Saad v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 334

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Saad v Commissioner of Police, NSW Police Force [2023] NSWCATAD 334

Hearing dates:

18 May 2023, 1 June 2023

Date of orders:

22 December 2023

Decision date:

22 December 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

The respondent’s decision to revoke the Applicant’s firearms licence is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW - firearms – revocation of licence – domestic violence - traffic infringements – traffic offences – character – fit and proper person - public interest

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Sentencing & Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986

Firearms Act 1996

Firearms Regulation 2017

Road Rules 2008 (NSW)

Road Transport Act 2013 (NSW)

Road Transport (Driver Licensing) Act 1998 (NSW)

the Administrative Decisions Review Act 1997

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5

Aubrey v Commissioner of Police [2005] NSWADT 266

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

Bazouni commissioner of Police, New South Wales Police Service [2002] NSWADT 100

CIC Insurance Limited v Bankstown Football Club (1997) 187 CLR 384

Comalco Aluminium (Bell Bay) Ltd v O’Connor and Others (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cusumano v Commissioner of Police [2001] NSWADT 50

Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7

Director of Public Prosecutions v Smith (1991) 1 VR 63

Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60

Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60

Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70

Ford v Commissioner of Police [2022] NSWCATAD 87

Himo v Commissioner of Police [2021] NSWCATAD 321

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89

Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31

Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145

Loye v Director General, Department of Transport [2000] NSWADT 145

Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276

Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206

O’Brien v Commissioner of Police [2022] NSWCATAD 259

Pemberton v Commissioner of Police, NSW Police Force [2022] NSWCATAD 288

Petas v Commissioner of Police, NSW Police [2013] NSWADT 137

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Sawires v Commissioner of Police [2010] NSWADT 4

Tannous v Commissioner of Police [2011] NSWADT 116

Vella v Commissioner of Police [2003] NSWADT 91

Ward v Commissioner of Police [2000] NSWADT 28

Texts Cited:

None

Category:

Principal judgment

Parties:

Bishoy Saad (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Applicant (self-represented)
McCullough Robertson (Respondent)

File Number(s):

2023/00011580

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 Applicant’s ex-wife’s name prohibited from publication.
Paragraph 33 not for publication pursuant to ss 289M and 289P of the Criminal Procedure Act 1986 and s 64(1)(c) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

1. Bishoy Saad (the Applicant), also known as Chris Saad, was first issued a Category AB firearms licence under the Firearms Act 1996 (the Act) in 2007. In 2016 he was additionally issued with a Category H firearms licence. On 18 October 2017 he was issued with a Category ABH firearms licence, to expire on 18 October 2022. That licence was suspended on 6 July 2021 following an incident of domestic violence, and revoked by a delegate of the Commissioner of Police, NSW Police Force (the Respondent) on 16 June 2022.

2. The Applicant sought internal review of the decision to revoke his firearms licence on 5 July 2022. The Respondent did not issue an internal review decision within 21 days, with the result that the internal review was taken to be finalised on or about 26 July 2022 pursuant to s 53(9)(b) of the Administrative Decisions Review Act 1997 (the ADR Act). No request for external review was made by the Applicant. Nevertheless, and despite the fact that the licence would have expired on 18 October 2022 without the revocation, on 16 December 2022 the Respondent issued an internal review decision, affirming its decision to revoke the Applicant’s Category ABH firearms licence. The Respondent relied on s 24(2)(d) of the Act and Clause 20 of the Firearms Regulation 2017 (the Regulation), finding that as a result of a history of domestic violence incidents and extensive traffic violations, it was not in the public interest for the Applicant to continue to hold a licence. The internal review decision noted:

In my view, your inability to adhere to regulatory schemes aimed at ensuring public safety, and your continued lack of regard for the traffic laws and regulations, raises real and concerning issues with you being licences to use a lethal weapon, that is also governed by laws and regulations for the safety of the public.

With all the above taken into consideration, I will note your licence has now expired and there is no ability to reinstate an expired licence.

Therefore having considered the history of your behaviour, I believe that no discretion exists for the granting of a licence in your situation and accordingly the decision made is the only possible decision in the circumstances.

3. On 12 January 2023 the Applicant filed an application for administrative review in the Tribunal. The matter proceeded to hearing on 18 May 2023, at which the Applicant relied on his application for internal review to the Respondent, and a number of documents filed with the Tribunal on 27 April 2023, including:

1. consent orders made by the Federal Circuit and Family Court of Australia (Division 2) between the Applicant and his ex-wife on 18 October 2021,

2. 3 letters addressed to the presiding magistrate at Campbelltown Local Court in relation to domestic violence offences for which the Applicant was charged,

3. a letter from the Applicant’s father dated 9 April 2023 addressing the Applicant’s fitness and propriety in relation to the Applicant’s firearms licence,

4. a document titled ‘Submissions’,

5. an unsigned statement by the Applicant,

6. copies of a number of awards issued to the Applicant including a Cook Community Award in 2015 and high school sporting and merit certificates, and

7. an email from the Applicant’s accountant dated 12 September 2019 identifying his donations to the church of $79,000 between 2012 and 2016.

