Brandusoiu v Commissioner of Police

Mr Brandusoiu's applications matters number 1420201 and 1410272

1. Mr Brandusoiu has two applications before the Tribunal. Application number, 1410272 is an application concerning the Commissioner's rejection of his application for a firearms licence in the category AB. Mr Brandusoiu had sought a category AB licence for the purpose of recreational hunting/vermin control. This was rejected on 29th October 2013 and affirmed under internal review on the 24th of April 2014. The reasons provided for the rejection of the application on internal review were that Mr Brandusoiu was not a fit and proper person and that the Commissioner should not exercise his discretion to grant Mr Brandusoiu a firearms licence because it was not in the public interest.
2. The other application number 1420201 seeks review of the decision of the Commissioner of Police, New South Wales to reject his applications made on 5th March 2014 for a master and operator's licence under CAPIAA. That decision was affirmed under internal review on the 13th of May 2014.
3. The Commissioner refused him these licences on the basis that he was a "disqualified person" and therefore, not a fit and proper person under CAPIAA. This was because a finding of corrupt conduct was made against him by the Independent Commission Against Corruption (ICAC) in December 2009. The Commissioner also said that it was not in the public interest for Mr Brandusoiu to be granted these licences.
4. Mr Brandusoiu had previously had his CAPIAA and firearms licences cancelled after ICAC had made findings against him in December 2009.
5. These cancellations were affirmed by the NSW Administrative Appeals Tribunal Appeals Panel (Appeals Panel) in 2012 after Mr Brandusoiu unsuccessfully sought review of the cancellation decisions.

Application of Adrian Stanescu 1410192

1. Mr Stanescu's application is in relation to the suspension on 8th January 2014 and the subsequent revocation of his firearms licence on 24th March 2014. The reasons set out in the letter of 24th March 2014 for the revocation of Mr Stanescu's firearms licence were that the Commissioner had reasonable cause to believe that Mr Stanescu may not personally exercise continuous and responsible control over firearms because of his way of living and his domestic circumstances and because it was not in the public interest that Mr Stanescu continue to hold a licence.
2. This was on the basis that Mr Stanescu and those with whom he was residing had alleged associations with outlawed motorcycle gang (omg) and drug activities.
3. The Commissioner did not rely on any specific behaviour of Mr Stanescu in relation to firearms in drawing these conclusions.

Application of Angela Brandusoiu 1410187

1. Mrs Brandusoiu's application is in relation to the revocation of her firearms licence on or around 28th March 2014. She had held this licence since 26th August 2011. The reasons for the revocation of Mrs Brandusoiu's firearms licence were the same as those for Mr Stanescu. They were that the Commissioner had reasonable cause to believe that Mrs Brandusoiu may not personally exercise continuous and responsible control over firearms because of her way of living and her domestic circumstances and because it was not in the public interest that Mrs Brandusoiu continue to hold a licence.

Powers of NCAT Review - Relevant law

1. Section 75 of the Firearms Act 1996 provides for the review of decisions to revoke or refuse firearms licences under the Act to be reviewed by the NSW Civil and Administrative Tribunal (NCAT).
2. Section 63 of the Administrative Decisions Tribunal Act 1997 provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides: (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."
3. The hearing is a hearing "de novo" - meaning that the Tribunal may consider the matter from the start including taking into account fresh evidence brought before the Tribunal. The Tribunal is not restricted to the consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

Procedure of hearing

1. The matters were heard on 23rd of July 2014; 20th October 2014; 10th November 2014 and 23rd February 2015.
2. On 10th November 2014, on application of the Respondent, the Tribunal ordered that the hearing on 10th November 2014 be conducted in private - in the absence of the Applicants pursuant to section 49(2) of the Civil and Administrative Tribunal Act 2013 NSW (CATA). The Respondent had submitted that it was desirable to do so as it wished to put confidential evidence to the Tribunal.
3. On 10th November 2014 the Tribunal also made the following orders pursuant to section 64(1) of CATA: 1. section 64(1) (b) prohibiting the publication or broadcast of any report of proceedings in the Tribunal on 10th November 2014; and 2. section 64(1) (c) an order prohibiting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal on 10th November 2014; and 3. section 64(1) (d) an order prohibiting the disclosure to the Applicants to the proceedings of evidence given before the Tribunal, and of the contents of documents lodged with the Tribunal and received in evidence by the Tribunal, in relation to the proceedings on 10th November 2014.
4. The Tribunal notes that at the end of the hearing on 10th November 2014, the Tribunal returned to the Respondent the documents tendered. Copies were not retained on the Tribunal's file.
5. The Tribunal does not rely on the evidence given, or the contents of the documents tendered on 10th November 2014 in reaching its decision.

