Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Judgment (7 paragraphs)
[1]
Reasons for decision
The applicant, Mr Mark Bassal (also known as Mohammed Bassal) applied to this tribunal on 21 February 2017 for review of a decision of the respondent's delegate on internal review dated 25 January 2017 affirming the revocation of the applicant's firearms licence. The respondent Commissioner exercised his power under s 24(2)(d) of the Firearms Act 1996, which confers a discretion on the respondent to revoke a firearms licence issued under the Firearms Act in a range of circumstances.
Although the applicant challenged the weight and accuracy of some of the respondent's evidence, as is explained below, the central facts of the case are not disputed. The applicant had previously held a category AB licence issued on 27 April 2007 for recreational hunting and vermin control. On 28 April 2011, police attended the applicant's residence and inspected his safe keeping of his firearms and ammunition. The safe storage was passed (exhibit R1, p 23).
On 31 May 2012, police undertook an unannounced inspection and found that the applicant had not stored all his firearms in accordance with the Act. According to the police fact sheet (exhibit R1, p 39), he told police that he had purchased a Tikka lever action rifle the previous week and had recently oiled it and placed it under his sofa. He produced an unloaded Tikka lever action from under the sofa cushions and handed it to police. The officers noted that it appeared to have been recently oiled.
The applicant then opened the top drawer of his bedside table and removed 30 rounds of 30/30 ammunition that were not secured. He reached into the pocket of a jacket hanging next to his ammunition safe and removed a magazine containing four .357 Winchester cartridges. Four other firearms were in a safe, and the applicant's other ammunition was in a separate safe. All the firearms were licensed and registered. The police impounded them all and suspended Mr Bassal's licence.
On 14 September 2012, the applicant was found guilty of a safe-keeping offence based on the inspection described above, to which he pleaded guilty. The court did not proceed to a conviction but discharged the applicant on condition that he enter into a good behaviour bond for 12 months, pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999.
The applicant on 31 January 2014 applied for a category AB licence. The application was refused on the ground that the applicant was still subject to a good behaviour bond and that it was not in the public interest for him to hold a licence.
Subsequently, on 4 April 2014, the applicant's license was recommended for issue and was made subject to a special condition prohibiting the possession or storage of firearms in places where the applicant's brother Mazam Bassal (also known as Michael Bassal) frequented or resided. That condition was imposed because of a concern that the applicant's brother was involved with the Rebels Outlaw Motorcycle Gang (OMCG).
The applicant and Mazam Bassal were in business together and had engaged in some dealings with a concern named Inline Business Signage, of Ingleburn, New South Wales. On 7 March 2016, Mazam (Michael) attended at Inline's premises with a view to recovering an amount of money that they believed was owed to them. An altercation ensued between Mazam and an employee of Inline, Wayne Williams. Williams produced a semi-automatic rifle and fired it in the general direction of Mazam, who then left the scene.
Some time later, the applicant and his brothers Mazam and Terry, together with another associate, Sinan Ergun, attended at Inline's premises. It appears that Williams then opened fire at the three Bassal brothers, killing Mazam and wounding Terry and the applicant, who were treated for gunshot wounds at Liverpool Hospital. After police established a perimeter around the premises, Williams turned the weapon on himself and committed suicide with one shot to the head (exhibit R1, pp 7-8).
Two days later, police attended at the applicant's home address, where he was served with a notice of suspension of his licence. He surrendered his licence, firearms and ammunition. Police impounded five long arms: a shotgun, a Remington rifle, two Marlin rifles and a Tikka Lite Rifle, serial No. 776129. His licence was revoked on 11 August 2016, and the revocation was affirmed following an internal review on 25 January 2017 (exhibit R1, p 72). That is the decision under review in these proceedings.
[2]
Applicable legislation
Section 24 of the Firearms Act deals with licence revocation:
24 Revocation of licence
(cf APMC 6, 1989 Act s 36, 1990 Reg cl 27)
(1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.
(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if:
(a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or
(b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997 - the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act.
(2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or
(d) for any other reason prescribed by the regulations.
(2A) If the Commissioner revokes a licence because the licence holder would be refused a licence on the grounds referred to in section 11 (5A), the Commissioner is not, under this or any other Act or law, required to give any reasons for revoking the licence on those grounds.
(3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it.
(4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice.
(5) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.
[3]
The evidence
The applicant did not file a statement and did not give evidence at the hearing, on the ground that he is a witness in a forthcoming District Court trial of certain other persons on charges that include attempted murder. Nor did he tender any documentary evidence, but relied on the material tendered by the respondent. He also cross-examined the respondent's witness.