4. The Respondent relied on a bundle of documents filed pursuant to s 58 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) which contained records of the Applicant’s firearms licencing history, criminal history, traffic record report, and COPS records, Facts Sheets and CANS relevant to the Applicant’s interactions with police from 1998 to 2021. The respondent also relied on a Statement of Constable Benjamin Lambourne dated 20 April 2023, which addressed the Applicant’s domestic violence charges and their withdrawal following the failure of the Applicant’ ex-wife to attend court, and the Constable’s experience with the dismissal or withdrawal of domestic violence charges as a result of the victim not attending court to give evidence.

5. The Applicant and Constable Lambourne were cross examined at the hearing, and both parties provided the Tribunal with detailed oral and written submissions.

6. For the reasons that follow, I affirm the Respondent’s decision to revoke the Applicant’s firearms licence.

Legal principles

7. The Tribunal has jurisdiction to review the Respondent’s decision pursuant to section 75(1)(c) of the Act and section 30 of the CAT Act.

8. Subsection 63(1) of the ADR Act provides that in determining the application, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it. The Tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal: see Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.

9. The underlying principles of the Act are, relevantly:

1. to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and

2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.

10. Section 24 of the Act provides for the revocation of licences in a range of circumstances, including:

(2) A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

(b) if the licensee:

(i) supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d) for any other reason prescribed by the regulations.

11. Clause 20 of the Regulation prescribes that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

12. Section 24(2)(d) of the Act and Clause 20 of the Regulation work together to provide authority for the revocation of a licence where the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

13. Section 24(2)(a) of the Act provides that a licence may be revoked “for any reason for which the licensee would be required to be refused a licence of the same kind”. Section 11 of the Firearms Act relevantly 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

…

(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.

14. The expression “public interest” is not defined in the Act. It is well established that, in considering the meaning of that term, the Tribunal will have regard to the context in which it appears in the first instance: CIC Insurance Limited v Bankstown Football Club (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 (McHugh, Gummow, Kirby and Hayne JJ). A discussion of relevant case law with respect to public interest was set out by the Tribunal in the case of Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at paragraph [69]-[74]. The concept of "public interest" was discussed by the Administrative Decisions Tribunal (NSW) (the ADT) in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 (Toleafoa) as follows:

The "public interest" is an inherently broad concept giving an appellant [the Respondent] 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 in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operated 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.

15. The circumstances in Toleafoa related to the revocation of a security licence and in Ward v Commissioner of Police [2000] NSWADT 28 (Ward), the ADT confirmed that these comments apply equally to the Act.

16. In Cusumano v Commissioner of Police [2001] NSWADT 50, the ADT stated:

There is no guidance in the legislation in relation to how these directions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.

17. In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act, namely, to confirm firearm possession and use as a privilege conditional upon the overriding need to ensure public safety.

18. More generally, the public interest encompasses broader considerations beyond public safety. It is an inherently broad concept and is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O’Connor and Others (1995) 131 ALR 657, it was stated at 681:

The purpose of the reference to 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 Commissioner’s consideration. The effect of the reference is to amplify the “scope and purpose” of the legislation.

19. In Director of Public Prosecutions v Smith (1991) 1 VR 63 the Court observed:

The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to before the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.

20. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel stated:

The “public interest” allows, we consider, for 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.

21. In an often-quoted passage, Hennessy DP in Ward at [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the “fit and proper person” test, but the formulation has been held to apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130].

22. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, noting in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that:

“The ‘virtually no risk’ comment was made in the context of the ‘fit and proper person’ test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests”.

23. Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66].

24. In Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Senior Member Higgins dealt with an application in relation to firearms licensing under the Act. At paragraph [22] she stated that the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety.

“22 In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace.”

25. The principal issue in determining public safety is therefore whether or not there is a risk to the safety of the public if the Applicant retains the relevant licence: Vella v Commissioner of Police [2003] NSWADT 91.

26. In determining whether an individual holding a licence is contrary to the public interest, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in the individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed. The fact that charges have not been established to the criminal standard against an applicant is irrelevant: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] to [64]. it is well established that it is an applicant's conduct, not their conviction that is of concern to the Tribunal: Bazouni commissioner of Police, New South Wales Police Service [2002] NSWADT 100; Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70 at [301].

27. In Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, Senior Member Scahill noted at [76] that “the Applicant’s traffic history shows a disregard for public safety and his own safety as he repeated traffic offences”. The Senior Member determined at [81] that:

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.

28. Where there has been or is the possibility of a threat to public safety, the public’s right to safety must outweigh an individual’s privilege to possess and use a firearm: Aubrey v Commissioner of Police [2005] NSWADT 266 at [21]. The licensing regime is also concerned with “making decisions that are consistent with a need to reduce any risks to a minimum”: Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36].

28. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 at [117].

The evidence

Respondent’s evidence of domestic violence

30. The Respondent’s records include domestic violence incidents involving the Applicant and his parents dating back to 1998, including 2 incidents in 1998, 2 incidents in 2000 and 3 incidents in 2001 involving verbal arguments between the Applicant and his mother. In 2000 the Police records noted “Police have attended previously and appears that mother has some unrealistic expectations for kids…” and in 2001 noted “the victim wanted police to speak to her son to frighten him… the basis of the problems between her and her son appear to be cultural/generational issues”. The Applicant was a minor at this time and there were no charges laid against him. However, as a result of one incident in 2001, a telephone interim order was issued by Sutherland Police Station for the protection of the Applicant’s father, for 3 days’ duration. The COPS event report stated:

The POI’s became even more aggressive and threatened the life of his father and mother. He stated that he would rip his mother apart and if his father did anything about it he would do the same to him and wreck the entire house. The victims called police as they had fears for their safety.

