Atoui v Commissioner of Police, NSW Police Force

Role of the Tribunal

1. These are not adversarial proceedings in which the Applicant carries an onus of proof. By making the application, the Applicant triggers a process of merits review by the Tribunal. He does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove her case. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities.
2. Section 75(1)(c) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act"). Section 63 of the ADR Act provides that in determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law.
3. The Tribunal makes its own decision in place of that of the Respondent, and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. In an application for review the tribunal is not restricted to a consideration of the material that was before the decision maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

Issues

1. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner's decision and, specifically, whether it is contrary to the public interest for the Applicant to hold a licence under the Act.

Applicable provisions in the Act

1. The underlying principles of the Act provided clear guidance as to how it is to be administered generally. 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, and (c) to facilitate a national approach to the control of firearms.
2. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter and the Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]: [W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...
3. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if she considers that issuing of the licence would be contrary to the public interest.

Public interest

1. As noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated, in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant 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 elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate 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."
2. The "public interest" allows issues going beyond the character of the Applicant to be considered. These may include concerns in relation to 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.
3. "Public interest" embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation 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 decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
4. In considering the public interest, regard must be had to the underlying principle of the Act. The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. The Tribunal must give proper, genuine, and realistic consideration to each of the relevant matters. A decision maker should not shy away from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph [22].
5. The public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements.
6. As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at paragraphs [24] to [25]: 24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d). 25. In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. ...
7. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP 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. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].
8. It is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

Material before the Tribunal

1. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act. This material includes a number of records held in the Respondent's electronic database ("COPs"). These records include information related to several events that involved the Applicant. A facts sheet relating to charges brought against the Applicant is included as is a copy of the Applicant's traffic record.
2. The Respondent's solicitors also provided written and oral submissions.
3. The Applicant relies on his own evidence, evidence of Ms Fatmi Atoui, and a report from a clinical psychologist, Mr Sam Borenstein. Character references were provided by Mohmmed Naji, George Markos, Hicham Hammoud, Segouros Papadatos, Moufid Mehdi and Hisham Bachir. None of the character referees were required to attend the hearing. The Applicant and Ms Atoui attended the hearing and were cross-examined. The Applicant's solicitors also provided written and oral submissions.

The Respondent's case

1. Ms Chenhall, on behalf of the Respondent, relied on the material contained in the brief of evidence filed and served as provided for by section 58 of the ADR Act. That material included copies of the COPs entries in respect of several incidents that involved or otherwise concerned the Applicant. The Respondent also relies on the Applicant's driving record.

Driving offences

1. It is not in dispute that in 1988, the Applicant was convicted of driving in a dangerous manner. He was fined $1,500 and was disqualified from driving for five years. In 1991, he was convicted of driving whilst disqualified.
2. The Respondent contends that the Applicant's dangerous driving and subsequent driving whilst disqualified demonstrates a disregard for public safety.

The August 2011 incident

1. In August 2011 the Applicant was charged in relation to an incident involving violence. It was alleged that the Applicant and his then neighbour had been involved in an ongoing neighbourhood dispute. The event report related to the incident indicates that:

• In the evening in question, the neighbour returned home from work to discover that his front door had been damaged.
• The neighbour asked the Applicant who had kicked his door in. The Applicant said he did not know.
• The Applicant closed the gap between himself and the neighbour and using two open palms, he pushed the Applicant away in the chest. The neighbour pushed back in self-defence.
• An altercation ensued whereby the neighbour was hit in the head, although he did not know by whom as members of the Applicant's family had become involved.
• The neighbour retreated to his home when he saw the Applicant come towards the house with a 10cm flick knife. The Applicant said to the neighbour, 'Come outside I am going to kill you'.
• The Applicant then walked into the house, grabbed the neighbour and pulled him close. The Applicant held the flick knife to the neighbour's throat, and then bit him.
• The Applicant then went back outside and said 'come outside now'.
• The altercation continued until Police arrived on the scene.
• Police observed small amounts of blood from the road to the neighbour's house and inside the house.
• Neither the Applicant nor any of the witnesses wanted to provide a version of the event to the Police.
• The neighbour provided a statement to Police. Photographs allegedly show a bite mark on the neighbour's forearm.

1. Following this incident, the Applicant was charged with:

• armed with intent to commit an indictable offence;
• assault occasioning actual bodily harm; and
• enter building/land with intent to commit an indictable offence.

1. The Applicant was not convicted of any of the offences as there was no evidence offered.

The July 2013 incident

1. In July 2013, the same neighbour who made allegations in August 2011 named the Applicant as the person of interest in a report made to Police that the neighbour had heard gunshots fired at his house. The neighbour also alleged that gunshots had been fired at his car. The neighbour allege that he thought the Applicant may have been involved due to a road rage incident the week prior. There is no evidence that the Applicant was in any way involved in this incident.

