Al-Aaraj v Commissioner of Police, NSW Police Force

Al-Aaraj v Commissioner of Police, NSW Police Force - [2024] NSWCATAD 337 - NSWCATAD 2024 case summary — Zoe

[7]

Internal review

Mr Al-Aaraj exercised his right to seek an internal review and on 20 June 2023 the Commissioner affirmed the decision to refuse the licence application.
The Senior Adjudicator expressed "concern" that Mr Al-Aaraj was not a fit and proper person because of a lack of honesty, citing Weckert v Commissioner of Police, NSW Police Force [2011] NSWADT 197. The Senior Adjudicator also considered that Mr Al-Aaraj's history of firearms and weapons offences and the false information provided on the application form led to concerns that it would not be in the public interest for the Commissioner to issue to firearms licence.
The Senior Adjudicator took into account alleged conduct by Mr Al-Aaraj of attempting to sell a prohibited firearm using coded language. The Senior Adjudicator considered this to be part of circumstances to be taken into account, despite the fact that the charge in respect of that allegation was withdrawn. The Senior Adjudicator applied the civil standard of proof and concluded that the alleged conduct could have occurred and determined that it would not be in the public interest for Mr Al-Aaraj to be issued with a licence. Despite the passage of time since the alleged conduct, the Senior Adjudicator considered the alleged conduct to be so serious as to lead to an "erosion of public confidence in the administration of the firearms licensing system" if Mr Al-Aaraj was to be issued with a licence in those circumstances.
The Senior Adjudicator found Mr Al-Aaraj had provided false information on his application form and rejected the explanation given by Mr Al-Aaraj that Mr Alain Noujaim, the course instructor for the Firearms Safety Training Course he undertook, advised him that the Firearms General Permit granted to him in order to do the course "effectively allowed [him] to say that [his] licence has never been revoked" and he was placed in a "fresh position" and he should answer "no" on the form.
The Senior Adjudicator considered that Mr Al-Aaraj's prior conduct raised concerns for public safety and that Mr Al-Aaraj "display[ed] a lack of regard for the law".

[17]

For the Applicant

Mr Laycock said that his client disputed that he was using coded language in the way the Respondent alleged. He said this was not "independently verified" and was not an independent and accurate interpretation of what was said in the phone calls.
Mr Laycock said Mr Al-Aaraj accepted the convictions as recorded in his criminal history for the offences of possess prohibited weapons in 2009. The District Court convicted Mr Al-Aaraj on 12 August 2011 for offences of possession of a set of handcuffs, an extendable baton and a taser device. The charge in relation to possession of ammunition for a firearm for which Mr Al-Aaraj did not hold a licence was taken into account by the Court on a Form 1.
Mr Laycock said that the sentences given by the Court, including the issue of fines, reflected the gravity of the conduct.
Mr Laycock argued that Mr Al-Aaraj did not give false information on any of his firearms licence application forms, as was argued by the Respondent. He said that Mr Al-Aaraj held a genuine belief that this information was true and that it amounted to an honest and reasonable mistake of fact.
Mr Laycock said that his client was "way outside" the 10 year mandatory refusal period. This is a reference to section 11(5)(b) of the Firearms Act 1996 and clause 5(1)(a) of the Firearms Regulation 2017 which when applied meant that the Commissioner must not issue a firearms licence to Mr Al-Aaraj if his licence application is made within the period of 10 years of a conviction of a prescribed offence, which includes weapons offences. It is not disputed that the 10 year period expired in August 2021.
Mr Laycock submitted that his client had nothing adverse since the 2009 criminal matters. He said his client had not been informed why some of the charges had been withdrawn. He submitted that the low seriousness of the matters that proceeded and the passage of time mean that those convictions should have "low impact" on the decision the Tribunal had to make. He also submitted that his client had a good work history, qualifications and was a "good family man".

[20]

Evidence of Najat Azeez

Mr Azeez said he is a serving police officer. He said he has no experience in the enforcement of the firearms legislation, but that he had seized firearms in connection with domestic violence incidents.
Mr Azeez provided a character reference for Mr Al-Aaraj and gave oral evidence is his personal capacity as a private citizen. In the reference Mr Azeez said that he had known Mr Al-Aaraj for more than five years, although he does not specify the context. Mr Azeez states his belief that Mr Al-Aaraj is a person of high integrity and moral character. He described having "witnessed [Mr Al-Aaraj's] honesty and strong sense of responsibility". He describes Mr Al-Aaraj as hard-working and a family orientated person and stated his belief that Mr Al-Aaraj "maintains a responsible and law-abiding lifestyle".
Under questioning, Mr Azeez said that he met Mr Al-Aaraj through a friend. Mr Azeez said that Mr Al-Aaraj is his mechanic.
Ms Moses challenged Mr Azeez's assessment of Mr Al-Aaraj as a person of high integrity and moral character. She asked whether that was as Mr Azeez's mechanic. Mr Azeez said that Mr Al-Aaraj works at the same time he does, and his workplace is within Mr Azeez's Police Command. Mr Azeez said he drives by and stops to say hello to Mr Al-Aaraj.
Mr Azeez conceded that he was not very familiar with the safe storage requirements under the firearms legislation. He said he had some understanding but was not an expert on the requirements.
Ms Moses asked Mr Azeez how he could say, as he did in his reference, that he was confident that Mr Al-Aaraj "would handle firearms with care and caution". Mr Azeez said that his view was that Mr Al-Aaraj was a family man.
Mr Azeez conceded that he was not aware of the matters he had heard about concerning the intercepted calls. He said he was aware that Mr Al-Aaraj had a criminal record, but did not know the specifics.
Mr Azeez agreed that he was not aware that Mr Al-Aaraj had been charged with sell prohibited firearm to a person unauthorised to possess it and that the charge concerned an offer to sell a prohibited firearm, being a SKS rifle for the sum of $15,000 to 'Elias' and for $20,000 to Chris El-Azzi, neither of whom were authorised to possess prohibited firearms.
Mr Azeez agreed that he was not aware that Police executed a search warrant of Mr Al-Aaraj's home in 2009. However, Mr Azeez said he was aware that Police found Mr Al-Aaraj in possession prohibited weapons, namely a set of handcuffs, an extendable baton and a taser device. When asked whether he knew Mr Al-Aaraj was convicted and sentenced for the three weapons offences, he said he was told that Mr Al-Aaraj received a $500 fine.
Mr Azeez agreed that he was not aware that in fact Mr Al-Aaraj was sentenced to a section 9 bond and fined $1,100 for each of the extendable baton and taser device offences, although there was mention of the section 9 bond.
Ms Moses asked Mr Azeez about the ERISP video played earlier in the hearing. She asked Mr Azeez to assume certain facts about the intercepted calls which were that:

