El Saadi v Commissioner of Police

ales Police Service [2004] NSWADT 110. Category: Principal judgment Parties: Ahmad El Saadi (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Thomas Henry Bray Lawyer (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2021/00065633 Publication restriction: See above.

reasons for decision

1. The applicant Mr Ahmad El Saadi on 5 March 2021 applied to this tribunal for review of a decision taken by the respondent Commissioner on 16 December 2020 to cancel his category AB firearms licence (exhibit R1, p 11). The licence had been issued on 7 June 2017 for the reason of recreational hunting/vermin control. The ground of revocation was that the applicant associated with an individual who is subject to a firearms prohibition order (FPO) and had been convicted of a serious firearms offence in the past.
2. The applicant applied for an internal review of the decision on 12 January 2021, but was not notified of the outcome of the review within 21 days. Consequently, the internal review was taken to have been finalized on or about 2 February 2021, pursuant to the ADR Act, s 53(9)(b).
3. On 30 April 2021, the respondent undertook an internal review, which affirmed the decision to revoke the applicant's category AB licence. The reviewing officer's reasons for decision noted among other things that the applicant has historical convictions for offences involving violence and between 1984 and 2011 had come under police notice for various matters, including assault and drugs.
4. The reasons assigned weight to the fact that the applicant's criminal history was now over 20 years old, but the available information demonstrated that his close familial associations provided an unacceptable risk to public safety in the context of unfettered access to firearms and ammunition. The reviewing officer therefore took the view that despite the applicant's lack of criminality, it was not in the public interest for him to hold authorities for firearms (exhibit R1, p 17).
5. On 29 June 2021, following an ex parte interlocutory hearing, the tribunal made certain confidentiality orders under ss 49 and 59 of the ADR Act and s 64 of the Civil and Administrative Tribunal Act (CAT Act): El Saadi v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 181.

Applicable legislation

1. Section 24(2)(d) of the Firearms Act provides that a firearms licence may be revoked for "any other reason prescribed by the regulations".
2. Clause 17(3) of the Firearms Regulation 2017 is relevant in that regard:

17 Requirement to notify Commissioner of address where firearms are kept (1) The holder of a licence or permit must, within 14 days after acquiring any firearm, give the Commissioner a notice in writing or in such other manner as may be approved - (a) specifying the address of the premises on which the firearm is to be kept when not actually being used, and (b) specifying particulars of the arrangements that have been made by the licence or permit holder for the safe keeping and storage of the firearm on those premises, and (c) certifying in the approved form that those arrangements comply with the requirements of the Act and this Regulation concerning the safe keeping and storage of the firearm. Maximum penalty - 50 penalty units. (2) Subclause (1) does not apply if the licence or permit holder has already provided the information and certificate referred to in that subclause to the Commissioner in connection with the application for the permit to acquire the firearm concerned. (3) If there is any change in the address of the premises on which the holder of a licence or permit keeps any firearm, the holder of the licence or permit must, within 14 days after the change occurs, give the Commissioner notice in writing or in such other manner as may be approved - (a) specifying the address of the new premises on which the firearm is to be kept when not actually being used, and (b) specifying particulars of the arrangements that have been made by the licence or permit holder for the safe keeping and storage of the firearm on those premises, and (c) certifying that those arrangements comply with the requirements of the Act and this Regulation concerning the safe keeping and storage of the firearm. Maximum penalty - 50 penalty units. (4) Subclause (3) does not affect any requirement under section 69 of the Act to notify the Commissioner of a change of address in relation to a place of residence.

1. Clause 20 provides that the Commissioner may revoke a licence if satisfied that it is not in the public interest for the licensee to continue to hold the licence.
2. The issue in the present application is thus whether the correct and preferable decision is that the applicant's category AB firearms licence should be revoked on the ground that it is not in the public interest for him to continue to hold the licence.

