Commissioner of Police v Joseph - [2016] NSWCATAP 124 - NSWCATAP 2016 case summary — Zoe

NSWNSWCATAP

Commissioner of Police v Joseph

[2016] NSWCATAP 124

NCAT Appeal Panel|2016-03-02|Before: O'Connor AM

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2016-03-02

Before

O'Connor AM

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

Solicitors: Mainstone Lawyers (Respondent) File Number(s): AP 14/46368 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: Joseph v Commissioner of Police [2014] NSWCATAD 46 Date of Decision: 14 April 2014 Before: N Isenberg, Senior Member File Number(s): 133112

[2]

REASONS FOR DECISION

We have granted leave under the law applicable to the appeal (Administrative Decisions Tribunal Act 1997, s 113) to extend the appellant's appeal to the merits: see Commissioner of Police v Joseph [2015] NSWCATAP 9 (10 February 2015). The appellant is the Commissioner of Police. The respondent is Marsleno Joseph, an applicant for a firearms dealer's licence under the Firearms Act 1996 (the Act). (For ease of understanding, we will not use party descriptors any further in this decision. We will refer to the parties as Mr Joseph and the Commissioner.)
In 2007, five years before the date of the licence application under notice, Mr Joseph had been a participant in three events that involved the purchase of commercial quantities of tobacco products and phone cards from convenience stores, paid for by an electronic bank debit card linked to a bank account in his name that had no funds. The card worked despite the lack of funds because of a technical deficiency in the bank's security system. The police laid charges. The charges were withdrawn and dismissed without going to trial. The Commissioner considered that the information gathered as part of the investigation bore on the question of Mr Joseph's trustworthiness, honesty and integrity. It formed part of the Commissioner's case for refusing his licence application. The Tribunal decided not to consider it.

[3]

Legislation

The principles and objects of the Act are set out in s 3: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The 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 and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.
Part 5 (ss 43-49) contains the principal provisions regulating the issuance of firearms dealers licences. Section 43 provides: 43 Firearms dealers must be licensed A person must not: (a) carry on activities as a firearms dealer, or (b) possess a firearm in the person's capacity as a firearms dealer, unless authorised to do so by a firearms dealer licence. Maximum penalty: imprisonment for 7 years.
The Act (s 3) defines a firearms dealer as follows: "firearms dealer" means a person who, in the course of carrying on a business or in carrying out the person's duties as a club armourer: (a) manufactures, acquires, supplies, tests, repairs or converts firearms or firearm parts, and (b) possesses firearms or firearm parts for the purpose of doing anything referred to in paragraph (a).
The remaining provisions of Part 5 deal with a licence applicant's obligation to provide the Commissioner with information about any 'close associates' of the dealer (defined in s 4B, e.g. persons assisting him in the management of the business, or providing funds for the business), the exclusion of prescribed persons from involvement in a firearms dealing business, the obligations of a dealer in respect of the recording of transactions, the lodgment of quarterly returns, and the observance of additional requirements such as keeping records of movement of firearms in and out of stock, records of maintenance and repair, ensuring security of displayed firearms and controls on interstate transactions between dealers. The Firearms Regulation 2006, contains additional provisions of a similar kind, especially Part 4.

[7]

Hearing

At a directions hearing on 25 March 2015, it was agreed that our further hearing should proceed on the basis that it was not necessary again to traverse the first instance evidence. That had been done sufficiently in our previous appeal hearing(30 October and 12 December 2014). The further hearing would deal with the new evidence, essentially the previously excluded material relating to the 2007 events.
Material before Us: Because of the time this matter has been before the Tribunal and the hearings that have already occurred, we settled with the parties at the beginning of the hearing the precise scope of the material upon which each of them relied. There are 19 items (see document, 'Material Filed Commissioner of Police v Joseph').
The Commissioner's material commenced with the two appeal books that had been filed for our earlier hearing (item 1a and 1b). They comprised all documents that were before the Tribunal at first instance, and included a transcript of the hearing conducted 30 August 2013 and 2 September 2013. The exhibits included a statement by Mr Joseph made 29 May 2013. Mr Joseph had given oral evidence and was cross-examined to the previous Tribunal (transcript, 2 September 2013, pp 109-141). The material also included the police brief and all the COPS event records relating to the use of the Commonwealth Bank key cards. The parties re-filed their previous submissions to the Appeal Panel (items 2,3).
The Commissioner filed supplementary submissions (3 July 2015) and a single page letter warning Mr Joseph of the possibility of action against his personal firearms licence in light of the decision of the Appeal Panel in the present matter (items 3, 4). Mr Joseph filed 8 new documents (4 September 2015), which included testimonials as to character and additional submissions (items 6 to 12, and 18). The Commissioner filed 6 new documents (4 November 2015, items 13-17, and 17A and 19) which included supplementary submissions replying to Mr Joseph's submissions, and some further statements from police officers in reply to Mr Joseph's additional statement.