Mr Al-Aaraj was arrested and questioned as part of Strike Force Comrie which was an investigation into the possession and supply of illegal firearms
Mr Al-Aaraj was charged with attempting to sell a prohibited firearm to someone not authorised to possess such a firearm, and that the firearm was an SKS rifle, which is a military grade rifle. This charge was not proceeded with.
Mr Al-Aaraj attempted to source of prohibited firearms from a Mr El-Azzi, namely an AK 47 rifle and an SKS rifle, which led Mr El-Azzi being convicted of two counts of sell prohibited firearm to person unauthorised to possess it.
Mr Al-Aaraj participated in coded and veiled conversations to conceal an attempt to source and sell prohibited firearms.

Ms Moses asked Mr Azeez how it was in the circumstances of the convictions for the prohibited weapons and the ammunition offence and also the assumptions put to him above, if correct, that he could conclude that Mr Al-Aaraj was a person of high integrity and moral character.
Mr Azeez responded and said he believed people change and his assessment was based on how he perceived Mr Al-Aaraj and he knows Mr Al-Aaraj. Mr Azeez said he thought he was a good judge of character.
Ms Moses explained about the possess ammunition charge and that the circumstances giving rise to the charge were that Police alleged the .45 calibre ammunition was seized in the 2009 search from an unlocked locker in the garage of Mr Al-Aaraj's home.
For completeness, at this point I note that according to the statement of Detective Sergeant Ricky Aguis, dated 16 February 2009, (which is annexed to the Statement of Detective Senior Constable King filed in this proceeding) ammunition was located during the search of Mr Al-Aaraj's home in a cabinet and on shelving in the garage area that was not secured.
Ms Moses asked Mr Azeez if he still regarded Mr Al-Aaraj of being capable of handling firearms and complying with his obligations under the firearms legislation with care and caution.
Mr Azeez replied that the question was a hard question, and he didn't know how to answer it. He said that from what he had seen of Mr Al-Aaraj he knows him to be a "genuine, nice person".
Ms Moses put to Mr Azeez the Applicant's previous criminal history, the serious firearms charge and the continued concerns of Police about coded discussions. She asked Mr Azeez if he thought Mr Al-Aaraj could not be trusted to comply with the obligations imposed by the firearms legislation. Mr Azeez responded that he "would normally say yes" but pointed out that the events occurred in 2009 and some time had passed since then.
Ms Moses asked Mr Azeez whether the use of veiled conversation and coded language would lead him to conclude Mr Al-Aaraj would avoid his obligations if entrusted with firearms. He said he disagreed and that he stood by the character reference.
Ms Moses then put to Mr Azeez that Mr Al-Aaraj had put false information in a firearms application form, answering no in the 2014 form about whether in the last 10 years he had been convicted of a firearms or weapons offence. Again, she asked Mr Azeez if he thought Mr Al-Aaraj was of high integrity and moral character. Mr Azeez answered no, if Mr Al-Aaraj had done that deliberately.
Ms Moses suggested to Mr Azeez that in 2023 Mr Al-Aaraj gave a false answer on the form to questions about whether he had ever had a firearms licence refused or suspended or revoked. She asked Mr Azeez whether that changed his opinion of Mr Al-Aaraj and he answered yes.
Mr Azeez said that he thought Mr Al-Aaraj had lied on the forms and if it had been just one time he would assume he made a mistake, but it was twice.
I asked Mr Azeez whether he stood by his reference in support of Mr Al-Aaraj obtaining a firearms licence. He said in part, the conduct was so long ago and his own personal interactions with Mr Al-Aaraj were that he was "just a genuine nice guy". However, he said he thought Mr Al-Aaraj had not told the truth and "he shouldn't have lied". He added he did not think that Mr Al-Aaraj was a risk but he had lied. He said "I dislike that very much".

[21]

