Chavoush v Commissioner of Police, NSW Police Force

Legal Principles

The Act establishes a legislative framework to regulate the possession, use, acquisition and supply of firearms. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal to hear and determine the Application. Section 63 of the ADR Act requires the Tribunal to make the correct and preferable decision on the basis of the evidence available at the time, together with any additional or later material: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77.
Section 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety: (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 … (2) The objects of this Act are as follows: … (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 and conveyed in a safe and secure manner, …
The power to grant an application for a firearms licence under s 11 of the Act is "tightly constrained" and in particular, significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant: Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159 at [1]. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 at [117]. Public safety, including the Applicant's safety, is the primary focus of the public interest issue and of the Act generally: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134.
In these proceedings the Respondent relied on s 11(7) of the Act to refuse the Applicant's firearms licence application. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. The expression "public interest" is not defined in the Act, but has been discussed in a number of Tribunal decisions. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said 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."
The public interest encompasses broader considerations beyond public safety. It is an inherently broad concept and is designed to give the broader interests of the community priority over private interests. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the '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 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.'
In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, it was stated at 681: The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
In Director of Public Prosecutions v Smith (1991) 1 VR 63 the Court observed: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43 (Lynch), the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act. A discretion to make a decision 'in the public interest' is not confined except by the scope and purposes of the legislation itself: DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15], referring to O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson, Gaudron JJ. The discretion must be exercised to promote the objects of the firearms legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23].
As stated by the Administrative Decisions Tribunal in Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276: 'The Applicant's individual interest in retaining his Category AB Firearms Licence must be subordinate to the public interest in ensuring public safety.'
In an often-quoted passage, Hennessy DP in Ward v Commissioner of Police [2000] NSWADT 28 (Ward) at [28] 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. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130].
Since then, Hennessy DP cautioned against applying that language in a mechanistic way, noting in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that: "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests".
Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66], Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32].
In determining whether the issue of a licence is contrary to the public interest, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] to [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30].
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 [2005] NSWADT 75 at [25]. The public interest requires that all licensees be aware of and comply with the legislative requirements: Vella v Commissioner of Police [2003] NSWADT 91 at [41].
Where there has been or is the possibility of a threat to public safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Aubrey v Commissioner of Police [2005] NSWADT 266 at [21]. The licensing regime is also concerned with "making decisions that are consistent with a need to reduce any risks to a minimum": Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36].

