The Applicant, Charbel Daher, held a Category AB licence under the Firearms Act 1996 (the Act) from 2013 for the genuine reasons of 'Sport/Target Shooting' and 'Recreational Hunting/Vermin Control', and a Category H licence from 2016 for the genuine reason of 'Sport/Target Shooting'. The Applicant's firearms licence was suspended on 17 April 2018 after he was charged with common assault and was subject to an interim Apprehended Violence Order (AVO). The charge and the AVO were ultimately dismissed, but by that time, the Applicant's firearms licence had expired.
On 3 March 2019 the Applicant applied for a Category ABH firearms licence, for the genuine reason of 'Sport/Target Shooting' but his application was refused. The decision was affirmed on internal review and the Applicant now seeks review by this Tribunal.
[2]
Legislation and relevant authorities
The general principles of the Act are set out in s.3 of the Act:
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 sales 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.
Section 11(3) provides that a licence must not be issued unless the Commissioner (and hence the Tribunal on review) 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. Further, s 11(4) provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of a number of matters including the applicant's way of living or domestic circumstances. Relevantly, a licence must not be issued if an applicant has, within the period of 10 years before the application for the licence was made, been convicted of offences specified in the Firearms Regulation 2017 (Regulation) or who has, at any time within 10 years before the application for the licence was made, been subject to an AVO (other than an order that has been revoked).
Further, s 11(7) provides that a licence may be refused if it is considered that issue of the licence would be contrary to the public interest.
The Regulation imposes many obligations on a licence holder associated with their firearms licence. These include obligations, presumably aimed at having licensees maintain a skill level, according to the type of licence and the genuine reason for which the licence is held.
Clause 106 of the Regulation requires the holder of a category H (sport/target shooting) licence to be a member of at least one approved pistol club and must during each compliance period for such a club of which the person is a member participate in a minimum of 6 competitive shooting matches of an approved pistol club
Similarly, cl 107 requires the holder of a licence issued for the genuine reason of sport/target shooting (not being a category H licence) must be a member of at least one approved shooting club (other than a pistol club) and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club (other than a pistol club) whether or not of a club of which the person is a member.
Clause 108 relevantly requires the holder of a licence issued for the genuine reason of 'recreational hunting/vermin control' to be a member of at least one approved hunting club and must, during each compliance period for such a club of which the person is a member, participate in no less than 2 hunting club events.
Section 63 of the Administrative Decisions Review Act 1997 provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the [Commissioner] is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material so as to either confirm the original decision, vary it, or set it aside and substitute another.
[3]
Evidence
In addition to the s 58 documents, I had before me material summonsed by the Respondent from Sporting Shooters' Association of Australia Inc (SSAA) and Falcon Pistol Club. The Applicant provided a statutory declaration dated 29 September 2020, and gave evidence.
[4]
Respondent's position
The Applicant's licence was suspended on the basis of his domestic violence assault charge. In refusing his fresh application the Respondent relied on the Applicant having been "involved in an incident involving violence, with another person who resides at your residential address", and citing s 11(4)(a) of the Act.
In the Internal Review the Respondent no longer relied on s 11(4)(a). Instead the Respondent formed the view that it would be contrary to the public interest for the Applicant to hold a firearms licence: per s 11(7). The Respondent also relied on the Applicant's apparent failure to comply with participation requirements.
At the hearing the Respondent relied on the Applicant's conduct which gave rise to the assault charge in support of its contention that the Applicant is not a fit and proper person to hold a firearms licence. It was also contended that the Applicant had failed to inform the Respondent, pursuant to his obligation under Reg 15 that his genuine reason could no longer be established because he had not undertaken the necessary number of shooting/hunting activities and because he was not a member of a shooting organisation. The Respondent also invited attention to the Applicant's poor driving record. Other than in relation to the alleged assault it was unclear if the Respondent relied on these matters in respect of the fit and proper person test. It was also unclear if the Respondent contended that it was not in the public interest that the Applicant hold a firearms licence.