Evidence of Feroz Azmi

Mr Azmi provided a written character reference for Mr Al-Aaraj and also gave evidence at the hearing. Mr Azmi is a serving police officer, but gave evidence in his capacity as a private citizen.
In the reference, Mr Azmi stated that he had known Mr Al-Aaraj for seven years and Mr Al-Aaraj is a good friend and also his mechanic. He described Mr Al-Aaraj as a "very honest and ethical person", a "family man" and respectful in his dealings with clients and friends. He adds that in his view Mr Al-Aaraj is "a gentleman of complete integrity and good moral character" and a "responsible citizen".
At hearing, Mr Azmi said that he had been a serving police officer for almost 14 years. He had experience with the firearms legislation, at least in respect of domestic violence incidents, but no specific knowledge. He said he had a basic knowledge about the regulations concerning the safekeeping of firearms and ammunition.
Mr Azmi explained that Mr Al-Aaraj had looked after his cars. He described Mr Al-Aaraj as a "gentle and genuine person" and that he "felt like he's pretty much genuine" in his dealing with people. He agreed that his dealings with Mr Al-Aaraj were confined to when he serviced his car. He does not socialise with Mr Al-Aaraj. Mr Azmi said he "speaks to [Mr Al-Aaraj] on and off" as he calls him to check on the welfare of Mr Al-Aaraj's child who has an ongoing illness.
Mr Azmi said he knew that Mr Al-Aaraj had "certain charges" against him that were "later dropped related to firearms" and that this was going back 15 years ago. He said that Mr Al-Aaraj had mentioned that he had been fined $500 for having handcuffs and a baton. He agreed that Mr Al-Aaraj did not tell him about the fact Mr Al-Aaraj received a one-year section 9 bond and a fine of $1,100 for each of the baton and taser offences.
Mr Azmi said he was told by Mr Al-Aaraj he was charged with firearms offences but agreed that he "did not know the details" of the alleged attempts by Mr Al-Aaraj to sell prohibited firearms. Mr Azmi agreed he was surprised by those allegations. Having listened to the intercepted phone calls played in the hearing, Mr Azmi said it was a "bit surprising he was trying to sell something. I was not aware of that".
Ms Moses asked Mr Azmi whether having now watched the video and listened to what the Commissioner alleges to be coded conversations, whether he would still have provided a character reference for Mr Al-Aaraj in this proceeding. Mr Azmi said that he "maybe would have changed [his] mind". He later stated that he had no idea what the conversations in the recordings concerned or what Mr Al-Aaraj's intentions were.
Mr Azmi was taken to what the Commissioner alleged was false answers made by Mr Al-Aaraj on the 2014 and 2023 firearms application forms (refer to [83] and [84] above). Mr Azmi agreed that the answers on the forms were incorrect and added that he did not know whether Mr Al-Aaraj made a mistake or was lying.
In respect of the question in the 2023 form about his licence application being refused, Mr Azmi said that Mr Al-Aaraj had discussed with him that he was not allowed to obtain a firearms licence for 10 years. He said Mr Al-Aaraj told him that "someone he hired goofed up the information" and that it was "some sort of mistake". Mr Azmi agreed that if Mr Al-Aaraj had given incorrect information deliberately, he would have found that surprising and it would have affected his decision to provide a character reference. He said "If I knew he was doing something wrong I would not have supported him".
Mr Azmi said he had believed what Mr Al-Aaraj had said and wanted to "help him out". He said if he had knew the details about the incorrect answers on the forms he would have questioned Mr Al-Aaraj about those matters. He said that his view that Mr Al-Aaraj was responsible and ethical would not change, as he had seen Mr Al-Aaraj with customers.
Ms Moses put to Mr Azmi that Mr Al-Aaraj had not been candid about his criminal history, the charges laid and his dealings with the Firearms Registry. She asked Mr Azmi whether that would change his assessment of Mr Al-Aaraj's integrity and character. Mr Azmi said there may be an explanation and some of these things were things done in the past.
Ms Moses asked Mr Azmi about the seizure of ammunition referred to above at [77]. Mr Azmi said that he "did not know about the details". Ms Moses asked whether it concerned Mr Azmi that Mr Al-Aaraj was not licensed for a firearm that takes that ammunition. Mr Azmi agreed that it would affect the decision to give a character reference. Mr Azmi said he had only known Mr Al-Aaraj for the last seven years and stated that he was "unaware of his past" and that it "might have changed [his] mind".

[22]

Evidence of Mr Al-Aaraj

Mr Al-Aaraj provided an affidavit, dated 8 January 2024 in this proceeding. He stated in that affidavit that he was issued with a security licence on 16 February 2001. He said that the handcuffs and baton that led to the 2009 charges were bought by him and carried on his utility belt during the course of his work as a security guard.
Mr Al-Aaraj said these items were secured in his bedroom when they were found by Police. He said that the taser item "never worked as a taser" and "was more of a torch". He stated that the taser was found not be to a prohibited weapon and the matter was withdrawn at court.
Mr Al-Aaraj's affidavit refers to explanations he gave about the incorrect answers on the firearms forms. In a letter emailed to the Firearms Registry on 28 May 2023 requesting an internal review of the decision to refuse Mr Al-Aaraj a firearms licence, Mr Al-Aaraj gave some explanation. He stated that he obtained a firearms permit in order to do the firearms safety course. He said that the course supervisor told him that the issue of the permit "effectively allowed [him] to say that [his] licence has never been revoked" and that the issue if the permit "placed [him] in a fresh position" and that the answer to the question about whether he had previously had a firearms licence suspended or revoked was "no". In that letter Mr Al-Aaraj concedes that his answer was incorrect on the form, but said that he did not intend mislead and the error was "an honest mistake".
Mr Al-Aaraj said in the same letter that the 2012 firearms licence application that was refused was lodged without his knowledge. He denied asking his lawyer to lodge the application, given that it was pointless making the application given the ten years had not passed since the conviction. He also said that he did not instruct his lawyer to lodge a further firearms licence application in 2014.
Mr Al-Aaraj stated that he accepts that the answers provided on the 2014 form were incorrect.
Mr Al-Aaraj also stated in the letter that he had an "unblemished" record since the 2009 charges. He described himself as an "avid hunter" and that he has been stopped from doing his favourite hobby for 12 years.
Mr Laycock asked his client about his traffic record. Mr Al-Aaraj gave some explanations for some offences including that the speeding in a school zone by not more that 10 kilometres offence in 2022 was during the Covid pandemic and he did not know that the School Zone still applied.
Mr Al-Aaraj said that as part of operating a mechanic's business he was responsible for carrying out pink, blue and brown slip vehicle safety inspections.
Mr Al-Aaraj explained that he lived a simple lifestyle. He denied mixing with any undesirable characters and stated "I am too busy". He said he had matured since 2009.
In cross-examination, Ms Moses asked Mr Al-Aaraj about his arrest by Police on 13 February 2009. The report in the NSW Police Computerised Operational Policing System (COPS) stated that Mr Al-Aaraj was arrested for offering to supply the SKS rifle. When asked, Mr Al-Aaraj said that he remembered being arrested but he could not remember what it was for. He recalled the police attending at his house. He could not recall whether he had two mobile phones at the time or the phone numbers of those phones. When asked about the recordings of the intercepted phone calls played at the hearing, Mr Al-Aaraj said "Honestly, I zoned off, I just don't want to hear". He said he was young at the time and "it's something I don't want to talk about".
I issued a section 128 Certificate in respect to Mr Al-Aaraj's evidence about the coded conversations he is alleged to have engaged in. Ms Moses asked Mr Al-Aaraj about an intercepted phone call on 7 January 2009. Mr Al-Aaraj said that he did not remember what was said in any such conversation. Mr Al-Aaraj was referred to the excerpts played at hearing and the redacted transcript of those intercepted calls which was annexed to the statement of Detective Senior Constable Paul King, filed in this proceeding. Ms Moses asked detailed questions about what was said. Some examples were:

[25]

6 February 2009 intercepted call with Mr El-Azzi

Ms Moses asked Mr Al-Aaraj about the discussion about a car and that he had something "hectic". "Last night, um, Simon, Kevin and Simon, bro: it's a really nice one". She put to Mr Al-Aaraj that this was a reference to a SKS rifle. Mr Al-Aaraj said this was "all chatter talk, rubbish talk" and that he did not recall the conversation. He added, "I was young, I was stupid" and "[he] didn't mean it" and he "was young and [he] just wanted to just fit in with the crowd".
Ms Moses asked about the phrase "it holds about thirty" and suggested it was a reference to a magazine capacity for an SKS rifle. Mr Al-Aaraj said that he did not remember the conversation.
Ms Moses put to Mr Al-Aaraj that the words "it's automatic, um, air conditioning" was a reference to the fact that an SKS rifle is capable of automatic fire. Mr Al-Aaraj said that he did not remember and it was part of "rubbish talk".
Ms Moses put to Mr Al-Aaraj that a reference Mr Al-Aaraj selling the item for "around the twenty" was him telling Mr El-Azzi that the SKS rifle was available for sale for $20,000. Mr Al-Aaraj said he did not remember the conversation and repeated that it was "kid talk" as he was a 20 year old and it meant nothing and was "rubbish talk".

Ms Moses moved to a different topic and asked Mr Al-Aaraj about the charges for weapons offences. Mr Al-Aaraj said that the item identified as a taser was never a taser as it was never modified in that way.
Mr Al-Aaraj said that the ammunition that was the subject of the 2009 charge was ammunition he had found at another house laying around and he took it not knowing what it was and that he could get into trouble. He had a handgun licence and did not know that the ammunition was .45 calibre.
Ms Moses asked Mr Al-Aaraj about the answers he gave on the 2023 firearms application form about whether he had an application for a firearms licence refused or a licence suspended or revoked. He agreed that the answers were incorrect. He said that he just did not understand the question and that some of the questions asked referred to "in the last 10 years" and this made him think that it had been more than 10 years and he assumed he could put no as the answer. He said he was "not the smartest bloke in the world" and he assumed that after 10 years he would get his life back.
In respect of the 2014 licence application form where Mr Al-Aaraj answered no to whether he had been convicted of an offence involving firearms or weapons, Mr Al-Aaraj said he "just didn't understand the question. I ticked no thinking the ten year thing".
Ms Moses put to Mr Al-Aaraj that was the first time he had given that explanation. She took him to his letter emailed to the Firearms Registry on 28 May 2023 in which Mr Al-Aaraj requested an internal review of the decision under review. In that letter Mr Al-Aaraj's explanation was that the course supervisor at the firearms course had advised him that the permit issued to him on 1 March 2023 "effectively allowed me [him] to say that [his] licence had never been revoked" and that he was "effectively placed" in a "fresh position" and that he should answer no on the 2023 form to the question about any previous refusal or suspension or revocation of a firearms licence.
Mr Al-Aaraj said that he had the help of a friend to write the letter to the Firearms Registry. He said he "can't write that well" or express what he wanted to say. He said that the friend misinterpreted and wrote it differently. He said "I got the clearance" and "I thought I was starting afresh". He said he had he had told his friend about his misunderstanding about the ten years having passed (refer to but his friend just had not written it.
Ms Moses put to Mr Al-Aaraj that he had not addressed this in his affidavit. He said that if he did he would "dig a hole even deeper".
The Commissioner relied on a brief statement by Mr Alain Noujaim, the course supervisor who conducted the firearms course. In it Mr Noujaim denies giving the advice Mr Al-Aaraj said he did. Mr Al-Aaraj's evidence about that was that what occurred was a "misunderstanding". He said that his wife helped him complete the 2023 form and he understood "every second question" was about the last 10 years and he assumed the answer was a no. He added "I honestly did get confused".
Ms Moses suggested to Mr Al-Aaraj that this was the first time he had accepted that Mr Noujaim had not given that advice, as he had stood by his internal review request letter in his affidavit.
When asked about the 2014 firearms licence application form, Mr Al-Aaraj said that he did not submit the form, it was submitted by his solicitor. Mr Al-Aaraj agreed that he had signed the form. He said that his solicitor wanted to see how long the mandatory refusal period would last before he could reapply. Mr Al-Aaraj said he never knew that his solicitor had lodged the form. He denied instructing anyone to lodge the application.
Ms Moses took Mr Al-Aaraj to internal RMS Notes made on 8 August 2014 which indicated that Mr Al-Aaraj had called the Firearms Registry on that date in order to request firearms licence application forms be mailed to him. Mr Al-Aaraj said that he could not remember whether he had made such a phone call. He said that he did not receive any licence application forms. He maintained that the 2014 licence application form was "not done by me" and that it was "done by my solicitor".
Ms Moses suggested to Mr Al-Aaraj that he knew the answer in the 2014 form was incorrect as he had correctly ticked "yes" to the same question in a firearms licence application form he lodged in 2012.
In his request for internal review, Mr Al-Aaraj said that the 2012 licence application was "lodged without his knowledge". Mr Al-Aaraj said he did not remember lodging that licence application and that is why he said he was not aware of it.
Ms Moses took Mr Al-Aaraj to the internal RMS Notes which indicated that Mr Al-Aaraj had called the Firearms Registry on 25 September 2012 to ask for his old licence number in order to complete the application for a new licence. Mr Al-Aaraj said he did not recall these calls. Ms Moses also took Mr Al-Aaraj to an entry on the RMS notes that recorded that Mr Al-Aaraj contacted the Firearms Registry on 24 October 2012 to enquire about the progress of his licence application. Again, Mr Al-Aaraj said he did not remember any such phone call.
Ms Moses turned to the topic of Mr Al-Aaraj's traffic record. Mr Al-Aaraj said that he was "young" and "you're stupid". He said he had changed over the last 14 years. He had started a family and run a business.