Consideration

In an undated statement filed with the Tribunal on 6 May 2022 the Applicant stated: … 3. On 4 April 2021, I was on a hunting trip in north-eastern Victoria, when I was found by Victoria Police to be in the possession of a rifle and spotlight in deer habitat after sunset. 4. Before I went on my trip, I researched the relevant requirements for the area l planned to hunt in. This led me to apply and obtain a Victorian Game Licence prior to my trip. I did not do enough research on the Victorian Laws where we were undertaking hunting activities and I am deeply sorry for committing breaches of the law. I have learnt a valuable lesson and vow to never reoffend if I am fortunate enough to have my firearm licence returned. 5. I was fully compliant with police requests at the time and pleaded guilty on the first opportunity. 6. My genuine reason for holding a firearm licence is target shooting and hunting. I am a long-time member of the Sporting Shooters Association of Australia and I have safely and responsibly assisted several primary producers in the control of feral animals on their properties. 7. I am the director of CHC Transport Pty Ltd. We have been operating for 18 years and our clientele has grown steadily during this period. We provide a warehousing and transport service to clients on the east coast of Australia. I employ 12 fulltime staff and several casuals to help assist with day-to-day operations of the business. I have employed several rehabilitated persons who have been given the opportunity to prove themselves as competent employees who are able to contribute positively towards our community. They may otherwise not have been given the opportunity to prove themselves and remained unemployed, being a burden to society. 8. l am a happily married man of 13 years and have 3 beautiful boys. l would like to give my sons the opportunity to learn about firearms safety and responsible hunting practices as l learnt from my father. My family has always been my main priority. I help with caring for disabled brother and assist my mother who lives alone wherever possible. 9. This experience has been a very sobering reality check. l would have never had intentionally broken the law or compromised the safety of my fellow hunters, myself or anyone else. I am remorseful and apologetic for my actions and it has improved me as a person. l am currently seeking to be admitted to a new course by the NSW Firearms Safety Awareness Council on firearm legislation to better myself by gaining a greater understanding of the firearm legislation as a way to show my commitment and to earn the public trust. …
At hearing the Applicant informed the Tribunal that he had completed a Firearms Safety Awareness course on 1 June 2022, and provided the Tribunal with a copy of the completion certificate and a letter from the training organisation's CEO explaining the course content and limitations. The Applicant stated that he had not undertaken any training or firearms safety awareness courses prior to 1 June 2022 because when he first applied for a firearms licence there was no requirement to do so, and there was no such course available. He stated that the course he had undertaken was the first such course.
Under cross examination on the incident of 4 April 2021, when questioned why he had a firearm loaded in the vehicle he explained that he thought he was entitled to be shooting spotlighting, and that he didn't know the rules and regulations then. When questioned whether he was intending to use the firearms he stated "no shots were fired from my rifle". Regarding the research he claimed to have undertaken prior to the hunting trip, he said that he and his companion had researched "maps of the area so we knew we had boundary lines". He had not read any of the fact sheets on the Victorian Game website because "I thought it was the same as hunting deer in New South Wales". He gave evidence that his sons were aged 12, 11 and 9 years. When questioned how he was intending to teach the boys about firearms safety and hunting, as expressed in his statement, when they were unlicensed, he explained that from age 12 his son could obtain a junior firearms permit and go hunting if accompanied by a licensed adult.
In re-examination the Applicant stated that the firearm, when seized, had bullets in the magazine but the bolt was closed, and he thought that was "quite safe".
The Respondent submitted that the Applicant's recent contraventions of the Victorian Act demonstrated that it was not in the public interest for his firearms licence to be issued. Those contraventions are prescribed offences pursuant to cl 5(1)(a) of the Firearms Regulation 2017, so if a conviction had been recorded the refusal of his firearms licence application would have been mandatory, and in the absence of a conviction they are to be considered by the Tribunal as a significant factor weighing against the granting of the licence. I agree, taking into consideration the principles espoused in Lynch at [47]: [the fact an individual] escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as a credibly by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable.
As discussed above at [22], the Tribunal is to take into account matters indicating criminal conduct even if the particular offences charged have not been proven or have been dismissed, because it is the conduct rather than the conviction that is of concern to the Tribunal. In these proceedings the Applicant was found guilty of the offences, and I accept therefore that he engaged in the conduct alleged, despite having no conviction recorded, on the basis that the Tribunal cannot canvass the correctness of a conviction or a finding of guilt: McGrath v Commissioner of Police, NSW Police Force [2019] NSWCATAD 98 at [44].
Despite the Applicant having been licensed to possess and use firearms for almost 20 years at the time of the offences, he appears to have been ignorant of the elementary offences under the Victorian Act not to "carry loaded firearm in a public place" or "carry or use a longarm without a licence", for which similar provisions exist in NSW firearms legislation. Relevantly: 1. the offence of carrying a loaded firearm in a public place in s 130 of the Victorian Act is reflected in s 61 of the Act, which allows Police to seize firearms suspected to be 'unsafe' and in a public place, and clause 149(1)(b) of the Regulation, which provides that a firearm must not be loaded when it is conveyed. 2. the offence of carrying or using a longarm without a licence in s 135 of the Victorian Act is analogous to the offence of using a firearm without a licence in s 7 of the Act.
The Applicant was found guilty of carrying a loaded firearm in a public place. I agree with the Respondent's submission therefore, that at the time of the commission of the offences, the Applicant's actions posed a real and appreciable risk to the safety of the public.
Although the Applicant stated that before he travelled to Victoria, he "researched the relevant requirements of the area [he] planned to hunt in" and that this research "led [the Applicant] to apply and obtain a Victorian Game Licence prior to [his] trip", in which he would have been required to declare that he 'will comply with the provisions of the Wildlife Act 1975 and the Wildlife (Game) Regulations 2012', he was apparently ignorant of the offence of "possessing spotlight and firearms between sunset and sunrise" pursuant to s 36 of the Wildlife (Game) Regulations 2012 (VIC). This is despite the Victorian Game Management Authority publishing a number of fact sheets, including one titled 'Possession and use of spotlights in recognised deer habitat', readily available on the internet, which notes that it is an offence to 'carry a loaded firearm in a vehicle' and 'possession of a firearm and spotlight between 30 minutes after sunset until 30 minutes before sunrise in recognised deer habitat'. There is also a fact sheet titled 'Which Game Licence do I need' which states that "these requirements are in addition to the requirements under the Firearms Act 1996. A firearms licence or visitor permit will also be required in order to use a firearm to hunt game". In the circumstances I do not accept that the Applicant did, in fact, research the relevant legislative requirements for hunting and spotlighting in Victoria prior to his trip. His actions demonstrate that either he was ignorant of the legislative requirements, or he chose to ignore them.