The respondent relied on the s 58 documents (exhibit R1), as well as certain other documentary material and two confidential exhibits, CR 4 and CR 5.
The respondent also called Senior Constable Luke Hawes, who appeared via an audio-visual link with Tamworth police station. He adopted his statement dated 3 June 2017 (exhibit R2) in which he stated inter alia that on 5 March 2011 he was performing uniformed Highway Patrol duties in the Scone area. At about 11.30 he was conducting stationary breath testing duties together with another officer, and at about that time stopped a blue Harley-Davidson motorcycle bearing New South Wales registration plates 2PHAT. He also observed that the rider was wearing a black leather vest with a small Rebels OMCG patch on the upper left front side.
He spoke to the rider, Mark Bassal (the applicant), who produced a current New South Wales rider licence, No. 13289754. The photograph on the licence appeared to be that of the rider. He breath tested the rider, obtaining a negative result, and conducted a licence check that produced no adverse information. He also checked the registration of the motorcycle, 2PHAT, which proved to be registered in the name of Mark Bassal. In oral evidence he added that there was known to be a group of Rebels in the Scone area at the time. The applicant was in company of only one other motorcyclist, who the witness thought was not wearing any Rebel identification.
Cross-examined on the applicant's behalf by Mr Chapman, the witness acknowledged that he was giving evidence six years after the event and that in the course of his Highway Patrol duties he stops a large number of motor vehicles. He said he had written the details on the tasking sheet at the end of his shift, then corrected himself to say that he had completed it in the course of the shift, but filed it at the end of the shift.
The witness agreed that the number plate in question was memorable but it was his practice to check a driver's licence at the time of a traffic stop and he had done so at the time. While acknowledging that there were several Bassals, he was sure it was Mark, not Mazan, as the record matched the photograph on the licence. He was not simply assuming that the registered owner of the motorcycle was also the rider at the time.
[4]
Applicant's submissions
The applicant relied on some written submissions filed on 5 May 2017 and prepared by Mr WP Calokerinos of counsel. They stated inter alia that the two material matters that the respondent regarded as significant were the applicant's breach of the safe storage provisions, which resulted in a 12 month good behaviour bond, and the fact that he had accompanied his brothers to a business in Ingleburn named Inline National Signage on 7 March 2016, which led to the applicant and his two brothers being shot, one fatally.
The applicant challenged the respondent's decision on the ground that he was authorized to hold a firearms licence for seven years over two periods and his only offence was the storage breach that was dismissed pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. Subsequently, the Firearms Registry approved a 2014 application and re-issued a licence to the applicant on completion of his 12-month good behaviour bond. There was no suggestion that the applicant had misused firearms or breached firearms legislation since 2012.
In the Inline incident, the applicant was a victim, along with his two brothers, at the hands of a person using a firearm. There was no suggestion that the applicant deliberately or recklessly engaged in any conduct that would be a threat to the public.
Aged 35, he has one conviction from 2009 for a low range PCA. He was previously authorized to possess and use category AB firearms by way of a licence effective from 27 April 2007. Police had inspected and approved his firearms safe-keeping arrangements on 28 April 2011. His licence was suspended on 31 May 2012 because of the failed safe storage inspection. He had reported to police two separate incidents in which he had received obscene or threatening text or SMS messages.
On 23 December 2013 [scil. 2014], the applicant's reapplication for a category AB licence, lodged on 3 January 2014, was refused on the ground that he was subject to a good behaviour bond for a prescribed offence, and that it was not in the public interest for him to hold a licence. On 12 June 2014, however, he was issued with a category AB licence to expire on 31 July 2019.
There was no suggestion that the applicant or his brothers had been in possession of any prohibited weapon or firearms during the Inline incident. His licence was suspended on 9 March 2016 and revoked on 11 August 2016. It was submitted that his antecedents gave rise to "virtually no risk" to the public, as contemplated in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28]. Further, "probative evidence will be adduced during the NCAT proceedings that support the contention that the Applicant and his present circumstances represent 'virtually no risk' to the Public". He has a long history of dealing with firearms safely and knows how to manage them. Where he fell short was on 31 May 2012 with his failed safe storage inspection. He had learned from that incident and there was no evidence of a repeat offence. He is not currently subject to a good behaviour bond and apart from the 2009 low range PCA matter, he has an unblemished record.
