El-Ashrafi v Commissioner of Police, NSW Police Force

The Evidence

1. An internal review decision upheld the original decision to revoke the applicant's firearms licence' on the grounds that: 1. there are reasonable grounds to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of the Applicant's way of living or domestic circumstances: see ss 11(4)(a) and 24(2)(a) of the Firearms Act 1996; and 2. it is not in the public interest for the Applicant to continue to hold the licence: see s 24(2)(d) of the Act along with clause 19 of the Firearms Regulation 2006 (Regulation).
2. The respondent raises a number of grounds as to why the decision to revoke the licence should be affirmed and the Tribunal will deal with each in turn.

The Applicant's Traffic History

1. The respondent refers to the applicant's history of continual and significant traffic infringements between the years 2004 to 2014. A traffic record report was provided with the documents which were produced by the respondent pursuant to s58 of the Administrative Decisions Review Act (NSW) 1997 which identifies the following offences:

• Negligent driving in December 2004.
• Not keeping left of dividing line in June 2005.
• Exceeding the speed limit by more than 30 km/h but not more than 45 km/h in April 2006.
• Exceeding the speed limit by not more than 15 km/h in June 2006.
• The applicant's driver's licence was suspended for 6 months in July 2006.
• Not complying with the conditions of licence by not displaying P plates in November 2007
• Driving while using a hand held mobile phone in July 2008.
• Driving while using a hand held mobile phone in May 2009.
• Exceeding the speed limit by more than 15 km/h but not more than 30 km/h in May 2009.
• For a burnout in June 2009.
• In September 2009 the applicant was subject to a four month good behaviour period.
• Exceeding the speed limit by more than 10 km/h but not more than 20 km/h in November 2009.
• Negligent driving in November 2009 .
• The applicant's driver's licence was suspended for five months in January 2010.
• Driving whilst using a hand held mobile phone in March 2010.
• Exceeding the speed limit by more than 10 km/h but not more than 20 km/h in January 2012
• Not wearing a seatbelt in January 2014.
• The applicant's driver's licence was suspended for six months in March 2014
• Driving whilst suspended in April 2014
• Exceeding the speed limit by more than 45 km/h in June 2014

1. The respondent made submissions that these matters, over a significant period of time, demonstrate a continued disregard for the law and inability to comply with laws designed for public safety.
2. The applicant makes submissions that the driving history is completely irrelevant to the decision to revoke and that the matters and should be given no consideration whatsoever. They suggest that there is no correlation between the applicant's driving history and concerns regarding his ownership of firearms. They make submissions that in the event that the Tribunal should consider the history relevant, the applicant relies on a presumption of rehabilitation as the last traffic incident occurred in June 2014, over 2 years ago.

Sexual assault - December 2008

1. The respondent alleges that the applicant engaged in acts of violence. They refer to charges in relation to a sexual assault which is said to have occurred in 2008. The applicant was charged with three counts of assault with act of indecency under s61L of the Crimes Act 1900 (NSW) and three counts of sexual intercourse without consent under s61I of the Crimes Act 1900 (NSW) in March 2009. Fact sheets and statements from the police in relation to the charges were before the Tribunal. The charges related to a report that was made to police by a sixteen year old at the time. The applicant acknowledged to police that the sexual intercourse had occurred but said it was consensual.
2. At the time, the complainant gave a statement to police describing the assault and was examined by doctors. Medical reports were before the Tribunal in the statement of Detective Senior Constable Pessotto. Bruising that could be consistent with a sexual assault was reported. The complainant identified the applicant as the person who assaulted her from a photo line-up. The police also alleged that the applicant introduced himself as Adam prior to meeting the complainant. Following her complaint to police, the complainant stated that she received a phone call from the applicant in which he threatened her for going to the police and he threatened "Well if it keeps going on, your gonna die"
3. The DPP did not proceed with the charges because the complainant decided that she did not want to give evidence in court. In her statement to the Tribunal, Detective Leza Pessotto stated that she remained of the view that the complainant was truthful in her evidence. She stated this was because: (a) Throughout the investigation, Ms Halley's evidence remained consistent and detailed; (b) The bruises and injury suffered by Ms Halley as disclosed in Dr Chen's report was consistent with the alleged sexual assault; (c) Ms Halley immediately picked Mr El-Ashraf/ from a photo identification parade; (d) Mr EI-Ashrafi admitted to the sexual intercourse on 28 November 2008, though he said it was consensual; (e) It concerned me that Mr EI-Ashrafi had lied to Ms Halley about his name, having introduced himself to Ms Halley as 'Adam'; (f) Ms Halley's contemporaneous statements to her school counsellor and medical practitioners were consistent with her police statement; and (g) There was no apparent reason why Ms Halley would have made up the allegation.
4. The applicant denies the sexual assault occurred and claims that the relations were consensual. The applicant makes submissions that the matter relating to the sexual assault should be disregarded because the DPP discontinued those proceedings. They suggest that it would be unjust to consider anything in relation to this matter as the matter did not proceed and no conviction was recorded. They say that the Ms Halley's evidence has never been tested and therefore it would be unjust for a Tribunal to evaluate and make a judgment on the evidence. They also refer to the fact that firearms were not a factor in the investigation of that matter.

