Commissioner of Police v Joseph

Legislation

1. 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.
2. 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.
3. 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).
4. 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.

Licence Application

1. On 12 March 2012 Mr Joseph, then aged 30, applied under the Act for a firearms dealers licence, with a view to trading under the name 'Son of a Gun'. His application included certifications of his membership of a gun club (SSAA St Marys Pistol Club) and a certificate of completion of a safe shooting course in respect of firearms belonging to categories A, B, C, D and G. He stated that he intended to trade from his private residential address in Mt Druitt. He subsequently advised (5 April 2012) that he would trade from commercial premises located in Queens Street, St Marys. Since September 2012 has been in business at that site under the name 'Son of a Gun'. He sells shooting and hunting accessories such as scopes, spotlights, clothing and archery equipment. No licence is required to sell those goods.
2. In his application, he stated that he wished to trade in all types of weapons identified by the application form, i.e. categories A, B, C, D and H; as well as weapons falling into the category of 'prohibited firearms' (which may be permitted subject to various restrictions). In his application, he also identified a close associate who would have a financial interest in the proposed dealership.
3. The Commissioner's delegates sought further information from Mr Joseph, especially in relation to the adequacy of the proposed premises, and the progress of his development approval application to the Penrith Council. The delegates inquired into Mr Joseph's background and undertook inspections of the proposed premises. They examined the history of the person named as a close associate. The planning application was approved in November 2012.
4. By decision dated 4 April 2013, the Commissioner's delegate refused the application, on two grounds: the application was not 'in the public interest' (see s 11(7)) and the proposed premises were not suitable for a firearms dealership (see s 11(8), and Firearms Regulation 2006, cl 37(1)(b)).

Review Proceedings

1. On 18 April 2013, Mr Joseph applied to the Tribunal for review of the decision. For the review hearing, the Commissioner relied on a further ground for refusal - that Mr Joseph was not a 'fit and proper' person to be granted a dealer's licence (see s 11(3)(a)).
2. In its decision of 14 April 2014 the Tribunal set aside the Commissioner's decision. It rejected each of the Commissioner's grounds for refusing the application.
3. The Commissioner's appeal had three grounds. We upheld Ground 1 which dealt with the exclusion of the material related to the events of 2007, as explained at the outset of this decision. We rejected Grounds 2 and 3 of the Commissioner's appeal. The Commissioner had contended that the formation of a satisfaction as to whether a applicant is a 'fit and proper person' (s 11(3)) and the formation of a view as to whether issuance of a licence would be 'contrary to the public interest' were both decisions in relation to jurisdictional facts, and therefore, because of their jurisdictional character, they can be revisited on error of law grounds in an appeal.
4. We also upheld Ground 4 of the Commissioner's appeal, to a degree. We accepted that the Tribunal's reason for rejecting the Commissioner's concerns over Mr Joseph's past involvement in violent confrontations were not adequate. See our reasons at [53], [54].
5. The Commissioner's appeal did not put in issue the Tribunal's rejection of the ground of decision that related to the fitness of the proposed premises. The Commissioner no longer relies on that ground.

Our Further Consideration of the Material

1. As noted, now in contest is the Commissioner's decision refusing Mr Joseph's firearms dealers licence application pursuant to s 11(3)(a) or pursuant to s 11(7).
2. Those provisions state: (3) A licence must not be issued unless: (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

Hearing

1. 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.
2. 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').
3. 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).
4. 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.

Role and Function of Firearms Dealer

1. Firearms by their nature pose a significant threat to the safety and welfare of the community. Their possession and distribution is, understandably, carefully regulated. The 1996 reforms gave rise to a high level of national uniformity in the State licensing systems. Common principles and common regulatory approaches were adopted.
2. The law draws clear distinctions between grades of licensees. The one of importance in these proceedings is the distinction between a personal user of a firearm and a dealer in firearms. The law contains a hierarchy of types of weapons. In the case of applicants for licences for personal use, the law sets out various 'genuine reasons' for which weapons may be possessed. Special provision is made for sporting club uses, and the keeping of weapons by sporting clubs.
3. In our view, a dealer has a critical role in ensuring that the values and goals of the firearms legislation are upheld. Dealers must be able to be trusted by the community as persons of honesty and integrity, as persons who will be candid and open in their dealings with police, and conscientious in adhering to the strict requirements of the legislation in a wide variety of administrative matters, such as security of premises, safekeeping of weapons, bookkeeping, and transparency of transactions.
4. The Commissioner depicted the dealer as sitting at the 'apex' of the regulatory system. The Commissioner emphasised the central role played by firearms dealers in the orderly and lawful circulation of firearms in the community. We agree with the thrust of the Commissioner's submissions in this regard.

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

1. 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]).
2. 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]).
3. 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.
4. 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.

Considerations favourable to Mr Joseph before the previous Tribunal

1. In reply Mr Joseph emphasised the favourable conclusions of the Tribunal. We will set out those conclusions: 62 I have found that there no person who is a close associate of the applicant who is not fit and proper to hold a firearms dealers licence or who may exert influence over the applicant in the business. I have also found that, on balance, the premises are suitable for use as a firearms dealership. 63 While the applicant has been involved in violent confrontations I do not accept that this necessarily leads to a conclusion that he, in particular, may be targeted by criminals. Notwithstanding the principle of Ward, in my view, any firearms dealership, especially if it sells firearms considered attractive by the criminal milieu, is at risk. Inevitably this would lead to the absurd result that there could be no such dealerships. 64 I accept that the applicant previously demonstrated lack of understanding of the responsibilities and obligations as a holder of a firearms licence. I have accepted his explanation in relation to his applications. I have also accepted that while the applicant completed a number of firearms applications incorrectly, he had informed police he was collecting the firearms for the purpose of his business. 65 I also have accepted that the applicant could easily have disposed of the rusted air rifle without advising police but chose otherwise, and to me, this demonstrates an understanding of his role with respect to firearms. 66 I have placed significant weight on the references that were provided on behalf of the applicant.

The New Material: the Events of March, 2007

1. 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.
2. 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.
3. Against that background, the Commissioner then took us in detail to the conduct recorded in the material relied upon.
4. 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).
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.

Public Interest Discretion

1. The following observations of the Appeal Panel in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 have often been noted in relation to the nature of a public interest discretion in licensing schemes of the present kind. 25 The "public interest" is an inherently broad concept giving [the administrator] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
2. As noted in Director of Public Prosecutions v Smith [1991] 1 VR 63,the 'public interest' is: 'a term embracing matters, among others, of standards of human conduct and of the functioning government and government instrumentalities.... The interest is therefore the interest of the public as distinct from the interest of an individual or individuals'

Fitness Discretion

1. 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.
2. 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.
3. 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.

Assessment

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. The making of applications for the possession of firearms is one of great sensitivity for the safety and welfare of the community.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. The Commissioner's decision remains the correct and preferable one in the circumstances.

Order 1. The order of the Tribunal made 14 April 2014 is set aside. 2. The decision under review is affirmed.

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: 09 June 2016