[5]
Confidential evidence
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[6]
Consideration
The tribunal has jurisdiction to review the respondent's decision pursuant to s 75(1)(c) of the Firearms Act and s 30 of the CAT Act. Under s 63 of the ADR Act, the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357. In such proceedings there is no onus of proof on either party and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and the Evidence Act 1995 do not apply: Bronze Wing International Pty limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. These are not adversarial proceedings, but a process of merits review in which the applicant does not assume the responsibility of having to prove a case, nor does he or she cause an administrator to have to prove a case.
The considerations relevant to the tribunal's task are to be identified primarily by reference to the Act: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, [73]. Clear guidance as to how the Firearms Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is a "privilege that is conditional on the overriding need to ensure public safety". Consistently with that approach, s 24, taken with cl 19 (now cl 20) of the regulations, provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
In O'Sullivan v Farrer (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported 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 legislation might require. In the present case the parties agreed that a useful summary of the relevant case law on the public interest was to be found in Martin v Commissioner of Police, New South Wales Police Force [2010] NSWADT 276, [69] - [74]:
69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681:
"The purpose of the reference to 'public interest is to ensure that private interests are not 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."
70 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at paragraph [25], the Appeal Panel said that the 'public interest' "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".
71 There is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions and I agree that it is the correct approach to be taken in this matter.
72 In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy president Hennessy stated at paragraph [25] :
25 As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. ...
73 A firearm licence is a privilege and not a right. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at paragraph [25].
74 The underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk".
[7]
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
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: 14 September 2017
Parties
Applicant/Plaintiff:
Bassal
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
Clause 19 of the Firearms Regulation 2006 (since repealed and replaced in the same terms by cl 20 of the 2017 regulation) provided that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
The issue in the present case is thus whether it is not in the public interest for the applicant to continue to hold a firearms licence.
If he were to be making an initial firearm licence application, there would be no matter on any application that would have the effect of preventing him from being issued with a licence. The only true matter of concern was the 2012 incident and the failed safe storage inspection. The authorities showed that in the context of firearm use and possession, the public interest is inextricably linked to public safety.
The applicant acknowledged that his failure to ensure safe storage constituted a serious breach which undermined the broader public safety objectives of the legislation. In his letter to the respondent dated 23 December 2013, he had stated that "I totally understand the severity of the offence…. I have had firearms checks by the police and I have never had a problem before this offence…. I have learned a very valuable lesson…. I sincerely apologise for this offence" and declared that "I will ALWAYS adhere to all laws and regulations".
He therefore does not deny doing the wrong thing in 2012. That said, however, he had learned from that mistake and there was no evidence of any other breaches. Indeed, the Firearms Registry in 2014 did reinstate his licence.
At the hearing Mr Chapman reiterated those points and emphasized that the applicant should not be denied a licence on the basis of the tragic 2016 event. If that event had not involved a gun, there would be no problem with his being granted a licence. It was the decisive factor, but he was not at fault in the matter. While he had not reported the earlier shooting incident to the police, if he had been careless or inclined to take risks, he could have returned home and obtained a firearm, but did not do so. The Commissioner's delegate had been too influenced by the Inline incident.
Neither he nor either of his brothers had a firearm or any other kind of weapon in his possession at the time, nor had they attempted to obtain one. They were attacked, and the applicant's only concern was to aid his brother. His attendance at the scene should not be treated as an aggravating factor given the absence of any context of violence on his part. There was no evidence of the use of a firearm by him such as to create a risk to the public.
As regards the safe storage matter, the rifle on the sofa was not loaded and the applicant's other four firearms were stored in the approved safe. There had been no brandishing, no consumption of alcohol and no-one else had been in the house at the time. He had explained in his letter of 23 December 2013 (exhibit R1, p 50) that he had been oiling a new rifle, and the officer to whom the applicant produced it noted that it appeared to have been recently oiled. The applicant accepted his wrongdoing in the matter and had pleaded guilty to the charge. There was no risk to the public as he was alone in the house at the time.
S/Const Hawes' recollection of the traffic stop was poor. He had corrected himself about the nature and number of report forms involved. He did not accept that he had returned to his car and, having entered the number 2PHAT, thereby bringing up the applicant's name, had assumed that he was the rider. But it could have been his brother Mazam (Michael) who was riding. Consequently there was no evidence that the applicant had any association with the Rebels OMCG and he presented no risk to public safety on that account.