The April 2016 incident

1. In April 2016, the Applicant was reported by Ambulance officers to be involved in an altercation with another family member. While the Ambulance officers did not witness the altercation, they reported to Police that the Applicant and family member had become involved in a heated argument.
2. The Applicant's evidence is that there was in fact no altercation but rather it was an accidental clash of heads between the Applicant and his brother-in-law.
3. The Respondent accepts that the Applicant has not been convicted of any offences in relation to any of these incidents.
4. Nevertheless, the Respondent submits that it is well established that it is an applicant's conduct, not convictions that is of concern to the Tribunal. It is irrelevant that charges have not been established to the criminal standard.
5. The Respondent further submits that the alleged conduct raises concerns about the Applicant's character and respect for the law. These concerns are important for the Tribunal to consider in determining whether it is in the public interest for the Applicant to hold a firearms licence.
6. The Respondent acknowledges that the Applicant's evidence, and that of Ms Atoui, contradict the Police event reports. However, it is submitted that the Tribunal should place little, if any, weight on the Applicant's versions of the events. It is submitted that because of the time that has passed since the events, the Applicant's and Mrs Atoui's recollection of the events cannot be treated as reliable.
7. The Respondent also notes that they were unwilling to provide their versions of events at the time of the incidents. Their versions are now provided for the purpose of advancing the Applicant's interest in obtaining a firearms licence.
8. The Respondent further submits that the Tribunal should place little weight on the references because of the similarity between the content of the references. The Respondent contends that the most important part of the references has not been authored by five different individuals but rather by one individual who has given them out to five persons for their review and signature. In any event, the references go to the issue of fitness and propriety and that issue is not pressed.
9. The respondent raised no issues with the psychological report provided by of Dr Borenstein.
10. In the circumstances the Respondent contends that it could not be said there is virtually no risk to public safety if the application were to be granted. It is not in the public interest for the Applicant to be given a firearms licence and therefore the correct and preferable decision is for the application to be refused.
11. The Respondent also submits that the Applicant does not have evidence of a genuine reason to use and possess firearms.

The Applicant's case

1. As noted, both the Applicant and Ms Atoui attended the hearing and gave evidence. The evidence addresses each of the issues raised by the Respondent.

Driving offences

1. The Applicant does not dispute his traffic record. He accepts that, like the firearms legislation, the primary purpose of the road traffic legislation is to ensure community safety amongst road users. However, he submits that the offences are so dated that little to no weight should be given to them.
2. He also notes that:

• the Roads and Maritime Services have not refused to issue him with a drivers licence based on the fact that he is not a fit and proper person to hold a drivers licence.
• he drives a motor vehicle on a daily basis.
• if granted a firearms licence, he would use a firearm on an infrequent basis.
• he can be trusted with the risks associated with handling a firearm on an infrequent basis.

Incidents involving violence

1. The Applicant challenges the accuracy of the versions contained in the records relied upon by the Respondent. He requested that the Respondent make the following persons available for cross examination: 1. Hassan Youssef; 2. Kassam Jaafar; 3. Sargent Thomas Charles Murdoch; 4. Detective Benjamin Short; and 5. Senior Constable Joshua Brett Dierikx.
2. Notwithstanding that request, none of the requested witnesses were made available.
3. In contrast to the Respondent's position, the Applicant and Ms Atoui both provided sworn affidavits and attended the hearing. They were available for cross examination and their evidence was tested.
4. The Applicant accepts that if the allegations contained in the Police reports were proven facts, the Respondent's concerns would be soundly based. However, the Applicant disputes the asserted facts, and he has deposed to the facts pertaining to each event.
5. In the circumstances, the Applicant contends that it should not be assumed that the version of event contained in the Police reports is correct. He submits that his evidence is to be preferred to the information contained in the events records where the authors of the records and the persons making the allegations against the Applicant have not been made available.

The August 2011 incident

1. The Applicant does not dispute that he was charged in relation to the August 2011 incident. However he was not convicted.
2. He stated that the neighbour who made the allegations against him was Mr Hassan Youssef - the Applicant's second cousin. He denied that there was an ongoing dispute with Mr Youssef and stated that he had only been Mr Youssef's neighbour for about a week. He stated that at the time Mr Youssef was a troubled person and that Mr Youssef had confronted the Applicant after he had discovered that the front door to his home had been damaged. The Applicant stated that he had defended himself, but he denied that he threatened Mr Youssef. The Applicant stated that the altercation was in fact between Mr Youssef and Mr Youssef's brother.
3. The Applicant stated that his legal advisor advised him to remain silent in regard to the incident, which he did. He further stated that Mr Youssef had provided a false account of what had occurred, and that Mr Youssef's version of events should not be accepted.

The April 2016 incident

1. The Applicant stated that the person who was injured on that occasion was his brother-in-law, Mr Kassam Jaafar. They were at the property of his late father-in-law who had passed away that morning. At the time, the Applicant and various family members were distressed and surrounding the body of his late father-in-law. The Applicant stated: Kassam arrived at the property whilst we were all surrounding his father's body. Kassam was highly emotional and ran towards his father's body. As Kassam was running towards his father and dropped to his father's body, he clashed heads with me. The clash was accidental. There was no altercation between Kassam and I. Everyone was extremely emotional at the time, and I believe that the incident was misconceived by the paramedics.
2. Ms Atoui's evidence supports that of the Applicant in regard to both the August 2011 incident and the April 2016 incident.