An assault in March 2011 reported to involve a firearm

1. The statement of Sergeant Martin Evans reveals that in March 2011, the applicant was charged with two counts of common assault in breach of s 61 of the Crimes Act 1900. The charges related to an incident involving the applicant and his cousin, who live next door to the applicant. The applicant's cousin and uncle failed to attend court and give evidence at the hearing and the charges were dismissed.
2. In the statement of Sergeant Evans he includes a statement of Inspector Davies at the time in which a 000 call had been made by the applicant's uncle and in which he said that the applicant and his son (the applicant's cousin) has been fighting. It was alleged that the applicant had threatened his cousin with a firearm. Sergeant Evans states that upon attendance at the applicant's property police located a spent ammunition cartridge on the front lawn of the applicant's property consistent with an assault. Police also observed bruising and swelling of the cousins wrist.
3. In his statement, Sergeant Evans states that during his interview with police, the applicant admitted to punching his cousin in the face the evening before. The applicant told police he had a firearm in his possession at the time because he was going to shoot rabbits.
4. The applicant concedes that an altercation occurred between him and his cousin, however he denies it occurred in the manner alleged. He states that after the altercation he and his cousin went separate ways and he noticed some rabbits in his greenhouse. He retrieved one of his firearms which was safely stored in the safe and shot rabbits. He denies a firearm was produced during the altercation with his cousin. He states his uncle and cousin did not provide statements and the matters were subsequently dismissed and again has not been tested.

Accidental Shooting into a Neighbour's Residence

1. The respondent also alleges that the applicant's use of a firearm is unsafe and dangerous. They refer to an incident in November 2011 where a bullet went through a neighbour's window and police were called. In evidence contained in the statement of Senior Constable Hillery, who appeared at the hearing, he stated that he observed a smashed a window and a bullet fragment on the floor in the neighbours residence. He states he attended the applicant's property and spoke to him. He states that during those conversations, the applicant admitted he had been shooting at a bird in his greenhouse at the time and had missed. The applicant subsequently paid for the neighbours damaged window to be repaired.
2. The applicant denies admitting to police it was his bullet and states they took no further action in any event and the Tribunal cannot be satisfied that it was his bullet. He states that he was co-operative with police and gave them the opportunity to inspect his gun and to conduct whatever tests were required, but that they declined the offer. He also states that he only agreed to fix the window out of goodwill to his neighbour.
3. The applicant relied on a statement from Mr Hussein Abdullah who is a friend and neighbour of Mr El-Ashrafi. Mr Abdullah stated that he was there on the night of the incident and that he recalls police officers speaking to the applicant and requesting to see his firearms and safe. He states he heard Mr El-Ashrafi say to officers that he was shooting on the property at animals eating his crops and he did not shoot at the window and that it was not his bullet. He also alleges that the police officer stated that they were not going to take the matter any further, but suggested that the applicant should just fix the neighbours window out of goodwill.

