Yaghi v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 91

CITATION:	Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91
DIVISION:	General Division
PARTIES:	APPLICANT Khaled Yaghi RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003219
HEARING DATES:	8/11/00
SUBMISSIONS CLOSED:	11/08/2000
DATE OF DECISION:	06/04/2001
BEFORE:	Lees M - Judicial Member
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms Act 1996 Security Industry Act 1997
CASES CITED:	Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 O’Sullivan & Farrer (1989) 168 CLR 210 Cusumano v. Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 O'Sullivan v. Farrer (1989) 168 CLR 210 Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 Ward –v- Commissioner of Police [2000] NSWADT 28
REPRESENTATION:	APPLICANT M Woods, solicitor RESPONDENT J Tunks, solicitor
ORDERS:	1. The decision of the Commissioner of Police to revoke Mr Yaghi's firearm licence is set aside.

Reasons for Decision

Background

1 Mr Yaghi applied to the Administrative Decisions Tribunal (the Tribunal) on 28th June 2000 for review of the decision dated 13th June 2000 to revoke his firearms licence made by a delegate of the Commissioner of Police (the Commissioner).

2 The Tribunal’s jurisdiction derives from sections 75 of the Firearms Act 1996 (the Act) and 38 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act).

The relevant law

3 Section 3 sets out the principles and objects of the Act. Section 3(1) provides:

(1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety:
(i) by imposing strict controls on the possession and use of firearms, and
(ii)by promoting the safe and responsible storage and use of firearms,….
(2) The objects of this Act are as follows: ….
(e) to ensure that firearms are stored and conveyed in a safe and secure manner …

4 Section 11(3) of the Act provides that

(3) A licence must not be issued unless:

(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and …
(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, …

5 Section 11(5)(b) of the Act provides:

(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 ….

6 Section 19 of the Act provides

(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

(2) Without limiting subsection (1), each licence is subject to the following conditions:

(a) the licensee must comply with the relevant safe keeping and storage requirements under this Act,…

7 Section 24(2) of the Act provides:

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

8 Section 39 of the Act provides

(1) A person who possesses a firearm must take all reasonable precautions to ensure:

(a) its safe keeping, and
(b) that it is not stolen or lost, and
(c) that it does not come into the possession of a person who is not authorised to possess the firearm……

(2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.

9 Clause 5 of the Firearms (General) Regulation 1997 (the Regulation) provides for offences that disqualify applicants. It states

For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:

(a) Offences relating to firearms or weapons
An offence relating to the possession or use of a firearm, or any other weapon, committed under:
(i) the law of any Australian jurisdiction, or …..

10 Clause 17 of the Regulation reads

In accordance with section 24 (2) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.

Evidence

11 Mr Yaghi did not appear to give evidence at the hearing but his legal representative, Mr Woods, attended before the Tribunal. Mr Woods was uncertain of his client’s instructions following their last meeting and attended, it appeared, out of a sense of duty and respect for both his client and the Tribunal. The only additional evidence to that already provided to the Tribunal on behalf of Mr Yaghi were two references.

12 On 14th October 1998 Mr Yaghi was issued with a category A & B firearms licence for ‘recreational hunting’.

13 On 28th May 1999, for reasons unrelated to this matter, the police searched Mr Yaghi’s property. During that search the police found an unloaded rifle in an upstairs living room and another unloaded rifle in a gun case under the bed in an adult’s bedroom. At the time of the search there were several young children at the property. The police seized the firearms.

14 On 23rd September 1999 Mr Yaghi was charged with two counts of ‘not keeping firearms safely’.

15 On 1st November 1999 Mr Yaghi pleaded guilty to the offences and was convicted and fined $500 at the Downing Centre Local Court after which his firearms licence was suspended and subsequently revoked by the Commissioner.

16 On 19th January 2000 Mr Yaghi’s appeal against the severity of the penalty imposed was heard in the District Court. The appeal was dismissed and the Local Court’s convictions and orders were confirmed.