31. There was just one other report to police by the Applicant’s father of a verbal argument in 2007.

32. Then, on 5 July 2021, the Applicant’s wife attended Campbelltown Police Station and provided a DVEC Statement, reporting incidents of domestic violence by the Applicant on 4 June 2021 and 29 June 2021. Photographs of a scar alleged to be left by the injury caused by the domestic violence on 4 June 2021 were taken by police.

33. [not for publication pursuant to s64(1)(c) of the CAT Act]

34. Police subsequently attended the Applicant’s residence, arrested the Applicant, seized the Applicant’s firearms and conveyed the Applicant to Campbelltown Police Station. There, the Applicant participated in a recorded interview during which he admitted to grabbing his wife and causing the injuries to her elbow but “it was not an intent to assault her”. He said:

The injury to her arm actually that happened, I caused that, that wasn’t exactly the details I was trying to get her off the lounge to talk to her and then she fell and that’s why she got the cut, I wasn’t trying to assault her, I was the one who actually got the cream for her arm, so yes she’s not wring about that I didn’t mean to assault her I was just trying to get her off the lounge, we were in the heat of the argument.

35. The Applicant was charged with 2 domestic violence offences:

1. “stalk or intimidate intending to cause fear of physical or mental harm (domestic violence offence)” contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); and

2. “assault occasioning actual bodily harm domestic violence related” contrary to section 59(1) of the Crimes Act 1900 (NSW).

36. The Applicant was also issued with a provisional Apprehended Domestic Violence Order (PADVO) on 5 July 2021 and the Applicant’s firearms licence was suspended on 6 July 2021.

37. The Facts Sheet for the criminal offences stated:

In the morning of Friday the 4^th of June 2021, the victim was sitting on the lounge in the sun room in the front of their residence… the accused has entered the sun room and initiated a verbal argument regarding the accused’s purchase of another property and wanting the victim and their five children to move out, while the accused continues to reside at the current address.

Shortly after the verbal argument was initiated, the accused has grabbed the victim by her arms, and proceeded to drag her off the lounge onto the carpet of the sun room over a distance of a couple of metres causing a small graze (to her left elbow as a result of a carpet burn to the size of a 20 cent coin.

Around 11.00am on Tuesday the 29^th of June 2021, a verbal argument between the accused and the victim occurred in the dining room of their residence regarding the same ongoing issues about the purchase of the property and the accused wanting the victim and the children to move out and into the new house. During this argument the accused stated to the victim “I’d rather kill you and go to jail for seven years, than to have you go to the police and if you go to the police you are my enemy”. This threat caused the victim to fear for her safety.

38. On around 8 November 2021, the Applicant’s wife provided Police with a statement retracting her report to police on 5 July 2021. She said:

I feel very horrible because all I wanted to do was report just in case there is an issue in the future in relation to property and custody of my kids. I really freaked out. I didn’t think this would cause action to be taken against my husband. The incident reported is not a true reflection of what happened.

39. On 24 March 2022, before the Campbelltown Local Court, the charges against the Applicant were withdrawn and the matter dismissed because the victim, his former wife, failed to attend court. As a result, the PADVO was also withdrawn.

40. Constable Lambourne, who works at Campbelltown City PAC, estimated that he attended 6 to 9 domestic violence incidents per week, had attended between 800 and 1000 callouts to domestic violence reports in the 2 years and 8 months since he started working as a police officer, and additionally dealt with complaints of domestic violence by victims reporting in person at the police station 1 to 2 times per week. He said:

In my experience as a police officer, it is common for there to be delay between an incident of domestic violence and a report of domestic violence because of the fears that domestic violence victims have about the repercussions of reporting domestic violence. In my experience, reports of domestic violence made in person at Campbelltown Police Station, as opposed to 000 calls, are more likely to involve a report of a lengthy history of domestic violence rather than just one incident.

In my experience as a police officer dealing with domestic violence:

a. most domestic violence offenders deny that they have engaged in domestic violence (and Mr Saad was no different);

b. domestic violence is committed by individuals from a wide range of socio- economic, racial and educational backgrounds including individuals who are confident, articulate and appear well-educated (like Mr Saad); and

c. it is common for domestic violence victims to withdraw or change their statements in relation to domestic violence. I am aware of colleagues who have been involved in domestic violence matters in which victims have reported domestic violence and withdrawn their statement, but police have subsequently responded to further reports of domestic violence between the same individuals (although I have not attended such a job myself).

In my experience as a police officer dealing with domestic violence, it is also common for domestic violence victims to fail to attend court hearings and for charges to be withdraw or dismissed as a result. l estimate that approximately 50% of domestic violence related charges that I have laid have been withdrawn or dismissed as a result of the victim not attending court to give evidence.

41. In relation to the Applicant’s ex-wife’s contradicting statements, Constable Lambourne said:

I have had the benefit of participating in the interview with [wife] on 5 July 2021 and reviewing [wife]’s statement dated 8 November 2022. Based on my experience as a police officer, I am of the opinion that [wife]’s report on 5 July 2021 was truthful and a more credible version of events that set out in [her] statement.