Oral evidence before the Tribunal

1. The Applicants did not give oral evidence in the matters.
2. The Respondent called 2 witnesses, Detective Senior Constable (DSC) Bradley Atkins and DSC Bibiana Passak. Mr Tiberiu Brandusoiu cross examined these witnesses on each of the Applicants' behalf.
3. The Respondent provided to the Tribunal and screened during the course of the hearing, the contents of a memory stick showing the police recording of the execution of the search warrant at the Brandusoius' home on 30th April 2013.

Documents before the Tribunal

1. None of the Applicants filed written evidence other than their applications. Mrs Angela Brandusoiu submitted photos of herself with lacerations on her arm which she contended were the result of an attack by a kangaroo. She also produced a letter addressed to Mr Brandusoiu from the Local Land Services Central Tablelands in Mudgee concerning control options for wild dogs.
2. The Respondent provided a set of section 58 documents in relation to each of the applications. In addition to the memory stick with the recording of the execution of the search warrant, the Respondent also provided a bundle of documents that related to the execution of the search warrant at the Brandusoius' home on 30th April 2013.
3. The 3 Applicants were represented by Mr Breeze of Counsel on the last day of the hearing on 23rd February 2015. At the end of the hearing on 23rd of February 2015, the Tribunal set a timetable for the filing of written submissions and reply by each of the parties. Unfortunately this timetable had to be elongated as result of matters beyond the parties' and the Tribunal's control.
4. The Applicants filed submissions dated 27th April 2015.The Respondent filed submissions dated 16th June 2015. The Applicant filed submissions in reply dated 3rd July 2015.

Evidence of Detective Senior Constable Bradley Atkins

1. DSC Atkins had been in charge of the execution of a search warrant at the Brandusoiu's home on 30th April 2013. At that time, DSC Atkins was attached to the Gang Squad.
2. He was investigating an alleged matter of drug supply by the Brandusoiu's younger son Anthony Brandusoiu. He said that at the time of the Tribunal's hearing, Anthony Brandusoiu was in custody having pleaded guilty to the charges and was awaiting sentencing.
3. The Tribunal was subsequently informed that Anthony Brandusoiu was sentenced to 2 years and 10 months and would be in custody until at least January or Feb 2016.
4. DSC Atkins said the first priority when they were executing the search warrant was to locate and secure the firearms registered to Mrs Brandusoiu. The video showed Mrs Brandusoiu retrieving the keys for the firearms storage unit from the side of the bed on which Mr Brandusoiu slept and where he kept his mobile telephone. Mr Brandusoiu was not at that time licensed to possess firearms. DSC Atkins also said that Mrs Brandusoiu had difficulty in opening the bedside cabinet in which the keys were contained. When she was asked how many guns there were in the safe and what kind of firearms they were, she seemed uncertain. She said to DSC Atkins that she was feeling quite shaken up and could not respond at that time. Mrs Brandusoiu was then asked which firearm a particular bolt belonged to. She identified the relevant firearm. DSC Atkins alleged that he saw on the internal wall in the house a photograph of Mr Brandusoiu with his two sons, standing next to a dead boar.
5. This photo was not produced to the Tribunal.
6. DSC Atkins told the Tribunal that when the main bedroom shared by Mr and Mrs Brandusoiu was searched, three batons, prohibited weapons, were found underneath Mrs Brandusoiu's side of the bed. A samurai sword and a smaller dagger were found between Mr Brandusoiu's side of the bed and a bedside table. The samurai sword and the dagger were not prohibited weapons. DSC Atkins said that when Mrs Brandusoiu was asked why she had the three batons on her side of the bed, she did not provide a response. Mr Brandusoiu said he had the swords underneath his side of the bed because he liked them and he liked to keep them near his bed.
7. DSC Atkins also said that while they were searching the premises they found a memorial card for the late Zelko Mitrovic. He had been a member of an outlawed motor cycle gang, the Hells Angels and he was killed at work. Mr Brandusoiu had said "he was a nice person and a friend."
8. DSC Atkins said that the concern about Mr and Mrs Brandusoiu and their son having firearms was that their son Anthony was an associate of Arman Prcanovic, a Sergeant at Arms of an omg, the Comancheros. They had both pleaded guilty in relation to a drug supply matter. His concern was that legal associates of outlaw motorcycle gang members are able to provide assistance to the activities of omg members with firearms or ammunition.
9. DSC Atkins said that Mrs Brandusoiu's weapons had been stored safely. DSC Atkins said that the Brandusoiu family had been entirely cooperative with the execution of the search warrant and there had been no problem.
10. DSC Atkins was asked by Mr Brandusoiu why, when the police attended the home, DSC Atkins had asked where Adrian was, when the search warrant was being executed in relation to the activities of Anthony. DSC Atkins indicated the he could not recall, but may have been confusing Adrian with Anthony.