[9]

Considerations negative to Mr Joseph's application before the previous Tribunal

The Tribunal noted, without criticism, that the Commissioner had taken into account the following matters in deciding to refuse Mr Joseph's application: 1. his history between March 2008 and September 2011, when he was the subject of assaults, threats of significant violence and arson to the extent that the Commissioner was concerned about the risk to public because of his propensity to be involved in violent incidents (see Tribunal reasons [13]; 2. in the period January-February 2012, his making of numerous individual pistol permit applications, each relating to a single pistol, and giving 'target shooting' as his genuine reason, to accumulate a cache of 22 pistols, which activity predated his lodgment of his dealer's application on 12 March 2012 (see Tribunal reasons, [14]-[16]) 3. the inaccuracy of Mr Joseph's statements in the licence application form relating to close associates. There he said that a Mr W was a close associate, but at hearing he said it was a Mr K, not Mr W, and he had a 50/50 partnership with Mr K. There was no evidence that Mr K was adversely known to police. (See reasons, [42]) 4. the incident on 30 June 2012, when police were called to Mr Joseph's flat by his flatmate, and found him tied up, and being told that the 22 pistols had been stolen (reasons, [26]) 5. the circumstances of his acquisition of the 22 pistols, as disclosed at an interview after the robbery on 1 July 2012. He had acquired them, he said, from a Mr C. Mr C had been responsible for multiple breaches of the Act, and had his licence revoked. The Tribunal accepted Mr Joseph's evidence that once he became aware of Mr C's criminal history he 'backed off' from a proposed business association with him, and their relationship 'cooled'. (See generally, [44]-[47]).
Most significantly, the Tribunal made two specific adverse findings against Mr Joseph over his conduct in respect of his personal licence applications made in January and February 2012. The Commissioner emphasised these findings. They were: 1. that it was clear that he was by means of the individual applications seeking to build up a supply of firearms in anticipation of opening his own business, and he was not acquiring them for reasons of personal target shooting (reasons, [19]) 2. that the Tribunal was satisfied that the applicant had breached s 70 of the Act in providing information in his individual applications that was false and misleading in a material respect in respect of the reason for acquisition of each pistol ([24]).
As to the latter, s 70 provides: 70 False or misleading applications A person must not, in or in connection with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular. Maximum penalty: imprisonment for 14 years if the application relates to a pistol or prohibited firearm, or imprisonment for 5 years in any other case.
The Tribunal did not question the relevance of the negative considerations set out above. It disagreed as to the ultimate balance struck by the Commissioner when compared to the considerations favourable to Mr Joseph.

[11]