42. Under cross examination, Constable Lambourne explained that he had done as much as he could do to get the Applicant’s ex-wife to attend court but “we don’t force people”.

Respondent’s evidence of Applicant’s Traffic Record and Licence Details

43. The Respondent’s evidence also contained the Applicant’s traffic record which included, since 2004:

1. 27 speeding offences (including three speeding offences between March 2021 and September 2022);

2. driving while his driver’s licence was suspended (on 23 October 2009) which resulted in the Applicant being disqualified from driving for 12 months;

3. driving while disqualified (on 2 April 2010) which resulted in a section 10 good behaviour bond;

4. 5 offences of driving whilst using a hand-held mobile device (including as recently as January 2021);

5. 2 offences of failing to wear a seatbelt (in January 2008 and June 2012);

6. driving on or over a continuous white line (on 12 September 2012);

7. disobeying traffic lights (on 20 April 2017); and

8. failing to stop at a red arrow (on 23 November 2018).

44. Criminal offences related to the Applicant’s traffic record include:

1. On 8 March 2009, the Applicant was driving along Alfords Point Road in Padstow Heights when he was detected by police driving 103 km/h in an 80 km/h zone. When the Applicant was pulled over by police, he was asked “are you suspended disqualified or cancelled” to which he said “no”. When police conducted a check on the Applicant’s driver’s licence, it revealed that his driver’s licence was suspended due to a fine default from 3 October 2008, and that the Applicant had been informed of the suspension on 25 January 2009. On 8 March 2009, the Applicant was charged with: “Drive while licence suspended” contrary to section 25A(2)(a) of the Road Transport (Driver Licensing) Act 1998 (NSW) (Sequence 1); and “Exceed speed over 15 km/h” contrary to section 20 of the Road Rules 2008 (NSW) (Sequence 2). On 25 June 2009, before Bankstown Local Court, the Applicant was found guilty and fined $243 in relation to Sequence 2, and Sequence 1 was dismissed.

2. On 22 October 2009, the Applicant was driving on Foreshore Road in Botany when he was detected by police driving 109 km/h in a 70 km/h zone. Police directed the Applicant to stop. When police conducted a check on the Applicant’s driver’s licence, the check revealed that the Applicant’s driver’s licence was suspended due to the Applicant exceeding demerit points for the period 4 June 2009 to 3 April 2010. When the Applicant was asked about this, he said “I was on a good behaviour licence, I got booked and now it’s suspended for 10 months. I know I shouldn’t be driving”. On 23 October 2009, the Applicant was charged with: “Drive while licence suspended” contrary to section 25A(2)(a) of the Road Transport (Driver Licensing) Act 1998 (NSW); and “Exceed speed over 30 km/h” contrary to section 20 of the Road Rules 2008 (NSW). On 18 November 2009, before Waverley Local Court, the Applicant was found guilty, fined and disqualified from holding a driver’s licence for a total of 15 months.

3. On 2 April 2010, the Applicant was driving on the Princes Highway in the Royal National Park when he was stopped for a random breath test. When police obtained and conducted checks on the Applicant’s driver’s licence, Police identified that the Applicant was disqualified from holding a driver’s licence. The Applicant was charged with “drive while disqualified for licence” contrary to section 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998 (NSW). On 4 October 2010, the Applicant was found was found guilty of the charge and discharged subject to a 24-month good behaviour bond in accordance with section 10 of the Crimes (Sentencing & Procedure) Act 1999 (NSW).

45. The Applicant’s driver’s licence was suspended on 11 occasions for both demerit points and fine defaults: from 14 July 2006 for a period of six months; from 27 November 2007 for a period nine months; from 2 October 2008 for a period five months; from 3 October 2008 for a period of six months; from 4 June 2009 for a period of ten months; from 11 February 2014 for a period of three months; from 17 February 2015 for a period of six months; from 7 February 2018 for a period of three months; from 10 July 2018 for a period of six weeks; from 31 March 2020 for a period of one day; and from 18 May 2021 for a period of three months. The Applicant was also disqualified from holding a driver’s licence for the period 18 November 2009 to 17 February 2011 for driving while suspended and disqualified. The suspensions referred to of 2 October 2008, 11 February 2014 and 18 May 2021 were not implemented as the Applicant became subject to good behaviour licences in accordance with section 36 of the Road Transport Act 2013 (NSW) (and for the offences prior to 2013, section 16 of the Road Transport (Driver Licensing) Act 1998 (NSW)).

Respondent’s other evidence

46. The Respondent also included in its s 58 documents evidence of an interaction between the Applicant and the NSW Rural Fire Service (RFS) on 6 October 2020, which attended the Applicant’s residence due to a fire at the rear of the property. The RFS classified the fire as an illegal burn. An altercation between the Applicant and RFS officers occurred which resulted in the Police being called by the RFS for assistance:

Saad was immediately aggressive towards [RFS officer 1] and [RFS officer 2]. He was advised the fire would be extinguished or the police would be called. Saad continued to be aggressive and walked towards [RFS officer 2]. [RFS officer 2] feared that the situation was going escalate so called for urgent police assistance. They got back into the fire truck and were able to extinguish the fire via an external hose.