Evidence of Detective Senior Constable (DSC) Bibiana Passak

1. DSC Passak said that she was a member of the Gang Squad. She had not been involved in executing the search warrant at the Brandusoiu's house. She had provided a seven page report dated 18th December 2013 which was relied on by the Respondent.
2. DSC Passak had been involved in the investigation of drug dealing leading to the arrest and charging of Anthony Brandusoiu and his co-accused Arman Prcanovic. The primary concern about Angela Brandusoiu was that there was a serious risk of her firearms falling into the hands of omg members, given the association between her son and his co-convicted, Arman Prcanovic. She observed that Angela Brandusoiu had long fingernails which would prevent her from using high-powered firearms appropriately. This also suggested that she was not really the user of the firearms.
3. Detective Passak said that their intelligence holdings indicated that Mr Brandusoiu was implicated in drug dealing.
4. When asked why it had taken eight months for the Commissioner to revoke Mrs Brandusoiu's firearms licence after the search in April 2013, DSCe Passak said that Mrs Brandusoiu's firearms had been seized and were no longer on the premises after the search on 30th April 2013. She would be concerned if the firearms were returned to Mrs Brandusoiu.

Intelligence report re Steve Timotic I 33748562

1. DSC Passak submitted to the Tribunal an intelligence report numbered I 33748562. The report, provided by a police officer whose name had been blacked out, is dated 24th April 2008. It notes amongst other things, that Mr Brandusoiu had been sighted at Liverpool Mall in the company of Steve Timotic who was thought by police to be a Hells Angels omg member. Mr Timotic had been wearing a Hells Angels omg t shirt - although he had denied being a full member.

Applicants' Evidence

1. None of the Applicants gave oral evidence. They relied on the contents of their applications for review. These included, in Mr Brandusoiu's case, a number of character testimonials.

Submissions in relation to Tiberiu Brandusoiu

1. Mr Brandusoiu noted that the Respondent had placed a significant weight on the ICAC 2009 findings in finding him not fit and proper to hold either a firearms or a CAPIAA licence. He submitted that there were defects with the ICAC procedure and findings. He submitted that the Tribunal ought to examine, in particular, the telephone interception evidence. Without proper testing of the participants to the phone calls, the findings of ICAC should be disregarded. Further, a criminal court had rejected the prosecutions made subsequent to the ICAC findings. This further undermined the reliance upon the ICAC findings.
2. He questioned the relevance of DSC Passak's report which had been prepared in relation to Mrs Brandusoiu. He rejected the idea that Mrs Brandusoiu had shown poor understanding of firearms. She had held a licence in the past. In any event this did not impact upon his own fitness.
3. The length of Mrs Brandusoiu's finger nails did not impact upon his fitness. A positive inference should be drawn that he and Mrs Brandusoiu were people who could be trusted to store firearms properly - given Mrs Brandusoiu's history of complying with firearms storage requirements.
4. There was a positive history in the household of storing firearms appropriately and this should be taken into account in his favour. It should be taken into positive account that he had taken a damaged firearm to Green Valley Police Station.
5. No weight should be given to photos which might have shown himself with Adrian Stanescu standing next to a dead boar as demonstrating that he had used his wife's firearms. There was no other evidence to support the idea that Angela Brandusoiu might allow her husband and son to use her firearms.
6. Intelligence holdings alluded to had not been produced and he had not been given an opportunity to address them. There was no evidence of connection between Anthony Brandusoiu's activities and himself.
7. He submitted that his criminal history did not prohibit him from holding a firearms licence. His most recent criminal offence was seven years ago and no conviction had been recorded. He submitted that his criminal history consisted of matters which had occurred too long ago; were trivial; for which he had received good behaviour bonds or which had been dismissed.
8. Generally speaking he was fit and proper and having licences both for firearms and under CAPIAA was in the public interest.
9. He also wished to be heard should the Tribunal consider imposing a storage condition upon his firearms licence.