The New Material: the Events of March, 2007

The main focus of our hearing was the significance or otherwise to be attached to the facts sheets and witness statements relating to the events of 7-12 March 2007.. The Commissioner submitted that this material was very significant. It implicated Mr Joseph in conduct which impeached his honesty and integrity. The Commissioner submitted: 1. Irrespective of whether a prosecution ultimately ensued, the conduct recorded in this material remained, as there is evidence to support it 2. Mr Joseph has elected not to contradict the account.
The Commissioner emphasised that no application was being made to the Tribunal to draw an adverse inference from his silence in that regard. However, the Commissioner submitted that it remained relevant in assessing a licence application that there is cogent evidence that implicates Mr Joseph in questionable conduct and it is uncontradicted.
Against that background, the Commissioner then took us in detail to the conduct recorded in the material relied upon.
Counsel for the Commissioner stated that Commonwealth Bank key cards in the period under notice (February, March 2007) routinely malfunctioned in the around Monday 1am to 3am due to a technical failure, with the result that a card which connected to a closed account or one with insufficient funds would be recognised, and the amount entered would be processed. This is supported by Detective Harris's statement (item 17A).
The prosecution brief disclosed that Mr Joseph and another person went on 3 different nights to various service stations, and used a Key card account in the name of Mr Joseph with no money in it (referred to in the proceedings by the numbers 418). They purchased very large, commercial quantities of goods: (1) numerous packets of cigarettes; (2) numerous rechargeable phone cards at the prices charged by the service station and without discount. It was submitted that it was obvious that the quantities were so large that they could not have been for individual use. When Mr Joseph and his companion were arrested, Mr Joseph was found to have multiple identity cards.
Counsel for the Commissioner said that the reason the prosecution did not proceed was that it had no evidence that Mr Joseph knew that the account had no money in it, because of uncertainty as to whether a Commonwealth bank letter had been sent some months which informed him that his account was out of funds. There was nothing in the documentary material to support that account. We will simply proceed on the basis that there is no known explanation for the withdrawal of the prosecution.
Counsel for the Commissioner then undertook a close examination of the conduct revealed by the material. He submitted that its relevance to the present proceedings was that Mr Joseph had engaged in questionable conduct of a financial character. Mr Joseph's counsel submitted that no inference adverse to Mr Joseph should be drawn from the uncontested facts in relation to the state of the linked account.
In our view, it is plain that Mr Joseph was involved in questionable conduct on the nights in question. He was purchasing commercial quantities of the items mentioned, and if he did not actually know that his card was short of funds, in our view he ought to have known, in circumstances where the linked account had been in overdraft from 1 June 2006 to 15 September 2006, and was formally closed by written notice from the bank on 15 November 2006.
Further, the purchases were made from service stations late at night. They involved the payment of the usual retail price per item, with no discount for the commercial quantities involved. The operators at the service station were told the applicant and his companion had to stock a shop that was about to open. Understandably, the operators were highly suspicious of the conduct.
In our view, this material is clearly relevant to the assessment of Mr Joseph's fitness and integrity, and to the public interest in granting him a dealer's licence. The purchases were on a scale that was of a commercial character. We infer that Mr Joseph had a business purpose of some kind in making the purchases, and must have intended to trade in the goods in some way. We do not need to get involved here in the further question of whether he had a criminal intent of the kind necessary to establish a criminal offence.

[13]

Fitness Discretion

Similarly, fitness is an attribute which will vary in its application according to the nature and significance of the licence. The following passages from the leading authorities have often been noted in decisions of the Tribunal: 'The question of 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.' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Mason CJ at [63]) 'The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke.' (Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 per Dixon CJ, McTiernan and Webb JJ at 156.
An applicant for an individual firearms licence in respect of a particular class of weapon may be able to satisfy the Commissioner as to their fitness simply by demonstrating that he or she has no adverse criminal history, is a sporting shooter and, belongs, for example, to an approved gun club, and has the support of the gun club secretary, or has some other genuine reason for possessing the weapon supported by evidence of need with satisfactory corroboration. But a dealer's licence requires more, as we see it.
While the applicant may be a person of good character and 'fit' to be granted an individual licence, he or she may not be presently 'fit' to be granted a dealer's licence, because of, for example, a lack of any, or any directly relevant, business experience - say as an employee of a licensed dealer or as an employee in some other regulated environment. As to this matter one of the testimonials (Mr Karavas) spoke of his involvement in the business, Son of a Gun, in the four years to the date of the testimonial (August 2015). No issue has been raised in the Commissioner's material as to his competence in running that business. We accept that he has business experience of some relevance to his present application. But that is not a regulated environment.