[28]

Written statement

Mr King stated that he had been a police officer for 23 years. He explained that Mr Al-Aaraj was identified by Police as part of Strike Force Comrie which concerned the possession and supply of firearms and that Police conducted surveillance of Mr Al-Aaraj's mobile phone. As a result of intercepted phone calls, Police executed a search warrant at Mr Al-Aaraj's home on 13 February 2009. Mr King was one of the officers who arrested Mr Al-Aaraj and he prepared the Facts Sheet for court.
Mr King said that originally Mr Al-Aaraj was charged with sell prohibited firearm to a person unauthorised to possess it in relation to what Police alleged was offers by Mr Al-Aaraj to sell an SKS rifle to a person named Elias and another person named Chris El-Azzi.
Mr King stated that the Office of the Director of Public Prosecutions (DPP) requested additional charges be added, including in respect of what Police alleged was the sale of an AK 47 assault rifle by Mr Al-Aaraj to Mr El-Azzi.
Mr King said that in a separate criminal case, Mr Chris El-Azzi was ultimately convicted of two of three charges of sell prohibited firearm to a person unauthorised to possess it, which related to offers to sell to Mr Al-Aaraj, via a "coded conversation" on 7 January 2009 an AK47 rifle and an SKS rife. Mr King said this was the same intercepted phone call as referred to above. He said that initially Mr Al-Aaraj and Mr El-Azzi were to be tried as co-accused, but that the trials were separated.
Mr King set out the meaning Police attributed to the intercepted phone calls and why Police held that belief. In summary the Respondent alleges:

7 January 2009 call: Mr Al-Aaraj intended to source an AK 47 rifle and an SKS rifle offered to him by Mr El-Azzi. Mr King contacted a Mr Wayne Watson at Mazda Australia who advised that Mazda Australia does not recognise a RX3 with an "AK block" in it or an RX4 with a "SK" block or the type "S". Mazda Australia made enquiries with its parent company in Japan. Mazda has never used "AK" or "SK" to reference or identify any engine, block or rotor housing. He also relied on the opinion of Detective Senior Constable Anthony Fokes, an expert in conversation using codes and veiled speech in relation to firearms, who confirmed the use of such coded speech by criminals describing firearms called SK or SKS.
12 January 2009 call: Mr Al-Aaraj intended to source prohibited firearms from Mr El-Azzi when they became available and he tells Mr El-Azzi he has the finances to purchase them. Mr Al-Aaraj refers to a "nine cylinder" that he was going to look at, but it was sold. Police say that was a reference to a firearm that chambers 9mm ammunition. Mr King understood that a nine-cylinder car is "extremely uncommon" and few have ever been manufactured.
6 February 2009 call: Mr Al-Aaraj intended to sell an SKS rifle with a 30-round ammunition magazine for $20,000 to Mr El-Azzi. A reference to "Simon, Kevin, and Simon" is a reference to an SKS rifle and Mr King relies on the opinion of Detective Senior Constable Fokes about the use by criminals of the phrase Simon, Kevin and Simon to describe firearms called SK or SKS. Mr Al-Aaraj referred to the magazine capacity of the SKS rifle when he says "it holds about thirty". Mr Al-Aaraj indicated that the SKS rifle is capable of automatic fire when he stated "it's automatic, um, air conditioning, everything, bro." Mr King relied on the statement of Detective Senior Sergeant Kristina O'Hagan, a NSW Police Forensic Ballistics Investigator, that a thirty round magazine can be fitted to an SKS rifle and that an SKS rifle can be modified to be capable of automatic fire. Mr King said that the price Mr Al-Aaraj offers to sell the SKS rifle to Mr El-Azzi is $20,000 when he says "probably around the twenty".

Mr King said that both an SKS rifle and an AK 47 rifle are military grade rifles and prohibited firearms. He stated that he checked the records and at no time did Mr Al-Aaraj or Mr El-Azzi hold a licence for an SKS or AK 47 rifle.

[32]

For the Respondent

Ms Moses argued that Mr Al-Aaraj is not a fit and proper person nor is it in the public interest that he be granted a firearms licence. She relied on Mr Al-Aaraj's previous convictions for weapons offences and the ammunition charge. In respect of the ammunition found when Mr Al-Aaraj's home was searched, she said the ammunition was unsecured and Mr AL-Aaraj made no enquiries as to whether he could possess that ammunition in compliance with the regulations.
Ms Moses submitted that there was only one interpretation that could be given to the excerpts of the intercepted phone calls. She pointed out that Mr El-Azzi was subsequently convicted of two counts of offering to sell Mr Al-Aaraj an AK 47 and an SKS rifle on the basis of the same intercepted phone conversation on 7 January 2009 in evidence in this proceeding.
Ms Moses suggested that Mr Al-Aaraj's evidence was "at best evasive" and was "completely disingenuous and lacking in candour". She said that despite the issue of a section 128 certificate, Mr Al-Aaraj still refused to comment on the content of coded conversation put to him in detail, saying he had no recollection.
Ms Moses submitted that the Tribunal should find that Mr Al-Aaraj intended to source an AK 47 rifle and an SKS rifle offered to him by Mr El-Azzi on 7 and 12 January 2009. She also argued that the Tribunal should reach a factual finding that on 6 February 2009 Mr Al-Aaraj intended to sell an SKS rifle with a 30-round ammunition magazine for $20,000 to Mr El-Azzi.
Ms Moses turned to Mr Al-Aaraj's incorrect answer on the 2014 licence application and emphasised that an earlier application in 2012 he had answered the same question correctly. She said the suggestion that Mr Al-Aaraj was not involved in making and following up on this 2012 licence application was false and should be rejected and she relied on the RMS Notes referred to above. She also pointed out that Mr Al-Aaraj had been served with a Notice of Refusal on 7 November 2012, as recorded in the COPS entries.
Ms Moses submitted that at hearing Mr Al-Aaraj sought to provide a new explanation as to why he provided false information on the 2023 licence application form when in his written statement he said he had received incorrect advice from the course supervisor.
Ms Moses suggested that Mr Al-Aaraj's evidence could be described as "obfuscating at best" and that he had attempted to divert the blame onto others, that is, Mr Noujaim and also his own solicitors when in fact, according to the RMS Notes Mr Al-Aaraj was actively involved and participated in the making of the relevant licence applications.
Ms Moses submitted that Mr Al-Aaraj's traffic record consists of a "long list of non-compliance" with traffic laws. She argued that this was relevant to Mr Al-Aaraj's propensity to comply with the law.
Ms Moses submitted that Mr Al-Aaraj used coded language to disguise conversations about the procurement and sale of prohibited firearms. She said that conduct involving the dealing with prohibited firearms "strikes at the heart" of the firearms legislation. She said that Mr Al-Aaraj "lacked candour" with the Tribunal in his evidence about those matters.
Ms Moses argued that Mr Al-Aaraj could not be trusted to comply with the firearms legislation. He had engaged in veiled conversations in an attempt to disguise what he knew was non-compliance.
Ms Moses suggested that the character references Mr Al-Aaraj relied on were of no value. Two of the referees were not aware of the nature of Mr Al-Aaraj's criminal history and nature of the prohibited firearms charge. Their relationship was superficial in nature and the referees were entirely reliant on information provided by Mr Al-Aaraj. Ms Moses submitted that when certain assumptions were put the referees both disavowed their references.
Ms Moses said that other referees were not available for cross-examination and the references they provided should be given no weight. The said that the reference provided by Ms Mattar was speculative as the reference lacked detail about what Ms Mattar knew about Mr Al-Aaraj's criminal history. It is not clear what Ms Mattar meant when she said she believes that parts of the criminal history are "in dispute". She also refers to "complications in relation to [Mr Al-Aaraj's] legal representations" but there is no evidence or detail about that.
Ms Moses submitted that the Tribunal ought to look at the underlying conduct of Mr Al-Aaraj despite the fact that the sell prohibited firearm charge had been withdrawn, and that the Tribunal should reach its own factual findings that the conduct in fact occurred. Ms Moses argued that that Mr Al-Aaraj deliberately avoided answering questions by stating that he had no recollection.