[5]
Fit and Proper Person test
Section 11(3)(a) of the Act states that "a licence must not be issued unless the Commissioner (and hence the Tribunal on review) 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".
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Mason CJ explained, at 380, 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.
Toohey and Gaudron JJ said at 380:
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.
In Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that when considering if an Applicant is a fit and proper person, their conduct should be considered and whether that conduct is such that the Applicant can be trusted to have possession of firearms without presenting a danger to the public safety or peace.
[6]
The alleged assault
The incident that gave rise to the Applicant's license being suspended was an alleged assault in April 2018 by the Applicant upon his brother, Joseph, with whom there had been a history of discord. The incident arose out of a trivial matter - the way that Joseph had parked his car. Words were exchanged and the Applicant allegedly used his foot to stomp on Joseph's thigh/upper leg whilst he was seated. Joseph called Police and the Applicant was charged with common assault. An interim AVO was also imposed on the Applicant. The Applicant pleaded not guilty to the charge of common assault although and it was contended on the Applicant's behalf, that there was no physical contact. He was subsequently acquitted at the hearing conducted before the Sutherland Local Court on 24 August 2018.
The Magistrate then proceeded to deal with an application for a final AVO. The Magistrate articulated the test to be applied - see transcript p 68:
… I have to be satisfied that the person has reasonable grounds to fear and in fact fears the commission by the other person of a domestic violence offence against them or the engagement by the other person of (sic) conduct in which they are intimidated or stalked, being conduct sufficient to warrant the making of the order.
Based upon the evidence heard in the criminal matter the Magistrate stated, at page 71 of the transcript:
On the balance of probabilities, noting the immediate complaint, noting what was contained in the DVEC and notwithstanding what I would accept was an exaggeration at the time of the triple-0 call, I would be satisfied on the balance of probabilities that there was, in fact, physical contact between the defendant and Joseph Daher.
I consider on the balance of probabilities an assault did take place and, in those circumstances there is no suggestion that hostility between these two brothers is not ongoing, noting the defendant's evidence.
In those circumstances, I do propose to make an ongoing apprehended violence order on a final basis.
An AVO was made for 12 months from that date, but, according to the Applicant's solicitor (who represented him in the proceedings) it was overturned on appeal in the District Court in January 2019. The Respondent did not accept that the AVO was overturned on appeal, only that it was "revoked", and no evidence was available one way or the other. I accept Mr Clowry's account, as he represented the Applicant in those proceedings. No information was available, however, as to the reason the AVO was overturned.
It is clear from Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCAT 31 at [62]-[64] that, even though the charge of common assault was not proved beyond reasonable doubt, the Tribunal is to take into account matters indicating criminal conduct even though the particular offence was dismissed. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70 at [30].
In Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20], the Appeal Panel also observed:
It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative decision. The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, … the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion.
In applying Mercer, I considered the reasons that the charge was dismissed. In finding the Applicant to be not guilty of the charge the Magistrate discussed the inconsistencies in Joseph's evidence and that of attending Police.
A person's fitness is to be considered in the light of the activities that the person will undertake: see In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7, Re Percival and Australian Securities Commission (1993) 30 ALD 280, at 290, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794, at [41]. There was no suggestion that the alleged assault involved a firearm. I accept though that the information about the offence may be indicative of some volatility in the Applicant at that time and in circumstances where, with a history of discord with his brother, he over-reacted to something his brother had done. The information about his conduct does not lead me to a view that the Applicant would use a firearm if provoked.
The conduct also does not lead me to a view that the Applicant is not a fit and proper person to hold a firearms licence.