Family conflict

1. The statement of Cathy Donney discloses that in December 2014, police received reports regarding the applicant's cousins, Mr Ahmad EI-Achrafi and Mr Jihad Hannouf. Family members were scared that firearms would be used against them or their property. The applicant's brothers, Ahmad and Mahmoud EI-Ashrafi, were identified as the alleged perpetrators and arrested.
2. When interviewed by police the applicant's brother, Mr Ahmad EI-Ashrafi acknowledged that there was an ongoing dispute between the families and that phone calls had been made. Mahmoud EI-Ashrafi also acknowledged speaking to the applicant's cousin, and acknowledged that there had been an argument and "drama after drama" between the families.
3. Mr Mahmoud EI-Ashrafi's was also questioned about a photograph posted to Instagram of him making a gun like shape and a caption "Now It's Personal, be There Soon Gorgeous (sic)". He stated that it referred to Tupac lyrics and was not a threat.
4. The applicant lived with his brothers at the time at 46 Boyd Street, Austral, and that was the storage location for his firearms. While the applicant and his brothers no longer live together, the applicant and his brother Mahmoud remain living in close proximity. The applicant's brother Mahmoud EI-Ashrafi has been issued with Firearms and Weapons Prohibition Orders. The respondent makes submissions that whilst the applicant now resides at 48 Boyd Street, the applicant originally sought his licence for the purpose of vermin control on the properties at 46-48 Boyd Street.
5. In September 2015, police were called to an alleged assault. It was alleged that the applicant's brothers, Ahmad and Mahmoud EI-Ashrafi had assaulted his cousin, Mr Mohamad AI-Achrafe. The applicant's brothers were both charged with assault occasioning actual bodily harm (domestic violence related) in contravention of s 59(1) of the Crimes Act 1900. The charges were withdrawn when the victims failed to attend court as a witness.
6. The respondent makes submissions that the two reported assaults, and demonstration of family conflict, should be given significant weight. They allege there is an ongoing feud between the families and there have been threats of, and actual, violence between the applicant and his cousins - perpetrated by both the applicant and his brothers. They make submissions that in all the circumstances, the public interest favours no firearms in this environment.
7. The applicant makes submissions that this is not a risk to public safety and that given the applicant's change of address there can no longer be any concerns. He also repeats his claims that the allegations are untested and should not be considered and that they involve his brothers and not him.

Disposal of firearm

1. During an interview on 1 March 2011, the applicant also revealed what the respondent alleges is a breach the Act. He was questioned as to the location of a missing air rifle .177 Garno firearms which had not been located by police when they seized firearms. The applicant stated that he sold the firearm to an acquaintance, 'Sam' in around December 2010. He stated that he gave the paperwork to 'Sam'. The applicant could not provide contact details of 'Sam' to police.
2. The applicant denied any breach and that he sold the gun to a gun dealer and gave him the paperwork for the transfer.

Further Evidence of the Applicant

1. The applicant seeks to also rely on the fact that he has previously been determined to be a fit and proper person by the respondent for the purpose of the applicant's application for a firearms licence.
2. The applicant owns a cucumber farm and he states that he has and will continue to have a genuine reason for possessing and using a firearm as a primary producer who has vermin and pest issues.
3. He states that he has always adhered to the conditions imposed on him by his firearms licence and that police have on numerous occasions commented favourably on his compliance with storage and safekeeping of his firearms.
4. He also states that the criminal allegations being made against him and his family should not be considered as they have not been tested.