[14]

Assessment

Firearms dealers provide the only lawful conduit for the passage of weapons to ordinary members of the community. They must carry out their responsibilities with scrupulousness, and strictly observe the manifold business requirements to which they are subject.
In our view, and as reflected in the detail of the firearms law, the public has a high interest in ensuring that firearms dealers licences only be granted to persons in whom trust and confidence can be placed in relation to a range of matters. Those matters include: their business competence, their ability to implement complex standards in relation to such matters as security of weapons, recordkeeping and reporting to authorities, and their capacity, where necessary, to deal appropriately and confidentially with those authorities, in particular the police.
It may well be that an applicant is, in his or her day to day life, a person of good character, or at the least a person about whom nothing significantly adverse is known. There will be cases, we consider, where persons of good character in that sense nevertheless would not be acceptable for the grant of a dealer's licence, having regard to the public interest in matters of the kind to which we have referred.
In our view, Mr Joseph's involvement in the events of March 2007 raises doubts as to his fitness and integrity, and we have no explanation from him that might allay those doubts.
More importantly, we differ strongly from the previous Tribunal in the ultimate view it formed about Mr Joseph's conduct in the period January-February 2012 in connection with his individual licence applications.
We have reviewed the Tribunal's account of the reasons Mr Joseph gave for providing target shooting as an explanation for each of the individual pistol permit applications. We have considered his statement, and evidence before the Tribunal in 2013.
In our view, Mr Joseph's subjective belief as to why he filled out the forms in the way is not a sufficient basis upon which to set to one side his conduct in that regard.
The making of applications for the possession of firearms is one of great sensitivity for the safety and welfare of the community.
A fair minded, reasonable applicant would, we think, have recognised that the lodgement of numerous pistol permit applications over a short period could not reasonably be justified by reference to the need to pursue an interest in target shooting. A sporting shooter could not, we consider, have reasonably believed that there was any justification for a series of applications. He or she should have realised that without having to be told it was wrong by a police officer (Mr Joseph's explanation for desisting eventually, and proceeding with a dealer licence application). This conduct, in our view, casts considerable doubt on the likelihood that Mr Joseph can be trusted to uphold the standards of integrity and accountability required of a firearms dealer.
There are other aspects of the evidence considered on the earlier occasion that cause us concern. We have a more negative view than the previous Tribunal in relation to the events of the evening of 30 June 2012. On his account, Mr Joseph was the victim of offences of great seriousness. There is no explanation as to why he was keeping at home at that time so may pistols. Nor is there any explanation of the methods of safekeeping that he had in place. In our view, there is an air of implausibility about the account he gave to the police in his statement of 1 July 2012 about the events of the previous evening. As the Commissioner submitted, the findings made by the Tribunal at paras [19] and [24] were adverse to Mr Joseph. We regard them as significant, especially the finding that he had contravened the Act in filling out the pistol permit applications in a false and misleading way.
Mr Joseph brought to his application little, in our view, that would warrant confidence that he would carry out his duties with scrupulousness, and have the capacity to strictly observe the manifold requirements to which we have referred. He had used his position as a licensed sporting shooter to accumulate pistols. He had filled the application forms out in a misleading way. His association with violent activities, and the air of implausibility that surrounded his explanation of the events of 30 June 2012 stood against him. The events of 2007 are also relevant. We agree with the Commissioner that Mr Joseph's lack of any satisfactory explanation for those transactions counts against his application.
There are also the adverse findings of the Tribunal below, with which we agree, as to his honesty and rectitude the what he said in his individual pistol permit applications. In our view, they have considerable weight.
We also attach weight to the other negative considerations to which the previous Tribunal referred uncritically. We would give them greater weight that it did.
In reaching these conclusions, we have had regard to the testimonials on which Mr Joseph sought to rely, lodged 4 September 2015. They were from: Fr Botros of the Coptic Orthodox Church; Sgt Mirabito, a sergeant at Kings Cross; and Mr Karavas, Chairman, St Mary's Town Centre. (Sgt Mirabito subsequently withdrew his reference (7 October 2015), on the basis of alleged non-disclosure of certain matters by Mr Joseph; to which Mr Joseph replied by statement dated 10 November 2015. There is also a statement from Sgt Fitzgerald (18 December 2015) responding to aspects of Mr Joseph's statement. We did not need to address the particulars of that dispute.) This material did not assist us in relation to the specific attributes that we see as involved in the assessment of fitness to carry on a licensed firearms dealers business.
There is no other additional material before us belonging to the period since the Commissioner made the decision under review (4 April 2013) bearing on Mr Joseph's fitness.
We are satisfied that it is not in the public interest for Mr Joseph to be granted a firearms dealers licence. We also consider that Mr Joseph has not demonstrated the fitness of character required for a firearms dealers licence.
The Commissioner's decision remains the correct and preferable one in the circumstances.