[7]
Compliance with licence condition to participate in annual shooting activities
The Applicant obtained a licence for Category AB firearms in June 2013 for the genuine reasons of 'sport/target shooting' and 'recreational hunting'. The Respondent submitted that the Applicant, while then licensed, had failed to meet his obligations under cl 107 of the Regulation which requires holders of a licence issued for sport/target shooting, to participate in 4 shooting activities each year. Further, it was contended that he had also failed to comply with cl 108 which requires holders of a licence issued for recreational hunting, to participate in 2 hunting activities each year.
As to the Applicant's category H firearms licence, the Respondent submitted that the Applicant had failed to comply with cl 106 of the Regulation which requires the licence holder to participate in at least 6 competitive shooting events each year.
The Applicant relied upon his membership with the SSAA. The SSAA provided the Respondent with a summary of its attendance records in respect of the Applicant. According to the summary dated 5 June 2020 the Applicant had attended no activities in 2012-13, one target and one hunting activity in 2013-2014, no activities at all in 2014-15, 3 target and one hunting activity in 2015-16, and no activities at all since that time.
As to the Applicant's category H firearms licence issued in August 2015 the Applicant relied upon membership with the Falcon Pistol Club (Falcon Club). The Respondent summonsed the records of the Falcon Club regarding the Applicant's participation records. The records, under covering letter of 2 November 2020, were in a poor state but show the Applicant signed attendance records on 3 occasions, but it was unclear if this was, as the Applicant said, "like an RSL", and did not necessary indicate that he in fact shot on those occasions. His membership lapsed while he was subject to the charge and AVO. He rejoined in February 2019, although he did not have a firearms licence at that time. It is understandable that he did not attend, as noted in the records. The Respondent observed that the club secretary, in the covering letter, wrote that the Applicant's membership had been cancelled and he would not be allowed to re-join the club "due to his lack of attendance and interest in the sport". While I accept that the club may be disinclined to have the Applicant as a member because of his failure to participate, certainly in recent times, his failure is entirely understandable; perhaps it would be more concerning if the club permitted his attendance in circumstances where he did not have a licence.
The Applicant was adamant though that at all times prior to his licence being suspended he had fulfilled his mandatory shooting activities obligations.
It was the Applicant's position that the SSAA attendance record is incomplete and does not accurately reflecting his attendance and/or participation in the mandatory shooting activities. In support of this contention the Applicant produced bank records which demonstrate multiple EFT transactions for shooting activities, some of which are not recorded in the SSAA records.
The EFT transactions record:
1. 2013/14
1. 31 July 2013- Impex International PI - Condell Park Fire Range (pistol)
2. 22 July 2013- Cecil Park Clay Target - shotgun target practice
3. 03 September 2013 - Cecil Park Clay Target - shotgun target practice
1. 2014/2015
1. 20 October 2014- Cecil Park Clay Target - shotgun target practice
1. 2015/2016
1. 21 September 2015- Cecil Park Clay Target - shotgun target practice
2. 9 November 2015 Cecil Park Clay Target - shotgun target practice
3. 10 August 2015- SSAA Glendenning - long arm practice
4. 1 March 2016 Auburn Shooting Acad(amy) - Auburn gun club - (pistol)
It is clear that these EFT payments are at odds with the records of SSAA and the Falcon Club. I consider that the Clubs' records to be unreliable.
The Applicant's evidence was that, with a view to fulfilling his mandatory shooting activity requirements, in addition to shooting with the SSAA and the Falcon Club, he regularly participated in shooting activities at other clubs. He said, for example, that he was a member of Cecil Park Shooting Club (Cecil Park). The Respondent was critical of the Applicant for not producing records from that club. I observe that the Respondent had summonsed the records of both SSAA and the Falcon Club and was on notice, since the filing of the Applicant's statutory declaration on 30 September 2020 that the Applicant claimed he had undertaken many activities at Cecil Park.