17 On 29th May 2000 Mr Yaghi sought internal review of the Commissioner’s revocation decision. The internal review decision of 13th June 2000 maintained the decision to revoke.

18 The material before the Tribunal consisted in copies of:

• Mr Yaghi’s completed Register of firearms in his possession dated 8th June 1998;
• Mr Yaghi’s Application for an Individual Firearms Licence dated 16th June 1998;
• several differently dated Police Service ‘Issue’ documents and a Notice of Suspension of firearms licence dated 4th November 1999;
• New South Wales Police Service Firearms Registry Licence/Permit Internal Review Adjudication Sheet, Result Sheet, Revocation Order and Statement of Reasons for the original decision to revoke dated 6th December 1999;
• District Court ‘Result Advice Sheet’ dated 28th January 2000;
• Police Issue document dated 22nd April 2000 stating Mr Yaghi’s third gun was placed with a firearms dealer on 20th April 2000;
• Mr Yaghi’s request for Internal Review dated 25th May 2000 together with an application for a permit to acquire a firearm including an explanation as to why the seized rifles were where they were at the very early hour of the morning they were found by Police (they had been cleaned and made ready for a proposed hunting trip later that morning) and submissions as to why he wished to have the confiscated firearms returned, adding that he understood his offences and that he had learnt ‘a great lesson’ about his responsibilities in relation to the firearms.
• Mr Yaghi’s application for Tribunal review dated 26 June 2000 stating that his reason for seeking review was because he was not guilty and the decision was not fair. A copy of the Commissioner’s Internal Review Decision/Statement of Reasons dated 13th June 2000 was attached;
• NSW Police Service ‘Criminal History - Bail Report’ record and Computerised Operational Policing System (COPS) records referring to Mr Yaghi; and
• two personal references for Mr Yaghi from a longstanding friend and a property owner who permits Mr Yaghi to shoot on his property.

19 Mr Yaghi’s written letter of 25/26 May 2000 describes the fact the two guns were not kept safely at the relevant time as an ‘unfortunate incident’ in his application for internal review.

20 Mr Tunks for the Commissioner submitted that Mr Yaghi should have his licence revoked because of the operation of s 24(2) and s 11(5)(b) and relied in this regard on the Tribunal decision relating to a parallel provision in the Security Industry Act 1998 (NSW) of Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6. Mr Tunks also submitted that Mr Yaghi no longer meets the test of a fit and proper person (s 24(2)(c)) and that it was not in the public interest for Mr Yaghi to continue to hold a licence (s 24(2)(d) and cl 17) referring in the latter regard to the decisions of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 and O’Sullivan & Farrer (1989) 168 CLR 210.

21 The submissions made by Mr Woods on Mr Yaghi’s behalf were that s 24(2) of the Act should not be read with s 11(5)(b) as the latter ‘is directed at people applying for licences as distinct from people who already have licences’. Mr Woods submitted that once a person who holds a licence ‘has been convicted it becomes a matter of discretion whether that person is able to keep the licence’. Mr Woods also noted that ‘an applicant for a gun licence could not have been convicted of the charge laid against’ Mr Yaghi.

22 Mr Woods submitted there was no evidence that Mr Yaghi was not a fit and proper person or a threat to the community as there was no evidence of any other convictions of any kind or any suggestion he had used his guns in a way that would do so. Mr Woods submitted that some of the material provided to the Tribunal, namely the COPS reports, was ‘unfair and misleading’. Mr Woods submitted that the evidence establishes that Mr Yaghi had kept his guns in an unsafe position’.

Findings and Reasoning

23 Section 24(2) of the Act sets out some of the grounds on which the Commissioner may revoke a firearm licence. In his submissions on behalf of the Commissioner, Mr Tunks relied on s 24(2)(a), (c) and (d). No reference was made by Mr Tunks to s 24 (2)(b) - if the licensee ‘(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention’ - although the Commissioner’s delegate did in the internal review statement of reasons. Neither Mr Tunks nor the delegate referred to s 24 (2)(b)(iii) concerning a licensee contravening ‘any condition of the licence’.