Respondent's submissions in relation to the applications of Tiberiu Brandusoiu

1. The Respondent submitted that both Mr Brandusoiu's firearms application and his CAPIAA applications had been rejected because he was not fit and proper and the grant would be contrary to the public interest. The Respondent noted that Mr Brandusoiu had not addressed the ADT Appeal Panel's previous findings in 2012 that he was not a fit and proper person as set out in paragraphs 27 to 32 of the Panel's decision. See Brandusoiu v Commissioner of Police NSW Police Force (No. 2) (GD) [2012] NSWADTAP 6.
2. The Respondent referred to the evidence of DSC Atkins noting that Mr Brandusoiu's mobile phone and the keys for the firearms safe were stored on the same side of the bed - indicating that Mr Brandusoiu continued to have control over the storage of the firearms. He had also noted Mrs Brandusoiu's lack of knowledge about the individual firearms and her assertion that she only used them at the family farm in Mudgee.
3. There was a Samurai sword and a shorter sword between Mr Brandusoiu's side of the bed and the bedside table.
4. Mr Brandusoiu had described the deceased Hells Angel Zelko Mitrovic as a "friend" and "a nice person". DSC Atkins stressed the role of associates of omgs in the provision of firearms and ammunition to omgs.
5. The Respondent referred to the evidence of DSC Passak. She had noted Mrs Brandusoiu's lack of knowledge about the firearms which were previously owned by Mr Brandusoiu. Mrs Brandusoiu had not obtained a firearms licence until after Mr Brandusoiu had lost his. She referred to Mr Brandusoiu's dominant personality. These factors meant that Mr Brandusoiu continued to be in charge of the firearms.
6. Anthony Brandusoiu had links with omgs and Mr Brandusoiu had his own links with omgs. While the serious indictable charges emerging out of the ICAC corruption findings against Mr Brandusoiu had been dismissed by the District Court on 16th December 2013, there was no new evidence before the Tribunal in relation to Mr Brandusoiu's fitness and propriety.
7. The Respondent referred to the specific CAPIAA requirements for a licence holder to be fit and proper. There was the same requirement in relation to firearms.
8. This was supported by the line of cases dealing with a person's fitness and propriety to hold a licence. The words fit and proper gave the widest scope for judgment and for rejection. Fitness for an office involved three things, honesty, knowledge and ability. The conduct of the person needed to be considered in light of the person's suitability for the specific task for which they were being licensed. The person needed to possess the requisite knowledge of the duties and responsibilities attached to the licence. They also needed to have sufficient moral integrity and rectitude of character as to permit the person to be safely accredited to the public. See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 and Sobey v Commercial and Private Agents Board [1979] 22 SASR 70.
9. The Respondent referred to the Tribunal's findings in IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 at [27]: "I note that a person may well be a fit and proper person to hold a taxi licence while at the same time not be a fit and proper person to hold a security licence. I agree with the view expressed by the Commissioner's delegate that the expression "fit and proper person" takes its meaning from its context. A higher standard is applicable to licensees in the security industry because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe."
10. The Respondent submitted that a higher standard is applicable to CAPIAA licensees using the same rationale that has been applied to security officers. The objects of CAPIAA included the overriding need to ensure public safety and the protection of property.
11. In relation to public interest the Respondent referred to the NSW ADT Appeals Panel's statement concerning public interest in Police v Toleafoa [1999] NSWADTAP 9 at [25]: 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.
12. The activities the person is to be involved in are relevant to the public interest. In this instance it was relevant that the objects and purposes of the CAPIAA are regulation to protect the public and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity. See O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130
13. The Respondent submitted that the public interest would not be served by Mr Brandusoiu having either CAPIAA or firearms licences.
14. The Respondent submitted that references which do not disclose an understanding in the referee of the person's offences - such as those accompanying Mr Brandusoiu's application, should be accorded little or no weight.

Findings of fact

1. The Tribunal must be satisfied of the case before it on the balance of probabilities, the standard set out under the Evidence Act 1995 section 140 as follows: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.

