Nohra v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 15

CITATION:	Nohra v Commissioner of Police, New South Wales Police Service [2001] NSWADT 15
DIVISION:	General Division
PARTIES:	APPLICANT Tony Anthony Nohra RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003316
HEARING DATES:	24/01/01
SUBMISSIONS CLOSED:	02/01/2001
DATE OF DECISION:	02/07/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996
CASES CITED:
REPRESENTATION:	APPLICANT T Morgan, solicitor RESPONDENT J Tunks
ORDERS:	1. Decision of Commissioner to refuse Mr Nohra’s application for Category A and B firearms licences is affirmed

1 This is an application by Mr Nohra for a review of a decision by the Commissioner of Police to refuse his Category A and B firearms licences. Those licences would allow Mr Nohra to participate in Target Shooting, Clay Target and Recreational hunting/vermin control. Section 12 of the Firearms Act 1996 (the Act) prevents the Commissioner from issuing a licence unless he is satisfied that an applicant has a genuine reason for possessing or using the firearm. The Commissioner initially refused the application on that basis. According to the Commissioner, the applicant had not demonstrated that he was a member of an approved club which conducts competitions or activities requiring the use of a firearm. However, on receipt of a letter from the Sporting Shooters Association dated 13 March 2000, the Commissioner reconsidered his decision and was prepared to issue the licence. Before he did so, it came to his attention that Mr Nohra had been convicted of certain criminal offences. On the basis of those offences the Commissioner refused to issue the licences because he was not satisfied that Mr Nohra was a fit and proper person to have possession of a firearm. In addition, the Commissioner considered that issuing the licence would be contrary to the public interest.

2 On 27 September 2000 Mr Nohra applied to the Tribunal for a review of the Commissioner’s decision. The day before the hearing, Mr Nohra’s solicitor telephoned the Tribunal and advised that they were not longer acting for Mr Nohra but that he knows the date of the hearing. Mr Nohra did not come to the hearing. Registry staff were unable to contact him by phone. I decided to hear the evidence and submissions of the Commissioner in the absence of Mr Nohra. At the conclusion of those matters, the proceedings were stood over, part heard. On my instructions, the Tribunal Registry then wrote to Mr Nohra advising that he should forward to the Tribunal by 12 February 2001, any documents or statements he wanted the Tribunal to consider. The Tribunal would then determine the matter on the basis of the Commissioner’s oral and written submissions as well as on the papers under s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act) should Mr Nohra respond. The letter from the Tribunal was returned with a notation that Mr Nohra was “unknown at address”. Consequently this matter is being determined on the basis of the information on the file and the Commissioner’s oral submissions.

3 The two grounds on which the Commissioner relied in refusing Mr Nohra a Class AB Firearms licence were that he was not a fit and proper person to hold a licence and it was not in the public interest for him to do so. These grounds can be found in s 11(3)(a) and 11(7) of the Act:
(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, . . .
(7) The Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

Evidence

4 In 1990 Mr Nohra was convicted of the following offences at Parramatta Local Court:
• 6/12/1990: assault police (fined $250); and
• 6/12/1990: resist arrest (fined $250).
5 According to the fact sheets and statements tendered at the hearing, the circumstances of the offences were that police approached a group of seven males and asked them what was in their pockets. Mr Nohra allegedly said “Where’s your warrant?” In her statement about the incident Senior Constable Croatto said:
I then went to search the defendant whereupon he again said, ‘Where’s your warrant?’ As he said this he struck out with his right arm, striking me across the shoulders, pushing me away.
I then took hold of the defendant by the shirt whereupon he commenced to struggle, thrashing his arms about and pulling away. I then said ‘you are under arrest for assault police.’: the defendant continued to struggle and pull away from me, swinging his arms about as he did so.

6 This version of events is corroborated by statements from Constable Peter Smithers dated 8 December 1990, and Constable Ian Frater dated 26 March 1991, who were also present when the incident occurred.

7 In 1991, Mr Nohra was convicted of the following offences by the District Court:

• enter land with intent to commit a felony or misdemeanour (recognisance under s 558 in sum of $1000 without surety, supervision by Community Correction Service and fined $500);
• enter land with intent to commit a felony or misdemeanour (500 hours Community Services Order)
8 According to the fact sheet prepared by Detective Sergeant Terrance Griffiths dated 26 November 1991, Mr Nohra was in the company of four other men when they went to the home of two people. One of the men produced a firearm and threatened the victims.

9 It was not alleged that Mr Nohra either provided the firearm or threatened the victims. One of the men had allegedly planned the incident in revenge because some marijuana plants had been stolen from his premises. Three days later, on 25 November 1991, the same five men went to other premises where they were confronted by police. They tried to run away but were caught. Mr Nohra was taken to the police station and interviewed. He admitted his involvement and knowledge of the offence.

10 In relation to the decision to refuse his application for a firearms licence, Mr Nohra wrote in his application to the Tribunal, that:
The decision is based upon results of court findings without any indication of the minor degree of my involvement or on circumstances in mitigation, and it is felt that a full explanation of the surrounding circumstances will indicate that the appellant is in fact a fit and proper person to hold a firearms licence.

Respondent’s submissions

11 Mr Capper on behalf of the Commissioner, submitted that while the convictions were close to 10 years old, they are serious enough to raise concerns about Mr Nohra’s fitness to hold a licence and the risk to public safety.

Reasons and decision

12 In determining whether Mr Nohra is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his convictions (not merely to the conviction itself) and the activities for which Mr Nohra’s fitness and propriety are being assessed, namely target shooting, and recreational hunting/vermin control.

13 The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Nohra would not pose a risk to public safety if he had access to firearms. Mr Nohra did not provide any oral or written evidence in relation to his version of the events which gave rise to the criminal convictions, or his character today.

14 The circumstances of the offences of assault police and resist arrest, for which Mr Nohra was convicted over 10 years ago, do not constitute a sufficient justification for refusing a firearms licence today. Although assaulting police is a serious matter, these offences were relatively minor (the penalty was a fine of $250.00) and they did not involve firearms.

15 The second group of offences is of greater concern. I am satisfied on the evidence, that Mr Nohra was in the company of four other men when they went to the home of two people. One of the men produced a firearm and threatened the victims. While it was not alleged that Mr Nohra either provided the firearm or threatened the victims, his presence when the incident led to a significant fine and a length community services order being imposed. Despite the fact that Mr Nohra admitted to the offence and his involvement and that the offence occurred more than 9 years ago, the circumstances of this offence raise serious questions about whether Mr Nohra himself can be trusted to use firearms safely.

16 One of the objects of the Act, as set out in s 3, is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." In this case, Mr Nohra cannot be afforded that privilege unless there is sufficient evidence to satisfy the Tribunal that, despite the circumstances of the offence, he does not pose a risk to public safety.

17 In the absence of any such evidence, I am satisfied that the Commissioner made the correct decision in refusing his application for firearms licences on the ground that he is not a fit and proper person and cannot be trusted to have possession of firearms without danger to public safety or to the peace.

18 The second submission on which the Commissioner relied was that a licence may be refused if the Commissioner considers that it is not in the public interest for the person to hold it. Having come to the view that the Commissioner made the correct and preferable decision to refuse Mr Nohra's licence it is not necessary for me to determine whether the decision was also justified on other grounds.