[35]

Findings arising from intercepted phone calls

I gave careful consideration to each party's case about the intercepted phone calls. I can take into account material from criminal proceedings even though the offences charged have not been proven: Joseph v NSW Commissioner of Police [2017] NSWCA 31 at [62] referring to Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20].
There was no information before me as to why the sell prohibited firearms charges were withdrawn. I am entitled and duty bound as the Appeal Panel said in Mercer to take this material into account if it is relevant to the decision before me and the material is clearly relevant.
In determining how I should go about assessing this evidence I had regard to the discussion of the case law in Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 at [34]-[40] and [43]-[45], which can be summarised as follows. In administrative review proceedings neither party has an onus of proof. Rather, it is the Tribunal that must consider all relevant material. The Tribunal must base its findings of fact on logically probative material and not mere suspicion or speculation. However, the Tribunal can have regard to the gravity of any allegations and the consequences that may flow from making a finding or decision when assessing the evidence.
In making findings of fact about the intercepted phone calls, I have reached a level of reasonable satisfaction, taking into account the seriousness of the allegations and the consequences that flow from such a finding. It is a very serious finding to make that Mr Al-Aaraj engaged in the procurement and sale of prohibited firearms. While I am not bound to do so, I have had regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 as a guide.
The evidence before me has led me to a level of reasonable satisfaction that on 7 January 2009 Mr Al-Aaraj intended to source an AK 47 rifle and an SKS rifle from Mr El-Azzi. I accept that the intercepted conversation had this meaning. I also find and am reasonably satisfied that on 6 February 2009 Mr Al-Aaraj intended to sell an SKS rifle with a 30-round ammunition magazine for $20,000 to Mr El-Azzi and that the intercepted conversation had that meaning.
I reached a level of actual persuasion as to the meaning of the phone calls. I find no other interpretation could be given to the meaning of the intercepted calls. I found Mr Al-Aaraj's evidence that what he said in the calls was "rubbish talk" unconvincing. I also found Mr Al-Aaraj's explanation that he was young and that he was talking this way to fit in with the crowd unconvincing. Rather, I consider that Mr Al-Aaraj refused to offer an honest response about the meaning of the calls, despite the fact that a section 128 certificate was granted. I agree with the Respondent's submission that Mr Al-Aaraj avoided answering questions about the conversations.
I reject Mr Al-Aaraj's argument that the meaning of the intercepted call should have been independently verified by the Respondent. It was open to the Applicant to produce evidence from an alternate expert or indeed to provide another explanation for the references to things such as:

An RX3 with an "AK block" in it
An RX4 with a "SK" block or the type "S"
"Simon, Kevin, and Simon"

However, the Applicant failed to do so, despite having the opportunity.
I accept the evidence of Mr King that he contacted a representative of Mazda Australia and that that Mazda Australia does not recognise a RX3 with an "AK block" in it or an RX4 with a "SK" block or the type "S" and has never used "AK" or "SK" to reference or identify any engine, block or rotor housing.
I also accept the expert opinion of Detective Senior Constable Anthony Fokes, whose expertise was in coded conversations about firearms, and who held the opinion that a reference to "Simon, Kevin, and Simon" is a reference to a SKS firearm. Mr Fokes' opinion is not speculative but based on his specialised knowledge and expertise about such conversations and terms.
I also find it relevant and it is not in dispute that Mr El-Azzi was convicted following a trial by jury of offering to sell an AK 47 and SKS rifle to Mr Al-Aaraj in the same intercepted conversation identified in these proceedings that the two men had on 7 January 2009.
The following evidence derived from the Expert Certificates of Detective Senior Sergeant Kristina O'Hagan is uncontested and I accept that evidence and find that: 1. An SKS rifle is the firearm Simonov Karabina Simonova - SKS rifle. 2. An AK47 rifle is centre-fire self-loading rifle of a kind designed or adapted for military purposes and has self-loading and full automatic capabilities. It is a prohibited firearm in accordance with items 1 and 5 of Schedule 1 of the Firearms Act 1996 is a prohibited firearm. The reported rate of fire of an AK-47 type rifle in full automatic mode is 600 cartridges per minute. 3. An SKS rifle is centre-fire self-loading rifle of a kind designed or adapted for military purposes and in accordance with items 1 of Schedule 1 of the Firearms Act 1996 is a prohibited firearm. An SKS rifle can be modified so that it functions automatically and if this is done it is also a prohibited firearm under item 1 in Schedule 1 of the Firearms Act 1996.