Findings of fact in relation to Mr Tiberiu Brandusoiu

1. The Tribunal had before it the findings of ICAC in its Report on corruption in the provision and certification of security industry training made in 2009. The Commission's findings at page 34 in relation to Mr Brandusoiu are: "The Commission finds that Tibi Brandusoiu, by arranging for Mr Bozynak to obtain a false certificate of competency from Mr Moosani for the purpose of Mr Bozynak obtaining a provisional security licence from the SIR, engaged in corrupt conduct on the basis that his conduct adversely affected, either directly or indirectly, the exercise of official functions by officers from the SIR (that is, those functions connected with the determination of Mr Bozynak's application for a security licence) and could involve fraud on his part and therefore comes within section 8 (2)(e) of the ICAC Act."
2. In his submissions, Mr Brandusoiu has sought to challenge the ICAC findings before this Tribunal. Paragraph 47 of Mr Brandusoiu's written submissions sets out: "The findings made by the ICAC are tenuous and lacking proper foundation…….Significant weight was placed upon the telephone intercept material. It is submitted that without a proper testing of the participants to the phone calls, the findings made by ICAC should be disregarded. "
3. Elsewhere in his submissions to this Tribunal Mr Brandusoiu alleges there was a lack of procedural fairness to him in ICAC's procedure.
4. The Tribunal notes that similar submissions were made to and considered by the Appeal Panel in its decision Brandusoiu v Commissioner of Police NSW Police Force (No. 2) (GD) [2012] NSWADTAP 6.
5. These are set out as follows at paragraphs [15-22]: The appellant has pressed two points: one, his consistent denials of any complicity in Mr Moosani's practices; and two, what he contends is, the forensic weakness of the adverse findings made by the ICAC. He has also relied on a large number of references from clients expressing satisfaction with the work of his then firm, many from the period 2000-2003. The clients included a number of major Sydney hotels. There is a set of further references from the 2009-2010 period including ones that referred to the adverse findings and expressed surprise. They include recent testimonials from a church and a school with which he has been associated. The appellant rejects the opinion expressed in the Commissioner's submissions that the contents of the recorded conversations can properly be interpreted as demonstrating that the appellant was aware of 'wide ranging corruption' at Roger. The submissions point out, we think properly, that the only evidence before the ICAC referred to the single set of events involving the appellant, Mr Moosani and Mr Bosynak. We accept that there is no basis in the ICAC's material to which our attention has been drawn for attributing to the appellant any knowledge of 'wide ranging corruption'. In support of his case that he was unaware of any improper practice by Roger, the appellant refers to the statement given to the ICAC by Mr Bosynak (15 July 2009), at transcript p 481 of the ICAC's hearing. He notes that it only made two references to the appellant, each confined to the fact that the appellant introduced Mr Bosynak to Mr Moosani, but nothing further. The appellant was also critical of the procedure adopted by the ICAC at hearing, and asserted that only one of the three calls to which the appellant was a party was played to him by the ICAC when he gave evidence (the call of 10.38 am on 9 February 2009). The appellant rejected the Commissioner's submissions insofar as they might be seen as seeking to implicate the appellant in extraneous suspicious conduct involving Mr Moosani and Mr Bosynak. Mr Moosani accepted as payment from Mr Bosynak an opal said to be worth $3800-$4000, three times the usual cost of a training course, $1600. We accept that in the material to which our attention has been drawn there is nothing to indicate that the appellant was aware of this arrangement. As to the contents of the telephone conversations relied upon by the ICAC, the submissions note that they do not include any express statement by the appellant to the effect that he knew the certification practice was wrong and fraudulent. It is submitted that at the highest his statements only provide a basis for mere suspicion or speculation. The submission notes the absence of any questioning of the appellant from counsel assisting the commission or from the bench as to what awareness he had of the acceptability of certification practices of the kind in issue. The submission is that the ICAC failed to establish the foundation for its adverse findings.
6. Having considered Mr Brandusoiu's submissions the Appeal Panel concluded however at paragraph [26]: 26. In our view, this material supports an inference, and a prima facie case that he was aware, at the time he recommended Mr Bosynak to enrol with Roger, that he would be provided with the answers needed to meet the work book requirement, and that he was aware that the practice was improper and fraudulent. 27. He has not availed himself of the opportunity to give evidence in these proceedings to counter this inference. He has relied entirely on the submissions put on his behalf by counsel. We accept that he may see himself as having difficulty in co-operating in this way with our process given the possibility of criminal charges; and that he is entitled to exercise the privilege against self-incrimination.
7. Mr Brandusoiu did not himself give evidence to this Tribunal and did not call witnesses. It was not possible to test the participants to the phone calls referred to in the ICAC hearing and findings - as suggested in his submissions. There is insufficient evidence before the Tribunal to cause it to contradict the ICAC findings, or the ADT Appeals Panel's reliance on those findings in 2012.
8. Accordingly this Tribunal is satisfied that Mr Brandusoiu engaged in corrupt conduct as set out in the ICAC findings in 2009.
9. There has been no evidence put before the Tribunal by Mr Brandusoiu going to his current honesty and integrity.
10. The Tribunal is satisfied that Mr Tiberiu Brandusoiu has had association with a member of an outlawed motorcycle gang - the late Mr Zelko Mitrovic who was murdered. Mr Brandusoiu has an association with Steven Timotic who is at least an associate of an omg. Further, Mr Brandusoiu's son Anthony who was previously living in the family home, has been found guilty of drug supply, together with Arman Prcanovic a Sergeant at Arms of the Comancheros.
11. A Samurai sword and small dagger were found next to Mr Brandusoiu's side of the bed at the time of execution of the search warrant on the Brandusoiu's home in April 2013. At the same time, batons were found next to Mrs Brandusoiu's side of the bed. Mrs Brandusoiu is reported not to have explained why the batons were there. Mr Brandusoiu is reported to have said he kept the sword and dagger there because he liked them. In the absence of further explanation, the Tribunal draws the inference that the items were on either side of the bed for protection. The Tribunal also draws the inference that Mr and Mrs Brandusoiu apprehended some risk to their safety.
12. The Tribunal is satisfied that Mr Brandusoiu has a criminal history as set out in the Respondent's section 54 documents. The major part of Mr Brandusoiu's criminal history occurred prior to the last issue of a firearms licence to him in December 2007. That firearms licence was to have expired on 19th December 2012. There is only one matter in Mr Brandusoiu's criminal history which has occurred since the revocation of his category AB firearms licence on 6 January 2010. This is a matter which occurred on 15th July 2010 in which he was found guilty of drive with low range PCA and placed on a good behaviour bond for 12 months.