In addition, the Applicant said, some activities were paid for in cash, and he was given a receipt as proof of participation. He said he was advised by the clubs he attended to retain this receipt as proof of participation. He said he kept all of these receipts in a folder at the family home but when he was obliged to quickly move house due to the criminal charge and the interim AVO, he lost this folder. He said in his evidence that he had first stayed in a hotel, and then with friends, until he went elsewhere. He said he attempted to contact a number of the clubs that he attended seeking further information in relation to his attendance, but was unable to obtain any further information, as they were not operating due to COVID. I accept his explanation for his inability to produce receipts.
As to the EFT records in relation to the purchase of ammunition he said that he also completed a number of recreational hunting activities that have not been recorded in the SSAA records. These hunting activities always took place shortly after he purchased ammunition, which from his EFT records occurred on the following dates:
1. 20 December 2013 - International C Bankstown
2. 4 November 2015 Horsley Park Gunshop
3. 8 February 2016 Safari Firearms Bexley
4. 1 March 2016 Safari Firearms Bexley - purchase of ammunition for hunting activity
5. 9 June 2017 Safari Firearms Bexley
The Applicant made the point that there would be no reason for him to purchase ammunition if he did not intend to discharge it at a shooting activity. There was no evidence that he might have purchased ammunition for other persons, or that he has any undesirable associates. He said that the recreational hunting activities occurred at three different facilities in the Goulburn and surrounding areas, as well as once in Mudgee. He said he paid for these hunting activities in cash, as that was the preferred payment option of the facilities. He recalled that after he completed each hunting activity, he telephoned the SSAA and told them of his participation in this activity. He did not receive any receipt from the SSAA in relation to this attendance, and assumed that it would be recorded on his file as participation in mandatory 'recreational hunting' activity. I have already found the SSAA records to be unreliable.
The Applicant was cross-examined about whether he had engaged in 6 "competitive shooting matches" in accordance with cl 106(1)(a). The Applicant said he did not think he was good enough to "go in competitions". He clarified though that in the activities in which he participated scores were kept and the results were recorded. That satisfies the definition of "competitive shooting match".
I find there is sufficient evidence to be satisfied on balance, that the Applicant, while previously licensed, undertook the requisite number of activities to meet his 'genuine reason' obligations under the Act and Regulation.
[8]
Traffic Record
The Respondent submitted that the Applicant has had a poor driving record since the issue of his provisional licence in 2009. Mostly, the Applicant has speeding offences and other offences such as using a mobile phone and disobeying traffic lights. His licence was suspended once, and he drove while disqualified. In May 2020 the Applicant committed a further speeding offence.
The Respondent submitted that such a record is indicative of the Applicant's irresponsible attitude towards compliance with regulatory schemes such as that created and imposed by the Act and Regulation, and relied on CXJ V Commissioner of Police, NSW Police Service [2017] NSWCATAD 39, (CXJ) and more recently, Lee V Commissioner of Police [2020] NSWCATAD 144 (Lee).
The Applicant submitted that CXJ v Commissioner of Police [2Q17] NSWCATAD 39 should be distinguished as, there, the applicant in addition to a very poor traffic record had a substantial criminal record, including drug offences, and break enter and steal for which he served periodic detention, and a charge of attempted murder, and allegations of assault. The Applicant, by comparison, has only criminal offence - drive while disqualified. I agree with the Applicant's submission that, clearly in CXJ, the Tribunal relied heavily on CXJ's criminal record in affirming the application for review; the traffic record, by comparison appears to have been a relatively small consideration.
In relation to Lee, I observe that the applicant there had a protracted history of firearms related contraventions, and had pleaded guilty to the charge of operating an unapproved shooting range and two charges of using a firearm on an unapproved shooting range. He was also the subject of a range of investigations regarding the illegal sale of fireworks and the Applicant was, subsequently, warned on two separate occasions for illegally selling fireworks. The Senior Member considered these matters had already been adequately addressed in a previous application, but it seems to me, those matters could not have been completely disregarded, even though the Senior Member did not rely on those matters.