[36]

Findings about the firearms licence applications

Mr Al-Aaraj accepted that he gave incorrect answers to the questions on the 2023 firearms licence application form about whether he had an application for a firearms licence refused or a licence suspended or revoked.
However, Mr Al-Aaraj's explanation for why incorrect answers were given shifted. In the request for internal review Mr Al-Aaraj claimed the firearms safety course instructor advised him incorrectly that having a firearms permit to do the course effectively placed him in a fresh position and he could answer no to the question about ever having his firearm licence suspended or revoked.
Faced with a statement obtained from the instructor, Mr Alain Noujaim, that he had not given that advice to Mr Al-Aaraj, Mr Al-Aaraj's explanation for the incorrect information changed in my assessment of the evidence. At hearing, Mr Al-Aaraj said that he had misunderstood Mr Noujaim. He now attributed the incorrect answers on the form to what he described as his misunderstanding of the questions on the form because he conflated references in other questions about the preceding ten year period which led him to assume he could answer no as ten years had passed.
I found Mr Al-Aaraj's explanations about the incorrect answers given on the 2023 form unsatisfactory. When the change in explanation was pointed out by Ms Moses, Mr Al-Aaraj proceeded to explain that a friend helped him to write the letter requesting the internal review and that friend had misinterpreted what he said and wrote the letter differently to what Mr Al-Aaraj wanted to say. The friend had not included Mr Al-Aaraj's explanation about his misunderstanding that because ten years had passed he thought he could answer no.
I again found this explanation unsatisfactory as it would have been open to Mr Al-Aaraj to correct the information in the letter before sending it to the Firearms Registry.
Mr Al-Aaraj agreed he had given an incorrect answer on the 2014 firearms licence application form when he answered no to the question about whether he had been convicted of an offence involving firearms or weapons. At hearing Mr Al-Aaraj said he did not understand the question, again believing the answer was no as ten years had passed.
I reject Mr Al-Aaraj's evidence that his solicitor submitted the form and that he did not know the solicitor did so. There is no evidence to support this. To the contrary, there is evidence that Mr Al-Aaraj was involved in the submission of the form. He signed the form and the contemporaneous evidence from the internal RMS Notes made on 8 August 2014 show Mr Al-Aaraj himself requested the form.
Ms Moses suggested to Mr Al-Aaraj that he knew the answer in the 2014 form was incorrect as he had correctly ticked "yes" to the same question in a firearms licence application form he lodged in 2012.
In his request for internal review, Mr Al-Aaraj said that the 2012 licence application was "lodged without his knowledge". Mr Al-Aaraj said he did not remember lodging that licence application and that is why he said he was not aware of it.
Ms Moses took Mr Al-Aaraj to the internal RMS Notes which indicated that Mr Al-Aaraj had called the Firearms Registry on 25 September 2012 to ask for his old licence number in order to complete the applications for a new licence. Mr Al-Aaraj said he did not recall these calls. Ms Moses also took Mr Al-Aaraj to an entry on the RMS notes that recorded that Mr Al-Aaraj contacted the Firearms Registry on 24 October 2012 to enquire about the progress of his licence application. Again, Mr Al-Aaraj said he did not remember any such phone call.
My assessment of Mr Al-Aaraj's evidence is that he sought to blame others for the errors in the forms. Mr Laycock argued that this constituted an honest and reasonable mistake of fact. However, the concept of honest and reasonable mistake of fact is a legal concept derived from the criminal law concerning strict liability offences. That issue aside, it cannot be said to be reasonable in this instance that Mr Al-Aaraj can be excused from providing correct information in the form by virtue of misunderstanding the question. It is incumbent upon him in completing the form to provide the correct information. I am satisfied that Mr Al-Aaraj either knowingly provided false information or was reckless as to whether or not the answers he provided in the 2014 and 2023 forms we in fact correct, despite his obligation to not provide information that he knows to be false or misleading (refer to section 70 of the Firearms Act 1996).

[38]

Assessment of the character evidence

I found the evidence of both Mr Azeez and Mr Azmi to be surprising in a number of respects. Both did not know Mr Al-Aaraj very well, their relationships with Mr Al-Aaraj largely built on Mr Al-Aaraj being their mechanic and the occasional drop ins to Mr Al-Aaraj's workplace or calls on the phone to check on his daughter's health.
In the face of the evidence about Mr Al-Aaraj's conduct, both seemed to not be able to recognise Mr Al-Aaraj might be capable of the conduct the subject of this Tribunal's factual findings. They seemed to merely accept that Mr Al-Aaraj is a "family man" and "a genuine nice guy". Despite being advised about the full extent of Mr Al-Aaraj's convictions and sentences imposed and also what the Respondent alleged to be the true meaning of the intercepted phone calls played in the hearing, both seemed wedded to what they believed about Mr Al-Aaraj.
When pressed further under cross-examination, Mr Azeez pointed out that the offences occurred in 2009. It was only when presented with the evidence about the incorrect answers on the firearms licence forms that his opinion changed. Mr Azeez said that if Mr Al-Aaraj had put false information on the licence application forms it would change his view about Mr Al-Aaraj's character. Mr Azeez said because there were two instances of false information he thought Mr Al-Aaraj had lied on the forms. If it had been just one time he would assume he made a mistake. In re-examination he added that if it was a genuine mistake then Mr Al-Aaraj "deserves a chance".
Mr Azmi admitted that he might have changed his mind about providing a character reference for Mr Al-Aaraj if he had known the content of the intercepted calls, but later said he did not know what the conversations were about or what Mr Al-Aaraj's intentions were. When taken to the incorrect answers on the licence application forms Mr Azmi said he did not know whether Mr Al-Aaraj made a mistake or was lying on the forms. If he gave false information deliberately Mr Azmi it would have affected his decision to provide a character reference. When Ms Moses confronted Mr Azmi with the suggestion that Mr Al-Aaraj had not been candid about his criminal history, the charges laid and his dealing with the Firearms Registry, Mr Azmi maintained that there may be an explanation and some of these things occurred in the past. Mr Azmi conceded that if he had known about Mr Al-Aaraj's past, including the seizure of ammunition it might have affected his decision to give a character reference.
I gave no weight to the other two character references as the Respondent did not have the opportunity to cross-examine the authors to test their views about Mr Al-Aaraj's character. The statements the authors made in those references could not further explained by the authors and there was no opportunity to explore in evidence what they knew about Mr Al-Aaraj including not only Mr Al-Aaraj's past offences but his "negative history" (refer to Sawires v Commissioner of Police [2010] NSWADT 4 at [53]).