Relevant legislation in relation to Tiberiu Brandusoiu

Commercial Agents and Private Inquiry Agents Act 2004 (CAPIAA)

1. The Commissioner refused Mr Brandusoiu's applications for a CAPIAA operators and master licence on similar grounds to the refusal of a firearms licence. Mr Brandusoiu was not fit and proper and it was not in the public interest to issue him with CAPIAA licences.
2. The relevant provisions of CAPIAA are section 7 in relation to a refusal of a masters licence and section 13 in relation to a refusal of an operators licence. They are expressed in identical terms. Applications for masters and operator licences must be refused if the Applicant is a disqualified individual or disqualified corporation.
3. A disqualified individual is defined relevantly in section 4(c) of CAPIAA as an individual who, in the opinion of the Commissioner, is not a fit and proper person (whether because of subsection (2A) or otherwise) to hold a licence.
4. Section 4(2A) of CAPIAA further defines a "disqualified individual" as follows: "an individual is not a fit and proper person to hold a licence under this Act if the Commissioner has reasonable grounds to believe from information held in relation to the individual: (a) that the individual is a member of, or regularly associates with one or more members of, a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2012 , and (b) that the nature and circumstances of the individual's relationship with the declared organisation or its members are such that it could reasonably be inferred that improper conduct that would further the criminal activities of the declared organisation is likely to occur if the individual were to hold or continue to hold a licence under this Act."
5. Applications for masters and operator licences may be refused if the Applicant has been convicted or found guilty of a minor offence, or if the Commissioner is of the opinion that the grant of the licence would be contrary to the public interest.

Firearms application

1. The Commissioner relied on his powers to refuse an application for a firearms licence set out in section 11 of the Firearms Act 1996. The grounds were that Mr Brandusoiu was not a fit and proper person (section 11(3) (a) and that it was not in the public interest (section 11(7)).
2. The Tribunal notes that section 11(3) (a) expresses a mandatory requirement for the Commissioner not to issue a licence unless the Commissioner is satisfied that the Applicant is fit and proper. At the same time, the Commissioner has a discretion not to issue a licence if the Commissioner considers it would be contrary to the public interest see section 11(7).
3. The Respondent's internal review decision of 24th April 2014 concludes that Mr Brandusoiu is not fit and proper and that it is not in the public interest for him to be issued a firearms licence. The Internal Reviewer relied on the discretionary public interest grounds in refusing to grant Mr Brandusoiu a firearms licence and not the mandatory fit and proper ground.

