giving of custody of a motor vehicle to a person who is not lawfully entitled to possession of the motor vehicle may be commenced at any time within 2 years after the date of commission of the offence.

(2)   It is a sufficient defence to a prosecution for an offence under subsection (1) if the defendant satisfies the court that he or she had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained.

24. Mr El Hage for the Commissioner referred me to the decision of Deputy President Hennessy in Joyce v Commissioner of Police, New South Wales Police Service [2000] NSWADT 17, where the Deputy President determined that an offence under section 527C of the Crimes Act was an offence involving dishonesty for the purposes of the Security Industry Regulation 1998 (NSW). Clause 11(d) of that regulation was in similar terms to regulation 5(1)(f) of the Firearms Regulation.

25. That decision was upheld on appeal (Joyce v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 17). At [24] the Appeal Panel stated: “the focus of the offence is on the candour, honesty and plausibility of the defendant’s explanation” (that is for having the relevant possession of the relevant goods).

26. As Mr El Hage pointed out, the decision in Joyce has been followed in Song v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 218 in relation to section 16 of the Property Stock and Business Agents Act and in Tafengatoto v Commissioner of Police, New South Wales Police Service [2001] NSWADT 40 in relation to clause 11(d) of the Security Industry Regulation 1998.

27. Deputy President Hennessy stated in Joyce:

14 Are fraud, dishonesty or stealing "involved" in s 527C? In R v Alexander William Madden No 60547 of 1994 [4] and [5] the Supreme Court stated that:

The issue which the prosecution must establish under s 527C is not whether the arresting police officer or the court reasonably suspects that the thing was unlawfully obtained; rather, it is whether such a description may objectively relate to the thing itself - that it is something which might reasonably be suspected of having been unlawfully obtained. . . . It is unnecessary to prove that the person charged entertained, or may have entertained, such a suspicion. This is an issue which may be raised in relation to the defence afforded by s 527C(2). . .

The effect of this statutory framework is thus that the state of knowledge of the person charged as to the provenance of the particular things found in his custody is irrelevant to the prosecution case; but, if the court is satisfied beyond reasonable doubt upon the state of the evidence before it that those things may be reasonably suspected of being stolen or otherwise unlawfully obtained, the person charged must, in order to escape conviction, discharge the lesser civil onus upon him of satisfying the court that he had no reasonable grounds for suspecting that they were stolen or unlawfully obtained.

15   The Crown does not need to prove that the person charged stole or otherwise unlawfully obtained the "thing" - generally goods. All that is required is that the person has the goods in his or her custody and that the goods themselves, from an objective point of view, may be reasonably suspected of being stolen or otherwise unlawfully obtained.

16   A person charged under 527C can rely on the defence that he or she had no reasonable grounds for suspecting that the goods were stolen or otherwise unlawfully obtained. That suspicion must relate to the goods themselves.

17 This analysis makes it clear that fraud, dishonesty or stealing are not legal requirements or elements of an offence under s 527C. Are they nevertheless "involved" in the offence? In my view stealing is not "involved" in s 527C because the stealing does not relate to the person charged. Even if a person does have reasonable grounds for suspecting that goods in his or her custody were stolen, that person is not necessarily implicated in the stealing of them. Just because an offence contains the word "stealing" does not necessarily mean that it is an offence involving stealing. It cannot have been parliament's intention to deny a security licence to a person convicted of an offence "involving stealing" unless the stealing relates to that person.

18   My conclusions are different in relation to whether the offence involves "dishonesty." "Dishonesty" is defined in the Concise Oxford Dictionary (7th edition, Oxford at the Clarendon Press 1982) as "lack of honesty; deceitfulness, fraud." A person would be acting dishonestly or deceitfully where that person fails to disclose to police that goods have come into his or her custody in circumstances where that person has reasonable grounds for suspecting that the goods have been stolen or otherwise unlawfully obtained. The ordinary meaning of dishonesty does not require that the person engage in some positive act. It can include a situation where a person fails to act.

19   It does not make any difference to this conclusion whether the goods in the person's custody have been stolen or obtained by some other unlawful means. The person has still acted dishonestly or deceitfully by failing to take any action which would bring the situation to the attention of police. …

28. The decisions in Joyce, both at first instance and of the Appeal Panel, are explicit authority that an offence under section 527C of the Crimes Act is an offence involving dishonesty.

29. Mr Kondich, who appeared for Mr Nguyen, submitted that I should look to the circumstances behind the relevant offence. As stated in the COPS Event Report relating to the 2017 offence, which was included in the bundle of documents tendered by the respondent, Mr Nguyen was convicted in respect of the possession of an amount of $4,840.00 in cash located within a hole in the wall in Mr Nguyen’s bedroom.

30. It was not clear to me from Mr Kondich’s submissions how it could be said that the concealment of moneys (which Mr Nguyen could not establish that he had no reasonable grounds for suspecting were stolen or otherwise unlawfully obtained) in a wall cavity did not involve dishonesty. Nevertheless, I do not consider it necessary to consider this issue further. I must determine the question whether an offence “involves dishonesty” by reference to the elements of the offence without further enquiry. In that respect I am bound to follow the Appeal Panel’s decision in Farah which, although it relates to a different statutory provision, is, in my view, not distinguishable. In my view the decision in Farah is correct and consistent with other authority binding upon the Tribunal.

28. Although the decisions in Joyce pre-dated the decision in Farah, as Mr El Hage submitted the decision in Joyce was reached upon the same basis as the decision in Farah. In paragraph [22] of the decision at first instance in Joyce, the Deputy President held:

22 … the Tribunal cannot go behind the offence. In particular, the Tribunal cannot make a determination about whether the applicant was in fact guilty of the offence or whether the facts of the particular case involved fraud, dishonesty or stealing. As long as the applicant has been convicted of the offence and that offence fits within the description of a prescribed offence under the Regulation, the administrator must refuse to grant a security licence to that person. For this reason I have not referred to the evidence given by Mr Joyce about the particular circumstances of the offence.

32. I consider that the decisions in Joyce are correct and should be followed. Accordingly, I find that by reason of Mr Nguyen’s conviction of an offence pursuant to section 527C of the Crimes Act, he is a disqualified person for the purposes of section 75(1A) of the Firearms Act and the Tribunal has no jurisdiction to review the Commissioner’s decision to issue a firearms prohibition order to Mr Nguyen.

33. Having determined that Mr Nguyen’s offence under section 572C was an offence involving dishonesty, it is not necessary that I consider whether the offence under section 316 of the Crimes Act was also an offence involving dishonesty and I refrain from doing so.

34. My orders will be:

1. The application is dismissed as the Tribunal has no jurisdiction to determine the matter.

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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: 17 October 2018