[39]

Fit and proper person

The meaning of fit and proper person is not defined in the Firearms Act 1996. The expression "takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities": Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 at [36]. According to the High Court in Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127, the expression 'fit and proper person' gives a decision-maker a very wide discretion and it involves three things: "honesty, knowledge and ability" to execute the office or vocation (at [9]).
Whether or not an applicant for a licence is a 'fit and proper' person is to be considered in the statutory context of whether the person can be trusted to possess firearms without danger to public safety or the peace (section 11(3(a) of the Firearms Act 1996). The question of fitness and propriety must be considered in the context of the principles and objects of the Firearms Act 1996, which squarely rests on the need to ensure public safety (refer to section 3(1)(a) of the Firearms Act 1996 and Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22]).
Previous cases have addressed the question of how the Tribunal is to assess risk to public safety. In Ward v Commissioner of Police, New South Police Service [2000] NSWADT 28 Deputy President Hennessy said: The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.
In Webb v Commissioner of Police New South Wales Police [2004] NSWADT 110 Judicial Member Montgomery said: The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr Webb's licence is reinstated. In determining this issue it is my view that it is necessary to adopt a balanced view of risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration.
According to Martin v Commissioner of Police, New South Police Force [2017] NSWCATAD 97 at [64]-[66], the Tribunal should approach the question of risk in a "nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety".
Deputy President Hennessy addressed the comments she made in Ward in the case of AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5, stating the phrase "virtually no risk" "should not be understood as a judicial gloss" on the plain meaning of the statute and the decision-maker should apply the relevant test by "exercising a judgement based on all the evidence": [8] and [10].
I consider Mr Al-Aaraj is not a fit and proper person to be issued a firearms licence and I am not satisfied that he can be trusted to have possession of firearms without danger to public safety or the peace: refer to section 11(3)(a) of the Firearms Act 1996. In coming to that determination, I considered the following facts: 1. Mr Al-Aaraj was convicted of weapons offences in the District Court in 2011 arising from the 2009 possession of an extendable baton, taser device and handcuffs. The taser device was a prohibited weapon. 2. The 10 year period during which the Commissioner must refuse any firearms licence application in respect of Mr Al-Aaraj because of the convictions for weapons offences expired on 12 August 2021. 3. In 2009 Mr Al-Aaraj was found in possession of .45 calibre ammunition and this ammunition was for a firearm that Mr Al-Aaraj did not hold licence for. This ammunition was found unsecured at his home. 4. On 7 January 2009 Mr Al-Aaraj intended to source an AK 47 rifle and an SKS rifle from Mr El-Azzi and on 6 February 2009 Mr Al-Aaraj intended to sell an SKS rifle with a 30-round ammunition magazine for $20,000 to Mr El-Azzi. Both rifles are prohibited firearms. 5. Mr Al-Aaraj gave false answers on his 2014 and 2023 licence applications. 6. Mr Al-Aaraj has a lengthy traffic history.
I agree with the Respondent that the attempt by Mr Al-Aaraj to obtain and sell prohibited firearms in a covert manner by coded telephone conversations is a very serious matter. It is so serious that it cannot be overlooked and there is nothing in the factual circumstances of this matter that lead me to any other conclusion than Mr Al-Aaraj is not a fit and proper person. The character referees do not assist greatly in this regard as those referees, when confronted with the full gamut of Mr Al-Aaraj's conduct, unreasonably clung to a view that Mr Al-Aaraj was a "family man" and "nice guy" and I do not believe that the two witnesses were a good judge of character.
In addition, Mr Al-Aaraj's provision of incorrect information on this firearms application forms as recently as 2023 shows that he is not a fit and proper person to be granted a licence.

[40]

Public interest

The Respondent argued that Mr Al-Aaraj should not be granted a firearms licence because it would be contrary to the public interest: refer to section 11(7) of the Firearms Act 1996.
The public interest is a broad concept and the discretion to refuse to issue a firearms licence in subsection 11(7) of the Firearms Act 1996 operates to incorporate issues beyond character: Commissioner of Police v Toleafoa [1999] NSWCATAP 9 at [25]. Considerations can include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
I observe that there is a discretion in subsection 11(7) of the Firearms Act 1996: the Commissioner "may" refuse to issue a firearms licence is she considers to do so would be contrary to the public interest. The exercise of the discretion must be in such a way as to promote the principles and objects of the Firearms Act 1996, that is to ensure public safety.
Having made factual findings that Mr Al-Aaraj engaged in conversations for the purpose of sourcing and selling prohibited firearms, I am satisfied that, standing in the shoes of the Commissioner, the discretion to refuse Mr Al-Aaraj a firearms licence should be exercised as it would be contrary to the public interest for Mr Al-Aaraj to be issued with a licence.
The AK 47 and SKS rifles are military grade firearms and when in or modified to be in automatic mode can discharge a very large number of cartridges per minute. They are firearms that are prohibited from entering the community and it is of very serious concern that Mr Al-Aaraj was engaged in the procurement and sale of these types of firearms.
Of particular concern is Mr Al-Aaraj's false answers on the two firearms application forms, which goes to the issue of public confidence in the administration of the licensing system.
The public would be very concerned that a person who had attempted to source and sell prohibited firearms and who gave false information on applications for firearms licences would have access to firearms. There is no other conclusion to reach other than that a firearms licence application should be refused as to the issue of a licence to Mr Al-Aaraj would be contrary to the public interest.

At a glance

Court

Decision date

Source

Judgment (43 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (8)