The Applicant's solicitor pointed out that none of the Applicant's traffic offences are "major offences" as defined by the Road Transport Act 2013, and that while the Applicant could be said to have a "lead foot", his overall record, while poor, should not be afforded great weight.
It is well established that traffic rules are designed for public safety: see Tannous v Commissioner of Police [2011] NSWADT116, at [32] and [37]. In Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, SM Scahill noted at [81] that:
The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety.
I accept that the Applicant has a poor traffic history. I observe though, as the Applicant's solicitor pointed out, many of the Applicant's driving offences were known when the Applicant first applied for his AB firearms licence in 2013 and in 2016 when he applied for his Category H firearms licence and did not prevent a licence being issued at that time. I consider that the Applicant's past poor driving record is therefore to be afforded little weight.
[9]
Conclusion in relation to fit and proper person test
In summary, therefore, I do not accept that the Applicant fails the fit and proper person test.
[10]
Public Interest Test
The expression "public interest" is not defined in s 11(7) or elsewhere in the Act, but it is well established that the Tribunal will have regard to the context in which the term appears: CIC Insurance Limited v Bankstown Football Club (1997) 187 CLR 384, 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing.
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, the Appeal Panel said, albeit in the context of the licensing regime for the security industry, that the 'public interest' is an inherently broad concept giving the Commissioner, and the Tribunal on review, the ability to have regard to a wide range of factors in choosing whether to exercise discretion adversely to an individual: at [25]. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
The 'public interest' allows a consideration of 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: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 at [33].
DP Hennessy in Ward v Commissioner of Police, New South Wales Police Service [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. 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: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66]. Since Ward, DP Hennessy cautioned against applying that language in a mechanistic way: AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
Following the approach of JM Frost in AMJ v Commissioner of Police NSW Police Force [2012] NSWADT 228 I consider there to be several factors that weigh in the Applicant's favour.
Firstly, although the Applicant was charged with a serious offence, it did not involve a firearm.
Secondly, the Applicant has never been charged with a firearms offence despite holding various firearms licences for several years. There was no evidence that his holding a licence has ever created any danger.
Thirdly, the Applicant has no criminal record, nor is there any evidence of association with criminals.
Fourthly, although the Applicant has a poor traffic history, I have already observed that that history does not, contrary to the Respondent's submission, indicate a current ongoing disregard for licensing law generally, even though the traffic laws and the firearms regulatory scheme are both aimed at ensuring public safety. I do not consider there is a current disregard for the firearms regulatory scheme.
Fifthly, as to the concerns about the Applicant's genuine reason for seeking a firearms licence, there is no evidence to suggest any subterfuge by the Applicant, or indeed, misunderstanding of his obligations under the Act.
Sixthly, the Applicant said he has had difficulty in joining another shooting club, but, for the reasons discussed above, I attach little weight to the view of the Falcon Club secretary that the Applicant would not be allowed to re-join the club "due to his lack of attendance and interest in the sport". Nonetheless, it is a requirement that he be a member of a club.
Finally. the Applicant's evidence was that, following the charge being laid, Police seized his firearms, but did not take his ammunition, presumably as they should have. It was unchallenged that the Applicant had, of his own volition, contacted Police to advise that he was bringing in his ammunition. I consider such conduct to represent a significant degree of civic-mindedness, especially given the clear expense he had incurred in purchasing the ammunition in the first place, as demonstrated by the EFT records.
[11]
Conclusion as to the public interest test
The underlying principles of the Act stated in s 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. In all the circumstances, I am reasonably satisfied, based on public interest grounds, that there is no reason for the Applicant not to hold the firearms licence for which he has applied.
[12]
DECISION
The Respondent's decision is set aside and the Tribunal substitutes a new decision to grant a category ABH firearms licence to the Applicant, for the genuine purpose of 'sport/target shooting' subject to production, to the Respondent, of evidence of his membership of an approved shooting club.
[13]
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: 26 November 2020