In relation to the Applicant's claim that there was no safety training course available when he first applied for a firearms licence, the Respondent submitted that this was incorrect. Pursuant to s 10(3) and 11(3)(b) of the Act the Applicant would have been informed of the firearms safety training course required to be completed by him, as specified in the regulations. Clause 96 of the Firearms (General) Regulation 1997 (1997 Regulation) provided: 96 Firearms safety training courses (1) Except as provided by subclause (2), the firearms safety training courses that are prescribed for the purposes of the Act are as follows: (a) for firearms other than pistols-the course known as the Firearms Licence Qualification Course or any other approved course conducted by or on behalf of an approved person or body, (b) for pistols-an approved course conducted by or on behalf of an approved pistol club. (2) In the case of firearms to be used by security guards or employees of a government agency, an approved firearms safety accreditation course is prescribed for the purposes of the Act. (3) The relevant course to be completed by applicants in respect of particular categories of licences or types of permits is to be determined by the Commissioner.
The 1997 Regulation was replaced in 2006 by the Firearms Regulation 2006 (2006 Regulation) which commenced on 1 September 2006, and cl 96 in the 1997 Regulation was replicated in cl 122 of the 2006 Regulation. Accordingly, since the commencement of the Act, and at the time the Applicant applied for a firearms licence, a licence could not be issued to him unless he had completed a Firearms Licence Qualification Course.
The 2001 Handbook and 2002 Handbook provided by the Applicant also demonstrate that to obtain a firearms licence in 2001 (when the Applicant first obtained a licence), an applicant had to study the 2001 Handbook and answer 20 multiple choice questions that were based on the information in the 2001 Handbook. Notably, the 2001 Handbook included at page 15: 8. Never carry a loaded firearm in a vehicle. Carry only empty firearms, preferably with the action open and the bolt removed or dismantled, in an appropriate carrying case. Driving over rough roads or terrain can cause a loaded firearm to discharge with possible tragic results.
Page 17 of the 2001 Handbook included: 21. Never shoot during the hours of darkness unless it is absolutely essential. During these hours it is impossible to see what may be in your danger zone. Shooters using spotlights should remember that a spotlight illuminates only a small portion of the danger zone and only a fraction of the projectile's range.
The information in the 2001 Handbook was essentially the same in the 2002 Handbook.
The Respondent submitted that whilst the nature of the firearms safety and training course has changed since 2001 to now include a written test and practical component, rather than simply answering 20 multiple choice questions, in order to obtain his licence the Applicant would have needed to undertake a firearms safety and training course and should therefore have been aware of the safety requirements and regulations regarding carrying a loaded firearm in a vehicle and shooting at night. His actions on 4 April 2021 therefore demonstrated that his knowledge of firearms laws and regulations was insufficient, and that the Tribunal could have little confidence that the Applicant has the requisite knowledge to comply with relevant regulations in circumstances where he has agreed to, but failed to comply, with regulatory provisions in the past. I accept these submissions.
The Respondent submitted that the whilst the Applicant has accepted responsibility for his actions on 4 April 2021 and has expressed contrition for his actions, he has not provided evidence to the Tribunal demonstrating the strategies he "would employ to ensure similar mistakes were not repeated". I agree. Although he has now completed a firearms safety awareness course, this is a basic requirement of a firearms licensee.
The Applicant's character referees each indicated that they had been made aware of the firearms and hunting offences he had been charged with as a result his conduct on 4 April 2021. Two of the referees (Philip Matar and Salih Filo) were childhood friends. Three referees (Eddie Dib, James Powell Dray and Jean Dominique Caboche) were former work colleagues or employers and one referee (Alan Matar) is the father of another referee (Philip Matar). Each reference spoke to the Applicant's love of the outdoors and hunting, his awareness of firearms safety, his remorse for the mistakes he had made, that such mistakes were out of character, and assurances that such mistakes would not occur again. In the circumstances I give these references reasonable weight.
The likelihood of risk is to be assessed by reference to prior conduct. The Applicant had held firearms licences for almost 20 years without incident prior to 4 April 2021, which is a significant consideration in determining the likelihood of future risk. However the Applicant's evidence that he was not required to undergo any safety awareness training prior to the incident, in all the years that he held a firearms licence, is of concern to the Tribunal because this is contrary to the legislative requirements. Whilst his referees speak positively about his firearms safety awareness and the unlikelihood of him reoffending, the Applicant's own evidence about his awareness of legislative requirements and the amount of research he undertook prior to this hunting trip to ensure he was compliant with all requirements contradicts those references.
Additionally, the Applicant stated at hearing that his genuine reason for holding a firearms licence was for target shooting and hunting, and that he wished to teach his children about firearms safety while taking his children hunting However he only applied for the genuine reason of "Target Shooting Club" in his licence application. Whilst he clarified at hearing that he meant to apply for both genuine reasons, I agree with the Respondent's submission that this again suggests that the Applicant does not appreciate the strict requirements of the Act, as he should have formally applied for the genuine reason of recreational hunting/vermin control if he intends to undertake that activity again.
Balancing up those considerations, the Tribunal must ere on the side of ensuring public safety. Any firearms licence is a privilege, not a right, and the continued enjoyment of that privilege is conditional upon the overriding need to ensure public safety. In considering whether an applicant should retain their privilege to hold a firearms licence, the Tribunal has held that where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: May v Commissioner of Police [2001] NSWADT 82.
I agree with the Respondent therefore that the Tribunal can have little confidence that the Applicant does not pose a risk to public safety in circumstances where he has so recently contravened provisions of the Victorian Act and other regulations that regulate the use of firearms and related activities, and has only recently undertaken the appropriate firearms safety awareness course. There would have been a mandatory refusal of his firearms licence application if he was given a conviction for the offences he admitted to pursuant to cl 5(1)(a) of the Firearms Regulation 2017.
In the circumstances it is not in the public interest for the Applicant to hold a firearms licence at this time. The correct and preferable decision is to therefore affirm the decision of the Respondent to refuse the Applicant's application for a firearms licence.

At a glance

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Judgment (4 paragraphs)

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Legislation Cited (3)

Cases Cited (12)

Cited By (1)