Applicant’s evidence

47. The Applicant characterized the police reports of domestic violence prior to 2021 as “verbal arguments” or “non-events”, attributable to strict parental upbringing and cultural differences. He stated “my mother used the police force as a parenting enforcement agency”, and “there was no ADVO taken out by the NSW Police for the protection of my parents whilst I was a minor, nor when I became an adult” and there were no incidents recorded following the death of his mother, 18 years prior.

48. Regarding the accusations of domestic violence by his ex-wife, the Applicant stated:

During the course of our relationship, we did not have any Police involvement or complaints of any form of domestic violence, until [wife] made a complaint to NSW Police on 5^th July 2021.

On or about 6^th July 2021 I considered my relationship with [wife] was over.

A variation was made the ADVO on 21 July 2021, so [wife] and I could co-parent and communicate about the children.

On or about 8^th November 2021, [wife] recanted her evidence.

[wife] and I entered into Consent Orders in the Family Court on 18 October 2021. Those Orders dealt with both parenting and property Orders. We are and have been co-parenting our 5 children since 21^st July 2021. This means we speak to each other daily and have been since July 2021. We are also in touch on SMS daily and on email weekly. Our youngest child is 7 years old and we are likely to be co-parenting for another 11 years, but we both know that culturally we will be still co-parenting long after our kids have turned 18.

…

On 25 November 2022 [wife] and I were divorced.

There have not been any allegations raised by [wife] or our children with respect to any need for protection or any other charges brought against me, apart from the complaint raised by [wife] in July 2021.

49. Under cross examination he agreed that he and his then wife had argued about his plan for her to move, with their 5 children, out of the family home to another property, and that is what happened a month or so after their argument. He agreed that he had grabbed her by the arms “I went to pull her up and she was wearing socks and she slipped”. He denied dragging her across the carpet but agreed she had received a carpet burn. He did not accept that the carpet burn was caused by him dragging her along the carpet. He then later denied pulling her up from the couch. He denied hitting her previously in their marriage, and denied her account of the incident as expressed to police on 5 July 2021. He denied discussing her statement with her and encouraging her to recant. He said he only spoke to her by phone in relation to their parenting plan and that “I deemed the relationship over and went straight to divorce proceedings.” The Applicant could not remember how he had obtained a copy of his wife’s retraction statement or when he first knew about it. He denied encouraging her not to show up at Court.

50. In relation to his driving offences, the Applicant stated that he has been driving for 23 years on Sydney roads, and that 50% of all infringements ever obtained by him were between the years 2000 and 2009, when he was “roughly between the age of 16 and 25 years old”. Since 2013 he had received 16 infringements, 6 of them being speeding under 10kmph and 4 of them being speeding under 20kmph. He has been traveling approximately 52km to and from his work in the city for the last 20 years, averaging approximately 70,000 kms per year. He stated that “almost all of the infringements I received in the last 10 years are when I am driving to and from the CBD. I have attended a driving course since to further help me understand the dangers of casual speeding”. Under cross examination, he claimed to comply with all road rules and attributed his repeated contraventions of those rules to being “an accident – I need to be more vigilant. I’m only human”. He said further:

When I was younger, my traffic record was horrific. I did a driver rehab course which helped. I was not mature enough to understand the consequences… I did the course about aged 21 or younger, around 2009/2010…

51. The Applicant accepted that speeding created risks for public safety. When asked why, despite the course he had undertaken, he had continued to break traffic laws, he said:

I have had traffic fines after that, yeah.

52. When it was put to him that his claim that he had “almost 40 years with no criminal record” was not true, he disagreed:

Why? I don’t consider traffic a criminal record. Its separate to traffic record.

53. In relation to the offences for driving while disqualified and suspended, the Applicant said:

Most of this was dismissed. The car was owned by my sister, it was registered, so I got suspended.

54. He could not recall admitting to police in the context of driving while disqualified that he shouldn’t be driving. He would not accept that his driving record had been consistently poor since 2009.

55. In support of his submissions that he was a fit and proper person to hold a firearms licence, the Applicant provided the Tribunal with evidence of his community service and charity, including estimated donations by him through the Christian Orthodox Church of $79,000. He also gave evidence of his personal achievements. The Applicant said:

I have been serving the community since I was a teenager: School organized fund raisers for salvation army projects, Planting trees, cleaning beaches and raising money for medical research through walkathons and 40 hour famine.

In the past 10 years, Me and my ex-wife have officially donated approximately $145,000 to community school building funds through the Christian Orthodox Church.

I personally have donated officially $79,000 in the last 10 years.

We both have unofficially donated double that amount through various payment to tradesmen, material purchases and donations to families experiencing severe financial hardship and domestic violence victims.

I took it on myself to undergo a trade certificate in 2014 to be a carpenter to be able to help build and repair homes for the churches for people that need temporary residence for various reasons including domestic violence and refugees fleeing from persecution.

I have been awarded the cook community award in 2015 in person from the former Prime minister Scott Morrison for my service in the community.

Personal Achievements

Having 5 amazing children all currently attending school.

Almost 40 years old with no criminal record

An unblemished credit rating

Successfully Responsible for a mortgage since I purchased my first property at the age of 19

Long term tenure in all my work positions

I have been ranked in the top 3 best managers in my current organization by my staff and piers pooled within 27 different managers, 5 years in a row.