24 On the material provided to the Tribunal, Mr Yaghi was convicted on 1st November 1999 of two counts of ‘not taking all reasonable precautions to ensure the safekeeping of firearms’, offences contrary to s 39 of the Act.

25 In relation to Mr Tunks’ submission regarding s 24(2)(a) and indirectly s 11(5) and cl 5, it is my view that the power to revoke may not be exercised in circumstances where a person has committed and been found guilty of an offence subsequent to the application and granting of a licence. Accordingly, as Mr Yaghi’s licence application was dated 16th June 1998 and both his committing of the offence and conviction occurred subsequently, I do not agree that this discretion can apply in his circumstances.

26 Some material provided to the Tribunal on behalf of the Commissioner was provided in order to question Mr Yaghi’s fitness to hold a licence. This was the COPS report records which suggest Mr Yaghi was involved and may face charges in relation to two other matters - one relating to motor vehicles and the other relating to a minor assault. Neither ‘potential’ offence involved firearms at all. I am not persuaded that these reports provide a sufficient basis to found that Mr Yaghi is not fit and proper.

27 Apart from the COPS reports and the fact of the two offences no other evidence was provided to establish that Mr Yaghi was no longer fit and proper. I am not of the view that the offences alone are a sufficient basis on which to draw that conclusion. I do not think it follows without anything further that contravention of the Act necessarily renders a licensee to no longer be fit and proper. Even taken together I do not consider the COPS reports and the firearms offence sufficient to base a negative finding as to Mr Yaghi’s fitness.

28 Mr Yaghi has no convictions of any other kind. He has not been charged with any offence of any other kind.

29 Mr Yaghi’s evidence establishes his contrition at failing to meet the requirements of s 39 of the Act and that he understands his error and unlawfulness and has learned from the experience. He pleaded guilty to the offence and did not seek to excuse his conduct at any stage during the review process. He has an improved understanding of his responsibilities. He has the confidence and trust of the property owner who has allowed and would continue to allow Mr Yaghi to hunt on his land. There is no evidence to suggest or establish that Mr Yahgi’s improper conduct is likely to recur.

30 Accordingly, there is not sufficient relevant evidence to establish or persuade me that Mr Yaghi is no longer fit and proper.

31 The power to revoke under s 24(2)(d) and cl 17 relating to public interest is not a mandatory power requiring revocation upon certain criteria being met, for example ‘if X offence is committed by the licensee, it is not in the public interest for the licensee to continue to hold the licence’. Rather, it is a discretionary power and one for which the Act provides no express guidance as to its exercise.

32 As the Parliament has not chosen to make mandatory the power to revoke the licence in circumstances such as Mr Yaghi’s, but rather has provided the Commissioner with a discretionary power, it is reasonable to conclude that not all contraventions or breaches warrant the exercise of the power to revoke. There must be something more to be taken into account. It is suggested in another Tribunal decision concerning the Act that there may be a trivial or excusable contravention or breach which may not warrant the exercise of the discretion against a licensee, whereas a fundamental breach may (see Cusumano v. Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at para 25).

33 The High Court has considered the expression 'in the public interest' in a number of matters in different statutory contexts. In O'Sullivan v. Farrer (1989) 168 CLR 210, Mason CJ, Brennan J, Dawson J, and Gaudron J state at p 216 in a joint judgement, that

Where a power to decide is conferred by statute, a general discretion, confined only by the scope and purposes of the legislation will ordinarily be implied if the context (including the subject-matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made’…..

The expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ...” …..

34 The Australian Industrial Relations Commission stated in Comalco at p 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.”

35 The Tribunal’s Appeal Panel considered the exercise of the public interest discretion in a security industry licencing matter in Commissioner of Police v Toleafoa ([1999] NSWADTAP 9. It stated (at p 25) that the public interest is

‘. . . an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual….’.

36 The Deputy President of the Tribunal found that these comments apply equally to the Firearms legislation (see Ward –v- Commissioner of Police [2000] NSWADT 28 at para 33).