Findings and Decision

1. The Tribunal rejects the submissions by the applicant that the criminal matters alleged against him and others should be disregarded, not considered or not given any weight in deliberating on the issues because it would be unjust to consider anything in relation to those matters as the matters did not proceed in the criminal courts and no conviction was recorded.
2. In these proceedings the Tribunal must makes its own decision on the material before it taking into consideration the objects and intentions of the Act where the overriding need is to ensure public safety. In the Court of Appeal case, Joseph v NSW Commissioner of Police [2017] NSWCA 31 (6 March 2017), Mr Joseph appealed an Appeal Panel decision affirming the Commissioners refusal to issue a firearm license. Mr Joseph had initially put before the Tribunal in the initial determination that fraud charges which had been bought against him were dismissed before trial were not relevant to the Tribunal's consideration as they had not been tested. The Tribunal initially agreed with those submission and made orders for the issuing of a license for a firearm. The matter was appealed by the Commissioner to the Appeal Panel who rejected those submissions, allowed the appeal and affirmed the decision of the Commissioner. Mr Joseph appealed to the Supreme Court of Appeal which found that that evidence established, at least on the balance of probabilities that Mr Joseph had engaged in pre-planned, fraudulent conduct. They confirmed that the Appeal Panel could consider the evidence relating to the fraud applying a lesser standard of proof than the criminal standard. The application for leave to Appeal was dismissed.
3. Specifically at para 60 of the decision it states: There was no reason in principle why the Appeal Panel could not take into account matters indicating criminal conduct on Mr Joseph's part and do so after applying a lesser standard of proof than the criminal standard (Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 at [32]- [33]).
4. Further, in the recent Supreme Court of Appeal matter of Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 (9 March 2017) it was stated at paras 126-127: It is not necessary, in order to resolve this appeal, to examine in any detail the way in which the principle in Briginshaw supplemented by s 140 of the Evidence Act 1995 (NSW) applies to fact finding in a tribunal to which the rules of evidence do not apply. One reason why it is inappropriate to do so is that the primary judge appears not to have been favoured with full submissions referring to intermediate appellate authority on this issue. It is true that his Honour was referred to a passage in the reasons of Santow JA in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35], to the effect that how the Briginshaw standard was to operate "must be understood in the context of an administrative body operating informally and not as a court of law bound by the law of evidence". However, his Honour was not referred to the analyses in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176; [2013] VSCA 305 at [29]- [40] and Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322 at [22]- [30] nor to that undertaken by a Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 at [98]- [122]. Nor was his Honour directed to what had been said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171: "[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." [citations omitted] In those circumstances, his Honour's reasons at [77] (reproduced above) reflect the strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT.
5. While these decisions were made after this appeal was heard, they however reflect the position of the cases prior including Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 where it was stated at paras 32-33 The Authority submits, correctly, that the "general principle" stated by the Full Court and set out at [26] above is expressed too widely and does not follow from the constitutional constraint stated in the joint reasons in Lim on the adjudgment and punishment of criminal guilt under Commonwealth law. Not uncommonly, courts exercising civil jurisdiction are required to determine facts which establish that a person has committed a crime[71]. Satisfaction in such a case is upon the balance of probability[72]. In Helton v Allen, Mr Helton's acquittal of the murder of the testatrix was no bar, on the trial of the civil suit arising out of the will, to the finding that he had unlawfully killed her[73]. More generally, and contrary to the "normal expectation" stated by the Full Court, it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action. The decisions of this Court in Attorney-General (Cth) v Alinta Ltd[74] and Albarran v Companies Auditors and Liquidators Disciplinary Board[75] accept so much[76]. There is no reason to suppose that a Commonwealth public housing authority might lack the capacity to terminate a lease on the ground of the tenant's use of the premises for an unlawful purpose notwithstanding that the tenant has not been convicted of an offence arising out of that unlawful use.
6. Consequently, the Tribunal rejects the applicant's submissions that matters where no conviction has been recorded can't be considered or given any weight in the matter.
7. The Tribunal also reject the applicant's submissions that the traffic offences cannot be a relevant consideration to the matter. In Tannous v Commissioner of Police [2011] NSWADT 116 at [32] the Tribunal held that repeated breaches of traffic laws and regulations which like the regulation of firearms, are aimed at ensuring public safety, can be potentially relevant. The conduct in relation to traffic offences may indicate an inability to observe legal regulations which are imposed for public safety and indicate a lack of responsibility when it comes to public safety. In that case the Tribunal ultimately found that it was not in the public interest for that applicant to hold a firearms licence. In arriving at the decision the Tribunal regarded that the applicants repeated breach of traffic laws and regulations indicated a disregard for a regulatory scheme which is aimed at ensuring public safety.
8. In relation to the applicant's denial that the incidents involving his family could be relevant to the decision to revoke his licence, the conduct of others can be relevant: In Tolley v Commissioner of Police [2006] NSWADT 149, the Tribunal said at [31]: Given the breadth of the Commissioner's discretion and the overriding object of public safety there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence.
9. Further s 11(4)(a) of the Act provides: ...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) the applicant's way of living or domestic circumstances