In his reply, Mr Chapman submitted that Mr Bassal's conduct in connection with the Inline incident had been a knee-jerk reaction to the threat made to his brother. If he had had any proclivity towards gun violence, he had the opportunity to engage in it, but did not take it. As regards the safe storage breach, it was significant that the rifle was not, for example, in an unlocked car in the view of the public but was in a secure environment that presented no threat to safety. He had not given evidence in these proceedings because, as previously explained, he was a witness in a forthcoming attempted murder trial. S/Const Hawes' evidence was unhelpful because the rider of the motorcycle he stopped might not have been the applicant. He accepted that he had keyed in 2PHAT, which brought up details of the registered owner, but he could have mistaken the name and the picture on the rider's licence. He had unreasonably excluded that possibility.
In Toleafoa the Appeal Panel also stated that "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" (at [25]). That proposition is apposite in the present case, as the respondent does not seek to support the decision to revoke on character or "fit and proper person" grounds.
Similarly, the Appeal Panel explained in Constantin v Commissioner of Police, New South Wales Police Force (GD) [2013] NSWADTAP 16, [33] that "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system".
In the present case, the first fact relied on by the respondent in relation to the public interest is the safe storage contravention and the circumstances surrounding it. The respondent acknowledges that the applicant had no record of firearms misuse in the seven years during which he held a licence, but that his firearms record was marred by the incident. The respondent also contended that the applicant had proffered an explanation that was untrue - that he had purchased the rifle a few days before and the person at the gun shop advised him to oil it and wait for it to dry before returning it to the safe (exhibit R1, p 50).
The respondent argued that the recorded serial numbers in exhibits R3 and R4 showed that he had in fact purchased it years earlier. On the other hand, the registration certificate (part exhibit R3) described the Tikka Lite Rifle as having a bolt action, whereas the inspecting police described it as a lever action. It is not possible to mistake the one for the other in broad daylight. Further, the fact sheet noted that the rifle appeared to have been recently oiled, as the applicant had claimed. In the circumstances I do not think an adverse finding on that point is warranted. In any event, it would have no effect on his liability for the contravention, as he should have secured the rifle, new or not, before leaving the house.
Other circumstances relevant to the gravity of the violation put forward by the applicant are that the (unloaded) rifle and ammunition were not in public view but were concealed, and thus partly secured, in a locked house of which the applicant was the only occupant. He had voluntarily directed police to the rifle under the sofa cushions and had had himself produced the 30/30 and .357 ammunition (though presumably in response to police questions). He had expressed unreserved contrition for the offence and a resolution not to offend against the legislation again.
The fact that the magistrate dismissed the charge, subject to a bond under s10, and that the Firearms Registry had issued a new licence to the applicant after his bond had expired indicate that the offence was regarded as lying at the lower end of the scale of seriousness. I therefore find that while the safe storage infringement constitutes a blemish on the applicant's record, it does not constitute a major objection to his holding a licence.
The next concern arose from the April 2012 incident in which the applicant reported some threatening and obscene text messages he had received to Macquarie Fields police. The officers advised him to contact them again should any further messages be received, but he declined to do so, stating that he would take the matter into his own hands and would deal with it (exhibit R1, p 23).
The respondent submitted that his attitude "resonated" with his approach to the Inline dispute, which had led to tragic consequences. While his statements that he would take the matter into his own hands and would "deal with it" have an ominous ring, they do not necessarily prefigure acts or threats of violence. They could have been mere braggadocio or they could simply mean that he was going to give Williams a piece of his mind. Nevertheless, they do constitute a piece of the mosaic.
Plainly, a major ground for licence revocation in the present case is the shooting at Inline Business Signage in March 2016. The respondent submitted that following the initial shooting by Williams at Mazam (Michael) Bassal, a person would normally call the police to deal with the unlawful shooting. Instead, the applicant, along with his brothers and Ergun, although aware of the earlier shooting, descended on the premises as a group. While there was no evidence that the applicant or the others attended Inline with any kind of weapon, it was plain that the applicant went there in company in order to confront Williams. "When a person discharges a firearm at Mazam Bassal, the return of Mazam Bassal clearly suggests that the response was to deal with this incident by violence", the respondent submitted.
That approach suggested, the respondent argued, that the applicant was prepared to address serious acts of violence without reporting them to the police, but instead attending the site in company. It would not be in the public interest for such a person to have access to firearms that could conceivably be used should the applicant be faced with similar circumstances, Mr Zoppo submitted.