Consideration of "not fit and proper" - refusal of CAPIAA licences

1. The High Court dealt with the phrase "fit and proper person" in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. In that matter the ABT was required to refuse a licence if it was not satisfied that the Applicant or the holder of a licence was a "fit and proper person". Toohey and Gaudron JJ stated (at 380) that: "The expression "fit and proper person", standing alone, carries no precise meaning. It 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. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. "
2. In the same case, Mason CJ stated at [63] that: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."
3. The content of fitness and propriety was defined in the matter of Hughes & Vale in the High Court as having 3 components -"honesty, knowledge and ability." Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at para 9.
4. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper": "In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."
5. This Tribunal's synthesis of these requirements in this matter is that Mr Brandusoiu's fitness and propriety must be determined in the light of the role he is to undertake. The Tribunal must consider the evidence before it about Mr Brandusoiu's honesty, knowledge and ability as it relates to the specific role. It is a determination to be made by the decision maker taking into account and weighing up matters both contrary to and in favour of the Applicant.
6. The Tribunal also refers to Murray's and the AIC case - see Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 and the Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65. The findings of the Appeals Panel in these matters indicates that some of the testimonials provided by Mr Brandusoiu with his applications for review do not provide real value - given some of the the providers do not disclose a knowledge of the ICAC findings.
7. The findings of the Tribunal's Appeals Panel in the AIC case - see Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at 12 mean that the attestation to Mr Brandusoiu being a fit and proper person must be positive and not simply a failure of the case against him to meet a reasonable doubt. Further, the judgement of a reasonably minded person is an important consideration in deciding whether Mr Brandusoiu is now fit and proper.
8. The Tribunal notes the findings and decision of the ADT Appeals Panel in 2012 to affirm the decision to cancel Mr Brandusoiu's CAPIAA operators licence on the basis that he was not fit and proper.
9. In his application to the Commissioner on 5th March 2014 for an operators and master licence under CAPIAA, Mr Brandusoiu advised that the criminal conviction after the ICAC findings, entered on 2nd April 2013, was overturned in December 2013 and that he is now a fit and proper person. This Tribunal notes however that the decision of the Appeals Panel in 2012 that Mr Brandusoiu was not fit and proper, did not rely on the prosecutions arising out of the ICAC findings to find that Mr Brandusoiu was not fit and proper. Both the conviction and overturning of that conviction occurred after the Appeals Panel made its findings in 2012.
10. This Tribunal refers to the decision of the Appeals Panel in paragraphs 27 through to 32. See Brandusoiu v Commissioner of Police NSW Police Force (No. 2) (GD) [2012] NSWADTAP 6. Mr Brandusoiu did not give evidence in the Appeal Panel proceedings. He claimed protection against self-incrimination in the Appeal Panel proceedings.
11. Mr Brandusoiu did not give evidence in the current proceedings. He did not claim protection against self-incrimination in the current proceedings. This Tribunal is not aware of potential criminal proceedings in relation to Mr Brandusoiu. The Appeal Panel noted Mr Brandusoiu's continued disinclination to give evidence and counted this against him in its own considerations.
12. Paragraph [28] of the Appeal Panel's decision sets out an obligation of candour on a licensee in dealing with an administrator or decisonmaker: "However, the administration of occupational licences sits in a different part of the legal system to a criminal trial. Persons who hold licences have, as we see it, a duty of candour in relation to matters of concern to the administrator (and, on review, the review Tribunal exercising the powers of the administrator)."
13. Mr Brandusoiu has not complied with this duty of candour by giving evidence before this Tribunal.
14. The current Tribunal has insufficient evidence to counter the previous findings of the Appeal Panel set out at paragraphs [30] and [31] of its decision. These found that Mr Brandusoiu could not be regarded "for the time being" as a person fit to hold a security licence. The Appeal Panel left the door open for a different decision to be made in the future.
15. The Appeals Panel determined at paragraphs [30-31]: "30. We are left with a strong prima facie case, and an inference that has not been rebutted. There is a grave doubt as to the appellant's integrity and honesty. Without more, we do not accept that a person of his experience in the industry would have been unaware that Roger's practice was wrong and fraudulent. 31. This conduct is so gross that he cannot be regarded for the time being as a person of integrity fit to hold a security industry licence, and nor can the firm of which he is a close associate be regarded as fit to hold a master security industry licence. For the same reasons, he can no longer be trusted to maintain a commercial and private agent's licence."
16. The findings as to Mr Brandusoiu's integrity and honesty and the grossness of his conduct have not been contradicted by any evidence placed before the Tribunal. The mere effluxion of time since the Appeal Panel's 2012 decision is not sufficient in this regard. The Tribunal must be able to attest positively to Mr Brandusoiu's fitness and propriety.
17. The Tribunal does not have new evidence before it to suggest that Mr Brandusoiu has regained his fitness and propriety to hold a CAPIAA licence.

Fit and Proper and firearms licence

1. The Appeals Panel has previously found in 2012 that Mr Brandusoiu is not fit and proper to hold a firearms licence. "32. The position in relation to the firearms licence is, perhaps, not as clear cut. This appears, on its face, to be a private, recreational licence rather than a business licence. But these cases have been conducted by both parties on common material and common arguments. We therefore reach the same conclusion in relation to the firearms licence".
2. Mr Brandusoiu has not presented evidence to contradict this finding
3. The Respondent has not made specific submissions about Mr Brandusoiu's fitness and propriety to hold a firearms licence. The Internal Review refers to Mr Brandusoiu's corrupt conduct which was the basis for the ICAC findings. The Internal Reviewer concludes that this conduct clearly demonstrated that Mr Brandusoiu cannot be trusted to be honest and truthful and to consistently obey the law.
4. Barlow's case also defines fitness and propriety in relation to firearms licensing, see Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254. At paragraph [22], Senior Member Higgins stated the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. "That is, s. 11(3) (a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace."
5. In Ward v Commissioner of Police [2000] NSWADT 28 the Tribunal's Deputy President, Hennessy considered the fitness and propriety of Mr Ward to hold a firearms licence. The Deputy President stated at paragraphs [27 - 28]: "27 ...The question for the Tribunal is whether, based on all the evidence, it would have confidence that [the Applicant] would not pose a risk to public safety if he had access to firearms. 28 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."
6. Mr Brandusoiu has no history of firearms offences. Since the revocation of his category AB firearms licence on 6 January 2010, Mr Brandusoiu's only offence occurred on 15th July 2010 in which he was found guilty of drive with low range PCA and placed on a good behaviour bond for 12 months. The Tribunal does not consider that this matter alone would justify refusal of firearms or CAPIAA licences on the basis that Mr Brandusoiu is not fit and proper.
7. Mr Brandusoiu does however have a history of findings of corruption by ICAC in relation to the public licensing system in the security industry. The Tribunal notes that this demonstrates a lack of regard for the public licensing system in the security industry.
8. There is a strict scheme of public regulation in relation to firearms possession set out in the Firearms Act 1996. The Tribunal cannot at present be satisfied that Mr Brandusoiu would be observant of and compliant with this strict scheme of regulation.
9. Further as already noted, there is a requirement for the Tribunal to be positively satisfied of Mr Brandusoiu's fitness and propriety to hold a firearms licence. In the absence of Mr Brandusoiu's direct evidence on this issue, the Tribunal cannot be satisfied as to his fitness and propriety to hold a firearms licence.