10. 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 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".
11. Finally, the applicant's personal interest in having his licence cannot outweigh the public interest. In Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 it was stated at [22]: ..a decision maker should not shy from an exercise of [the] discretion merely on the grounds that the licensee may suffer hardship and or inconvenience . .... All of the circumstances surrounding the offence must be taken into account.
12. Taking into account all relevant considerations, the Tribunal finds that it is not in the public interest for the applicant to continue to hold a firearms licence.
13. The Tribunal makes the following findings: 1. The applicant has had a history of continual and significant traffic infringements between the years 2004 to 2014. The applicant stated that the last matter was in 2014 and that his personal circumstances have now changed and he is married and he has grown and changed. However, his driving history demonstrates he has previously had gaps of about two years without infringements and then an infringement to follow. Some the offences are repeated such as driving with a mobile and others involve driving while suspended. The Tribunal finds that the applicant's traffic history does demonstrate an inability to follow regulations which are imposed for public safety, further the last offence was in June 2014 which the Tribunal regards as recent. 2. In relation to the sexual assault allegation, Detective Senior Constable Pessotto had provided a statement together with annexures including statements from the complainant. The applicant had the opportunity to call her for cross examination, however did not require the detective to be made available for cross examination. Her evidence remains unchallenged except in so far at the applicant denies it. The Tribunal does not find on the evidence that the sexual assault or the threats have been made out. 3. The Tribunal is not satisfied that in the altercation with his cousin in about February or March 2011 with his cousin Mohamad Achrafe involved a firearm. However the applicant in his own statement of 18 August 2016 acknowledges at paragraph 9 that an altercation occurred. The Tribunal is satisfied on the evidence provided by Sergeant Martin John Evans that the altercation itself occurred and that the applicant did punch his cousin in the face. At paragraph 19 of the statement of Martin Evans, and in annexure L, at question 137 of the interview conducted by police at the time of the incident the applicant states: A: I didn't realise I was swearing at his sister, he goes. Come down now, I go, I'll come down, relax. Do you want a go at me, ….. he started going at me, he wants to hit me. I was in a shitty mood Q137: Yeah A: I punched him, I punched him in the face ---- Q138: Yeah A --- and everything was over. Q139: Yeah A: We always get in an argument, you know family politics Q140: Yeah. Yeah. Yeah A --- and we're used to it, After five minutes there's nothing. 1. The Tribunal finds that altercation significant enough to warrant the uncle calling police which is supported by the telephone records to 000 also contained at annexure C in the statement of Sergeant Martin Evans. 2. In relation to the incident in November 2011 where a bullet went through a neighbour's window, having considered the evidence, the Tribunal finds on the balance of probabilities that it was the applicant's bullet that smashed through the neighbour's window. In particular the Tribunal accepts the evidence of Senior Constable Hillery that the applicant did tell Senior Constable Hillery that he was shooting at birds in his greenhouse at the time. In the Cops event report of the time Senior Constable Hillery stated: Police spoke to the POI who made full admissions stating it was accidental. 1. In his statement of 21 October 2016, Senior Constable Hillery also recalled that the applicant had stated: I was shooting at a bird and I missed it. Moreover the Tribunal finds, as was stated by Senior Constable Hillery, that because of this and the statements that were made by the applicant, it was accepted that the incident was accidental and the police did not take forensic analysis.
14. In March 2011, the applicant told the police in the police interview involving his cousin that: A: ... I just shoot, where I can hear the rabbits --­ Q226 Yeah. A --- or foxes or whatever it is --­ Q267: Yeah. A: --- because I can't see at night. Q228: Yeah. A: I just use it to scare them away. Q229: OK. A: So --- Q230: So there's no lighting? No lighting in there, no. Q231: OK. So what --- A: There's a couple of lights but there's, they're, they're burnt out now. Q232: OK. For the purpose of, for the purpose shooting is to scare them off? A: Yes. Q233: OK. And so you're shooting in the directions where they are? A: Where they are to scare them. 1. The applicant was cross examined on this point. The respondent makes submissions that by shooting at a target that he could not see in the dark, the applicant could not have confirmed compliance with the safety principles set out in the Firearms (Longarms) Users Guide. The applicant denied he handled guns in a way that was dangerous. Certainly given the Tribunal accepts that the applicant accidentally fired a bullet into the neighbour's window and that he has fired at times in his greenhouse where there is no lighting, the applicant has put the public at risk. 2. In relation to the applicant's absence of control over one of his firearms in 2010 and 2011 the Tribunal accepts the explanation of the applicant and that even if a breach had occurred it was minor and not intended and does not reveal that the applicant acted in a way which would demonstrate he had no regard for following laws in regard to public safety. 3. The Tribunal finds that in the applicant's living and social environment there is conflict between family members who live in close proximity. One of his brothers who is living next door is subject to a Firearm Prohibition Order (FPO) and Weapons Prohibition Order (WPO). Further while the matter did between his brothers and cousin did not proceed to a conviction, the Tribunal is satisfied that there was family conflict which had led to the incident.
15. The underlying principles of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68 at 44 emphasis that strict controls on the possession and use of firearms are imposed in the interests of public safety. Weighing up the applicant's personal interest of requiring a gun for his farm against the public interest, the Tribunal is satisfied that the decision to revoke the licence was the correct and preferable decision and affirms the decision. The orders are made accordingly.

Order 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: 31 March 2017