37 Accordingly, the relevant public interest considerations in a matter such as Mr Yaghi’s depend on both the circumstances giving rise to the matter and the scope and objects of the Act.

38 The provision expressing the most relevant object of the Act is s 3 (2)(e) which states that one object is to ‘ensure that firearms are stored and conveyed in a safe and secure manner….’.

39 Section 40 of the Act sets out very specifically and clearly the requirements for storage of firearms held under category A or B licences when the firearm is ‘not actually being used or carried……’.

40 The s 39 requirements are that the person who possesses the firearm must take all reasonable precautions to ensure:

(a) its safe keeping, and

(b) that it is not stolen or lost, and

(c) that it does not come into the possession of a person who is not authorised to possess the firearm.

41 The Regulation does not further specify, as is provided for by s 39(2) of the Act, any additional precautions that are taken to be reasonable precautions for the purposes of s 39(1).

42 Section 39 is the general provision relating to the safe keeping of firearms. Although applying to all firearms, it is most relevant when the firearm is being conveyed, carried or used. It is intended to govern the safekeeping of firearms when they are temporarily away from their usual place of storage.

43 Mr Yaghi’s offences were not that he failed to meet the Act’s specific storage requirements relating to his licence categories and firearms but that he failed to meet the general safe keeping requirements relating to the firearms while they were not being stored, that is while they were being kept for carriage or conveyance or actual carriage or conveyance elsewhere.

44 Some of the considerations that might be relevant in circumstances such as Mr Yaghi’s are:

• the public or private location of the licensee’s firearms;
• the presence or absence of the licensee at that location;
• the security of the location;
• the accessibility by unlicenced persons to the firearms;
• the time of day the firearms were unsafely kept;
• whether the firearms were loaded or not;
• the location of ammunition for the firearms;
• whether the nature of the breach was fundamental, trivial or excusable; and
• whether the safety of the public has been or is likely to be compromised.

45 Mr Yaghi’s guns were not in a public place. They were in his home. They were not accessible to the public. Mr Yaghi was present at the location of the firearms. The firearms were not loaded. The time of day the firearms were found to be kept unsafely was 7.50am. There were children at the location.

46 There was no evidence as to whether or not Mr Yaghi’s premises were locked. There was no evidence at all concerning the ammunition for the firearms. There was no evidence as to the wakefulness or otherwise of the people at the location at the relevant time. There was no evidence any person’s safety was actually threatened or compromised.

47 Remote or conceivable consequences of certain circumstances can be the subject of speculation but are not the legitimate subject of findings. There is always a possible danger to the public in the conveyance or carriage of firearms. Conceivably that danger may be immediate or remote: it may be direct and immediate such as where a loaded firearm is being used for a certain purpose such as hunting, or it may be indirect and remote following the theft of an unloaded firearm.

48 The extent to which the actions or omissions of licensees contribute to that danger is a matter of fact. Mr Yaghi failed to meet the standards set by s 39. He breached the Act. His breaches could not be described as trivial and are not excusable but neither in my view are they so fundamental that they in fact compromised the safety of the public. Additionally, there was nothing in the evidence to suggest that Mr Yaghi would commit the same offence again or that he poses any other threat to the community as far as his firearm licence is concerned.

49 There is no sufficient basis on which to conclude that it is not in the public interest for Mr Yaghi to continue to hold a firearm licence. Accordingly, I will not exercise the public interest discretion against Mr Yaghi.

50 No submissions were made by either party in relation to the discretionary powers found in ss 24(2)(b)(ii) and (iii). In my view, considering the circumstances giving rise to Mr Yaghi’s contraventions and the associated remoteness of danger to the public, together with Mr Yaghi’s approach and attitude to his contraventions and his future conduct, these discretions should not be exercised against Mr Yaghi.

Decision

51 My conclusion based on the material before the Tribunal is that the correct and preferable decision is that Mr Yaghi be allowed to continue to hold a firearm licence. Accordingly, in accordance with section 63 (3)(c) of the Tribunal Act, the decision of the Commissioner of Police to revoke Mr Yaghi’s firearms licence is set aside.