Report of Sam Borenstein

1. Mr Borenstein is a clinical psychologist. He interviewed and assessed the Applicant for the purpose of preparing psychological report in relation to the firearms licence application. He concluded: There are no psychological impediments to Mr Atoui holding a Firearms Licence. Mr Atoui is motivated to hold a Firearms Licence to control pests and vermin and he intends to purchase a rural property. Mr Atoui's wife and son have also applied for Firearms Licences at the same time as Mr Atoui, and both were granted licences. In terms of public safety, it is my opinion there is virtually no risk of Atoui holding a Firearms Licence.
2. As noted, the Respondent did not challenge Mr Borenstein's report.

Genuine need for a firearm

1. The Respondent has asserted that the Applicant has not established a genuine need for firearms. The Applicant and Ms Atoui both gave evidence of their intention to purchase a rural property but that they had not yet achieved that goal. The application for a firearms licence was made in anticipation of their intended move to the country. Ms Atoui and their son have both been granted firearms licences.
2. The Applicant provided evidence that he was a member of the Sporting Shooters' Association of Australia ("SSAA") for target shooting and hunting. He stated that he requires a firearms licence to engage in target shooting, recreational shooting, and hunting.
3. The certificate that he provided from the SSAA indicates that his SSAA membership was due to expire on 31 March 2023.
4. In regard to the Respondent's case, the Applicant submits that the Respondent's position is based on the presumption that the Applicant's evidence is fabricated and/or self-serving because it does not accord with untested hearsay/opinion/conclusions contained in Police reports and other information.
5. He contends that he is a fit and proper person to hold a firearms licence and that it is not contrary to the public interest for him to do so. That being the case, he submits that the licence application should be granted.

Consideration

1. This is a matter in which the Respondent's position is largely based on untested allegations in regard to the Applicant.
2. There is no doubt about the Applicant's driving record. It is not in dispute that in 1988 he was convicted of driving in a dangerous manner. He was fined $1,500 and was disqualified from driving for five years. It is also not in dispute that in 1991, he was convicted of driving whilst disqualified.
3. I agree with the Respondent that this conduct demonstrated a disregard for public safety. However, given the time that has passed since those convictions and that fact that the Applicant was subsequently granted a firearms licence, I give no weight to those convictions.
4. The main area of concern is the Applicant's alleged conduct in regard to the August 2011 incident and the April 2016 incident. It is not in dispute that the Applicant was charged in relation to the August 2011 incident. It is also not in dispute that the Applicant was not convicted on those charges.
5. The Respondent has provided copies of the Police reports in relation to the August 2011 incident and the April 2016 incident. The Applicant has correctly conceded that if the allegations contained in those reports were proven facts, the Respondent's concerns would be soundly based. However, I agree with the Applicant that it should not be assumed that the version of event contained in the reports is correct.
6. The Respondent has not produced any witnesses to allow the allegations contained in the Police reports to be tested. This remained the case despite the requests from the Applicant for witnesses to attend.
7. In contrast, the Applicant and Ms Atoui both gave evidence in relation to the two incidents and were cross-examined. In the circumstances I agree with the Applicant that his evidence is to be preferred to the information contained in Police reports where the authors of the records and the persons making the allegations against the Applicant have not been made available.
8. I accept the Applicant's and Ms Atoui's evidence where it contradicts the versions contained in the Police reports.
9. In any event, given the time that has passed since the events and the fact that the Applicant has not come to the attention of Police since those incidents, it is my view that little, if any weight should be given to them for the purposes of these proceedings.
10. I note that the Respondent has criticised the Applicant for not providing a statement at the time of the incidents. The Applicant gave evidence that he acted on legal advice to remain silent. In the circumstances, no criticism can be directed towards him in that regard.
11. I also note the opinion of Mr Borenstein that there are no psychological impediments to the Applicant holding a Firearms Licence.
12. In regard to the Applicant's references, I note that the authors all speak highly of the Applicant, and they paint a different picture of the Applicant to that presented by the Respondent. However, the Applicant's fitness and propriety is not pressed in these proceedings.
13. The question to be decided is whether it is contrary to the public interest for the Applicant to hold a firearms licence. On the evidence before me I am satisfied that there is virtually no risk to public safety should the Applicant be issued with a firearm licence. That being the case, it is my view that the correct and preferable decision is to set aside the decision under review. In its place the decision should be made that the licence application is granted.
14. The Applicant has nominated his genuine reason for a firearms licence as sport/target shooting and recreational hunting/vermin control. He indicated his intention to purchase rural land and he also provided evidence of his SSAA membership, but it is not apparent whether that membership is current. The Applicant would need to provide the Respondent with relevant documentation to show his current circumstances to substantiate that he has a genuine reason for possessing or using firearms before the licence could be issued.

Orders

1. The decision under review is set aside.
2. The application for a category AB firearms licence is granted on condition that the Applicant provides the Respondent with evidence to substantiate that he has a genuine reason for possessing or using firearms.

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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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2023