Mr Chapman pointed out that the applicant could easily have collected one of his firearms before proceeding to the scene, but did not do so. Nor were any of the others armed in any way. All were victims, not perpetrators, he said.
Nevertheless, the applicant's approach to the matter was heavy-handed and clearly confrontational. Given the earlier shooting, there was an obvious risk that the dispute could escalate and that Williams could once again use a firearm in circumstances where injury or death was a serious possibility. I find that the applicant's demonstrated propensity for confrontational self-help in potentially explosive situations creates a risk to public safety and adds significant weight to the proposition that it is not in the public interest for him to possess firearms.
A further concern relied on by the respondent was the applicant's apparent association with the Rebels OMCG or with members of that organization. On 5 March 2011, the applicant was seen by S/Const Hawes near Scone riding a Harley-Davidson motorcycle, registration No. 2PHAT. He was wearing a black leather vest with a small Rebels OMCG patch on the upper left front side. The wearing of that vest was said to suggest a connection or affiliation with the Rebels. There was known to be a gathering of Rebels at Scone on that day. It was also known that Michael Bassal was a Rebels member.
On behalf of the applicant it was submitted that his brother Michael might have been the rider and could have borrowed the applicant's machine. The officer was adamant, however, that he had checked the rider's licence and photograph and that it was definitely the applicant. As the applicant gave no evidence about a possible loan of his motorcycle, or about any other matter, it was not possible to explore that assertion any further. The respondent did not aver that the applicant was himself a member of the Rebels, but the above does tend to indicate some form of association, especially as Mark was in business with Michael, a partnership that laid the foundation for the Inline tragedy.
The Court of Appeal has acknowledged that it is commonly recognized that OMCGs are involved in criminal activities: Stealth Enterprises Pty Ltd v Calliden Insurance Ltd [2015] NSWSC 1270, [100]; affd. [2017] NSWCA 71. The enactment of the Crimes (Criminal Organizations Control) Act 2012, which can limit the activities of certain OMCGs for specific periods, indicates that the Legislature regards the activities of OMCGs and their members as a risk to public safety: Sciberras v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 206, [80].
Where there is evidence demonstrating that an applicant is a member of an OMCG whose members are known to have engaged in criminal activity but the applicant refuses to dissociate himself or herself from it, it is appropriate to refuse the applicant a firearms licence: id., [95]; see also Mielczarek v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2016] NSWCATAD 34. Though the applicant is not known to be a Rebels member, even an association with such a group can be a matter of concern, given the risk that firearms can fall into the wrong hands: Rosenboom v Commissioner of Police, New South Wales Police [2006] NSWADT 10, [20].
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In Mielczarek (at [137]) I pointed out that:
[T]here is no doubt that the Rebels OMCG is considered, both internationally and within Australia, to be an organized crime group…. Both versions of the s 19 determination note the tribunal's comment in Zahra at [52] that "the Rebels are an organised crime network and… the club poses a significant threat to the public interest". It may also be noted that organized groups with violent propensities that wear distinctive uniforms or emblems have been an object of legislative concern since the Statutes of Livery of 1377 to 1468. See also Liquor Act 1992 (Qld.), ss 173EA to 173AD, declaring OMCG colours to be prohibited items that must not be worn on licensed premises.
That decision was upheld by the Appeal Panel: Mielczarek v Commissioner of Police, New South Wales Police Force (No. 2) (2016) NSWCATAP 255.
In the present case there is prima facie evidence that the applicant has an association, possibly a close one, with the Rebels OMCG. The applicant had an opportunity to give or adduce evidence or an explanation that could negate any prima facie inference to that effect. In his written submissions he assured the tribunal that "probative evidence will be adduced during the NCAT proceedings that support the contention that the Applicant and his present circumstances represents 'virtually no risk' to the Public".
He chose, however, not to give evidence or to file a statement. His explanation was that he could not give evidence because he was required as a witness in a forthcoming District Court trial for attempted murder. Why that circumstance should prevent or deter him from giving evidence in his own administrative review proceedings is less than obvious. Indeed, he adduced no evidence at all, except that which could be obtained through cross-examining S/Const Hawes. While Jones v Dunkel (1959) 101 CLR 98 does not apply as such in NCAT proceedings, the tribunal is thus left with a picture that does not favour the applicant's case.
I therefore find, on the basis of both the open and confidential evidence, including that relating to his apparent association with the Rebels OMCG, that his possession of firearms involves a risk to public safety and that it is therefore not in the public interest for him to hold a firearms licence.