Public Interest in relation to CAPIAA licences

1. The Tribunal's findings in respect to whether the Applicant is fit and proper to be issued with CAPIAA licences is enough to dispose of this application as a finding that the Applicant is not a fit and proper person gives rise to a mandatory refusal. However, in the event that the Tribunal is incorrect about this, the Tribunal has also considered the public interest ground of refusal.
2. Public interest was referred to by the Appeal Panel in Police v Toleafoa (1999) NSWADTAP 9 at [25]. This matter related to security industry licensing. "(Public interest) is an inherently broad concept giving the appellant the ability to have regard to a wide variety 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 the public interest discretion to 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 objection."
3. The activities the person is to be involved in are relevant to the public interest. In this instance it is relevant that the objects and purposes of the CAPIAA are regulation to protect the public and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity. See O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130
4. The Tribunal considers that Mr Brandusoiu's integrity in relation to public regulation continues to be damaged by the ICAC findings of corruption in the security industry. He cannot be considered to be a person of integrity in relation to the objects of CAPIAA. It is not in the public interest for him to obtain CAPIAA licences in these circumstances.

Public Interest in relation to Firearms licence refusal

1. The Tribunal notes the description of "public interest" as embracing standards acknowledged to be 'for the good order of society and the wellbeing of its members' - see Director of Public Prosecutions v Smith (1991) 1 VR 63. Further the purpose of a reference to public interest is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for consideration. See Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at [p 681]
2. In Cusumano v. Commissioner of Police, New South Wales Police Service [2001] NSWADT 50), the Deputy President of the Administrative Decisions Tribunal, LCM Hennessy discussed the discretion in relation to public interest at [23]: "There is no guidance in the legislation in relation to how these discretions should be exercised. In my view the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
3. The underlying principles and objects of the Firearms Act are set out in section 3 :

3 (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. 3 (2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored in a safe and secure manner, (f) ……..

1. The Tribunal sets out below the oft quoted comments of Deputy President Hennessy in Ward's case see Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 "27 One of the objects of the Act, as set out in s 3, is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." In determining whether Mr Ward is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 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."
2. In that matter the Deputy President's comments were made in the context of considering the Commissioner of Police's decision to revoke Mr Ward's firearms licence because of Mr Ward's fitness and propriety - not in relation to the public interest grounds under the Firearms Act. This Tribunal has already affirmed the decision to revoke Mr Brandusoiu's firearms licence on the basis of his fitness and propriety.
3. The Deputy President's comments on public safety and risk set out above in Ward have been extrapolated in other decisions to found a basis for refusing or revoking a firearms licence on public interest grounds because of the risk presented to public safety by the licence holder. The concept of risk to public safety underpins all of the grounds for refusal of firearms licences - whether it be because the Applicant is not fit and proper or whether the refusal is based on public interest. The principles of the Act focus on the need to ensure public safety.
4. The Tribunal considers that the maintenance of public confidence that the Firearms Act is being administered to protect public safety is a significant concern. In Constantin v Commissioner of Police NSW Police Force (GD) [2013] NSWADTAP 16 at [33] the Appeals Panel stated 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.
5. The Respondent's witnesses expressed concerns about: • Anthony Brandusoiu's criminal conviction and his involvement with an omg; • Mr Tiberiu Brandusoiu's connections with omg members; and • the possibility of omgs using associates to obtain access to firearms.
6. The Tribunal has drawn an inference that Mr and Mrs Brandusoiu have kept weapons in their bedroom in response to a perception of risk. Mr Brandusoiu's son, Anthony, a resident of the home has been engaged in criminal enterprise with an omg member. Mr Brandusoiu counted a deceased omg member as a friend.
7. There is no certainty that public safety would be compromised were Mr Brandusoiu to have licensed access to firearms. This is not the test. The Tribunal considers that the circumstances described above create an objective risk to public safety were Mr Brandusoiu to have access to firearms.
8. Further it is in the public interest for members of the public to have confidence that the firearms licensing scheme is being administered in the overriding interest of public safety. In these circumstances the Tribunal cannot be satisfied that the public interest in ensuring safety can be met if Mr Brandusoiu is now licensed to possess firearms.

Decision The Tribunal affirms the Respondent's decisions to refuse Mr Brandusoiu licences under CAPIAA and the Firearms Act. 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: 15 March 2023