I have personally saved 2 people’s lives from certain death while others watched. One being an old gentleman, tripping over while chasing his hat in an underground train tunnel on Redfern train station diving headfirst in front of a moving train. I dove to catch him before he connected with the train. The other was one of my ex bosses, he took medication before a flight and went into an epileptic fit almost biting of his own tongue off. I immediately attended to his aid and risked my fingers to save him and cleared his airways preparing for CPR till the ambulance arrived.

56. In relation to his firearms licence, the Applicant stated:

The main reason I applied for the licence was to be able shoot for sports and vermin control on the church properties and monasteries.

I have had my license reviewed and renewed twice since being initially granted the license. Most recently being in 2018.

My driving record and any police recorders presented as evidence to the court was available to the police commissioner then. I was still granted my license for 5 years.

Since I obtained the Firearms License, I have had 2 police inspections and was fully compliant to all storage regulations.

I have held my firearms license and firearms for almost 15 years without incident or any breach of regulations.

I have spent over $20,000 on rifles and spent months searching for the right configuration.

Shooting helps me bond with my 75-year-old Father as it’s a sport not physically demanding for him and it gives us a level competitive playground.

My father obtained his firearms license to for us to be able to socialise together at the range

I have been shooting for 15 years, it’s a sport that is more and more fitting for me as I get older and riddled with sports injuries.

The shooting range is literally in the Street I live in.

Consideration

57. The Tribunal’s role in determining whether the Applicant is a fit and proper person to hold a firearms licence, and whether it is in the public interest for him to hold a firearms licence, must be informed by the principles and objectives of the Act. Specifically, the principles that firearm possession and use is a privilege conditional upon the overriding need to ensure public safety, and the prioritisation of community interests over an individual’s private interests.

58. In considering all the evidence put before the Tribunal, the following relevant circumstances are identified:

1. The Applicant’s history of domestic complaints made by his parents;

2. The 2021 domestic violence charges brought against the Applicant in relation to his ex wife, and their withdrawal/dismissal;

3. The Applicant’s history of traffic offences;

4. The incident with RFS;

5. The applicant’s character and personal circumstances.

59. Dealing with each in turn, I make the following findings.

Domestic complaints made by parents

60. The Applicant submitted that the Tribunal should place little or no weight on the evidence regarding domestic complaints made by his parents. The letter from the Applicant’s father dated 9 April 2023 provides contextual background for the domestic complaints made by his late wife, and supports the Applicant’s submission in relation to them. I accept the evidence of the Applicant, as supported by comments made in the COPS event reports of those incidents in 1998 – 2001, that his mother’s strict parenting style caused these reports to be made by police in circumstances where she “used the police force as a parenting enforcement agency”, with police reporting “she appears to be an overbearing mother worried about a normal type of child”, “she is overprotective of the POI and places unreasonable rules upon him”, “appears that mother has some unrealistic expectations for kids…” and “the victim wanted police to speak to her son to frighten him… the basis of the problems between her and her son appear to be cultural/generational issues”.

61. Although noting the conduct was dated, the Respondent submitted that the Applicant’s involvement in domestic violence incidents with his mother and father demonstrate his aggressive and volatile behaviour.

62. I accept the Applicant’s evidence as corroborated by his father’s correspondence and the comments made by police in COPS event reports relevant to the specific incidents in 1998 to 2001. In those circumstances I place no weight on this evidence.

2021 Domestic violence charges

63. In relation to the 2021 domestic violence charges, the Applicant relies on the 8 November 2021 statement of his ex-wife, which retracted her allegations against him. His submissions and responses in cross examination largely repeated those retractions and explanations she gave for her earlier statement. The Applicant submitted that his ex-wife was scared that she was going to lose their kids if she moved out and so went to the extreme measure of making the domestic violence allegations to avoid this. The Applicant submitted that the Respondent was “attempting to go behind the findings of the Court to suggest to this Tribunal that I have committed domestic violence crimes”, and denied that he had done so. He submitted that he was in regular contact with his ex-wife due to their ongoing parenting arrangements and “if there had been any voracity to the allegations raised against me (which I deny), then there would have presumably have been an issue either prior to the 2021 allegations or any allegations since that time”.

64. The Respondent submitted that although the Applicant’s (then) wife retracted the statement she provided to police on 5 July 2021 and the 2021 Charges were not proven, the Tribunal should be satisfied that her DVEC statement made on 5 July 2021 is a truthful account of events on 4 and 29 June 2021, and more credible that her subsequent retraction on 8 November 2021 for the following reasons:

1. the photograph of her injured elbow taken on 5 July 2021, is consistent with her being dragged along carpet and not consistent with her merely slipping over when Mr Saad attempted to pick her up;

2. in her DVEC statement, she presents as authentic and genuinely fearful for her safety, which is consistent with Constable Lambourne’s impression of her on 5 July 2021;

3. the Applicant’s engagement in domestic violence on 4 and 29 June 2021 is more consistent with his aggressive behaviour towards the RFS and his parents than the assertion in her retractions statement on 8 November 2021 that the Applicant “has never been violent or threatening to me in our entire 12 years of marriage”; and

4. it is much more likely than not that she retracted her DVEC statement because she feared the repercussions for her and the Applicant amongst their local church community, particularly their reputation.

65. I don’t agree that the evidence before me supports the findings submitted at [64(1)], [64(3)] or [64(4)] above. I do, however, agree that the evidence supports the finding submitted at [64(2)] above and give the Applicant’s ex-wife’s retraction statement of 8 November 2021 no weight in circumstances where:

1. it post-dates the conduct said to have occurred by some months, in contrast with the statement provided to police on 5 July 2021;

2. the Applicant and his ex-wife were clearly involved in the negotiation and implementation of parenting and financial orders in the intervening period between when she first reported the allegations to Police and when she retracted them, as demonstrated by the making of consent orders by the Family Court on 18 October 2021;

3. it is inconsistent in some parts with admissions already made by the Applicant; and

4. she did not make herself available to the Local Court hearing the criminal charges, for the purpose of her evidence and inconsistent statements being tested.

66. The Respondent submitted that the Tribunal should find that the Applicant did engage in the underlying domestic violence that was the subject of the 2021 domestic violence charges, relying on the evidence of Constable Lambourne about his experience with the Applicant’s ex-wife and domestic violence matters. The Respondent referred to the decision of Pemberton v Commissioner of Police, NSW Police Force [2022] NSWCATAD 288 where, in the context of a refusal of a firearms licence, the Tribunal said (at [51]) that:

…allegations of domestic violence frequently do not result in convictions, and AVOs are often withdrawn because the alleged victims do not wish to proceed. Further, victims of domestic violence do not always report incidents or pursue proceedings because of fear of repercussions.”

67. I agree with the Respondent that domestic violence incidents are a serious cause for concern. Although the 2021 domestic violence charges and associated ADVO were subsequently withdrawn, as discussed at [26] above, in determining whether it is in the public interest for the Applicant to hold a firearms licence, the Tribunal is concerned with whether or not the underlying conduct occurred, irrespective of whether the Applicant was convicted or was even charged for that conduct.

68. I am satisfied on the evidence before me that the conduct occurred as alleged in the police Facts Sheet for the charges. The Facts Sheet is supported by the evidence of the Applicant’s ex-wife in her interview and the statement she gave to police on 5 July 2021, and the evidence of Constable Lambourne. As discussed above, I give her retraction statement of 8 November 2021 no weight.

History of Traffic offences

69. With respect to the Applicant’s traffic record, I accept the Respondent’s submission that the Applicant has a very poor driving record, which indicates an inability to appropriately and seriously consider and observe legal regulations which are imposed for public safety reasons, and further indicates a lack of responsibility for public safety: see Tannous v Commissioner of Police [2011] NSWADT 116 (Tannous) at [32].

70. The Applicant submitted that the allegations regarding mobile phone usage should be given limited weight in circumstances where the charges date to the period 2007 to 2008 and the contraventions for “driving while on a hand-held device laws only passed though parliament on 1st of July 2008”. He also submitted that his traffic record had not previously prevented him from obtaining or renewing his firearms licence.

71. The Respondent submitted that the evidence demonstrated that the Applicant continued to act with disregard for traffic laws. In particular, since 2020, the Applicant had been caught speeding five times as well as caught using his phone while driving. In the circumstances, the Tribunal should not be satisfied that the Applicant’s attitude towards traffic laws that are aimed at ensuring public safety have changed significantly, or at all. Rather, the Applicant continues to demonstrate a disregard for such laws which are aimed at ensuring public safety.

72. As referred to above at [50] to [54], the Applicant seemed unable in cross examination to accept that his long history of traffic infringements and offences could impact his fitness and propriety to hold a firearms licence. He sought to diminish the volume and severity of the infringements and regulatory contraventions by characterising them as “an accident” or attributing them to being human. He would not accept that his driving record had been consistently poor since 2009.

73. A single low level traffic infringement or even a few low level traffic infringements over the course of 23 years holding a driving licence could possibly, in different circumstances, be so characterised as an accident or merely attributable to human error. So could some infringements which occurred in the first few years of holding a licence, if there was an obvious absence of continued infringements once appropriate additional education or training was undertaken. However, the applicant’s infringements were multiple, were repeated over the course of his licence, continued after undertaking a driving course intended to rectify his “youthful mistakes”, and continued despite being charged and convicted of criminal offences for driving while suspended or disqualified on three occasions in 2009 and 2010. His latest suspension, although not implemented, was in May 2021. He continued receiving infringements for speeding in 2022. In my view his traffic and driving record demonstrates a long and sustained history of traffic infringements analogous to that considered, for example, in O’Brien v Commissioner of Police [2022] NSWCATAD 259.

74. In Himo v Commissioner of Police [2021] NSWCATAD 321 at [102], the Tribunal stated that:

[a] disregard for a regulatory scheme aimed at ensuring public safety is a very relevant consideration in determining whether or it is contrary to the public interest for the Applicant to hold a firearms licence.

75. Traffic laws and regulations are one such scheme. The Applicant's traffic record is directly relevant to the question of public interest under the firearms legislation. As Judicial Member Hunstman in the Administrative Decisions Tribunal in Tannous at [38] stated:

'It is not in the public interest for a person to be licensed to possess a firearm, where the person does not have proper regard to laws and regulatory schemes which seek to ensure public safety.'

The incident with RFS

76. The Respondent submitted that the Applicant’s interaction with RFS officers on 6 October 2020 demonstrated his aggressive and threatening behaviour. The Applicant submitted that the allegations raised against him in these proceedings regarding his interactions with the RFS on that occasion are “incorrect and untrue and without any evidence presented to the Tribunal”.

77. The only evidence of the incident from the Respondent is that contained within the COPS event report. No statements were obtained from the RFS officers or anything further provided to the Tribunal. The Applicant submitted (without evidence) that:

the Rural Fire Services chief attended my home the next day after the event, as I had captured it on video. I received an apology and damages for repair to the gate to my property damaged by RFS.

78. I make no finding on the evidence before this Tribunal in relation to this incident and give it no weight in my considerations accordingly.

The Applicant’s character and personal circumstances

79. The Applicant gave evidence, as referred to above at [55] and [56], of his community service, charity, personal and sporting achievements, and reasons for wanting a firearms licence. The Respondent did not test the Applicant’s evidence about his community service, charity, or personal achievements, or his reasons for wanting a firearms licence. I accept that evidence and give it reasonable weight.

80. The Applicant provided the Tribunal with copies of 3 references provided for use in his criminal proceedings, each dated 23 March 2022 and addressed to the presiding magistrate at Campbelltown Local Court. One was from his father, one was from the CEO of the company at which the Applicant was employed or otherwise professionally engaged, and one was from a former colleague at the same company. Each referee professed shock or surprise at the criminal domestic violence offences with which he was charged. None of these 3 references made any comments about the Applicant’s fitness or propriety in the context of holding a firearms licence. Consistent with the authorities in Loye v Director General, Department of Transport [2000] NSWADT 145 at [42] and [44], Sawires v Commissioner of Police [2010] NSWADT 4 at [49] - [53] and Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 at [40] I give these references limited weight.

81. The Applicant’s father additionally provided a letter dated 9 April 2023, which I have referred to above at [60] in the context of my consideration of the Applicant’s evidence about domestic disputes with his parents between 1998 and 2001. That letter also contained some comments about the Applicant’s character and suitability to hold a firearms licence:

Shooting is a sport that gave he and I something to bond over and it put us on a level playing field. Bishoy’s work obligations and his responsibilities with his 5 children means that his spare time is limited and while we used to enjoy bonding at the shooting range, we have not been able to do so in almost 2 years.

Bishoy got his firearms licence over 15 years ago in 2007 and he has had his licence reviewed and renewed every 5 years since. I have complete faith in my son’s ability to handle firearms safely and responsibly, and I have no doubt that he is a fit and proper person to hold one.

I wish for this statement to provide you with an understanding of the experiences my family has had during our assimilation into this great country, and I hope that by better understanding these experiences, you are able to reinstate Bishoy’s firearms licence.

82. Whilst the Applicant’s father’s 23 March 2022 reference included acknowledgement of the Applicant’s 2021 domestic violence charges, there was no such acknowledgement in the 9 April 2023 letter. I infer that this was because the charges were withdrawn on 24 March 2022. The 9 April 2023 letter also made no reference to the Applicant’s extensive traffic infringements or offences. It is unsurprising that the Applicant’s father and shooting partner would have “complete faith” in his son’s ability to handle firearms safely and responsibly, but this gives the Tribunal little confidence in the Applicant’s regard for public safety considerations outside his personal interest. I give the Applicant’s father’s reference limited weight accordingly.

Conclusion

83. I have found that the Applicant did engage in the conduct described in the 2021 domestic violence charges Facts Sheet, despite those charges being withdrawn. I give that considerable weight in determining whether the Applicant is a fit and proper person for the purpose of holding a firearms licence. It is also significant in the context of determining whether it would be in the public interest for the Applicant to hold a firearms licence.

84. I also give significant weight to the Applicant’s long history of traffic infringements and offences, and his failure to acknowledge or recognise that his non-compliance with traffic laws detracts from his fitness and propriety.

85. I have given the Applicant’s community service, charity, personal and sporting achievements, and reasons for wanting a firearms licence reasonable weight. I also give reasonable weight to the Applicant’s history of holding a firearms licence and compliance with the Act and passing inspections and reviews without previous safety concerns. I have given some limited weight to the character references provided in favour of the Applicant, for the reasons discussed above.

86. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, past conduct of the Applicant is a significant guide in assessing likely future conduct: Ford v Commissioner of Police [2022] NSWCATAD 87 at [59].

87. On balance, I agree with the Respondent’s submission that collectively, the Applicant’s conduct illustrates behaviour that is inconsistent with the privilege of a firearms licence. Where there has been, or is, a possibility of a threat to the public’s safety, the public’s right to safety must outweigh an individual’s privilege to possess and use a firearm. The Applicant’s involvement in domestic violence, together with the Applicant’s poor driving record, means that the Tribunal is not satisfied that there is “virtually no risk” to public safety if the Applicant has a firearms licence, and it is not in the public interest or the Applicant to hold a firearms licence.

83. The correct and preferable decision is for the Respondent’s decision to revoke the Applicant’s firearms licence to be affirmed.

Orders

1. The respondent’s decision to revoke the Applicant’s firearms licence 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: 22 December 2023