The evidence

1. At the hearing on 24 August 2021 the respondent did not call oral evidence but relied on the s 58 documents (exhibits R1 and R6) and certain other documentary material, including a confidential statement (confidential exhibit CR3).
2. The applicant also called no oral evidence and relied on written material, including an affidavit by the applicant dated 12 July 2021 (exhibit A1). The applicant did not attend the hearing, although the respondent indicated that he was required for cross-examination. The possibility of an adjournment on that ground was raised, but Ms Mokdad had no instructions from her client on the point and was unable to contact him. The respondent submitted that it was preferable for the applicant to be present, but the parties agreed to proceed in his absence.

Ahmad El Saadi

1. In his affidavit sworn on 27 July 2021 (exhibit A1), the applicant set out his background, explaining that he had studied plumbing at TAFE and had worked as an apprentice plumber with his father, who had his own plumbing business, which was very successful and had about 100 employees. His father had now retired, having won Lotto twice (he had purchased the Ferrari that the applicant was seen driving on 10 August 1999).
2. After about six years of plumbing, he returned to TAFE to study carpentry and then worked as a carpenter until he was approximately 35 years old. He is currently occupied primarily as a builder and a farmer, having obtained a building licence about 5 years ago. He develops real estate and renovates properties.
3. His farming business is known as Goulburns Livestock and operates a farm at Pontilla Lane, Tarlo, which has 115 acres of land on which he grows crops and runs sheep and cattle. He attends at the farm at least once a week to feed and tend to his livestock, as well as to perform routine checks on the property and the crops. There have been occasions when his livestock had been injured or killed by kangaroos and foxes, so he regularly hunts them in order to protect his livestock. He also hunts rabbits to protect his crops.
4. He obtained a category AB firearms licence on 23 April 2012, which was then reissued on 7 June 2017, and he currently owns nine firearms that are registered in his name. He is also the director of Peter Rabbit Child Care Centre Pty Ltd, which operates a childcare centre at Canterbury Road, Punchbowl. He is also the director of Kidsversity, which operates as a childcare centre at Dudley Street, Punchbowl. He also the director of PNA Partners Pty Ltd, known as Carlton Hotel and Exchange Hotel in Goulburn.
5. The notice of suspension dated 7 May 2020 said that his licence was suspended on public interest grounds. The notice of revocation dated 16 December 2020 then said that his licence was revoked because he associates with an individual who is subject to a firearms prohibition order (FPO) and has been convicted of is a serious firearms offence in the past, and that association raises public safety concerns by reason of his way of living. He assumes that the "individual" referred to in the notice of revocation is his brother, Belial El Saadi, but he no longer has any relationship with him.

Monira Zein

1. The applicant also tendered a character reference by Ms Monira Zein dated 23 July 2021 (part exhibit A1) stating that she is the owner and director of Engadine Kindy Castle. She had met the applicant through working together at his family's childcare centre, Peter Rabbit. Since then the applicant had taken over the service and she had opened her own. In the past 10 years they had been working together, supporting each other in running an education and care service. Their professional relationship involved supporting each other in operating children's services and ensuring [keeping] up-to-date with legal obligations such as child protection and the reportable conduct scheme.
2. During that time she had come to know the applicant as a responsible, law-abiding and professional member of the community. He is trustworthy and is passionate about his work. She understands that Ahmad El Saadi has a couple of farms that require him to obtain a gun licence for hunting, land protection and pest control. They had always known him to be a law-abiding citizen. He has been an active member of the community, supporting families for 10 years.

Elie Ganeme

1. The applicant also tendered a character reference dated 27 July 2020 (part exhibit A1) stating that the author is aged 41 years and lives at Panania with his wife of 14 years and their three children. He is a builder and operates his own business.
2. He has known the applicant for nine years and has held his firearms licences since 2014. He knows Ahmad to be a trustworthy person who would never, and never has, abused his rights to his firearms licences. His family and the applicant's family and three children regularly travel together to various holiday locations and have regular gatherings, such as dinners and outings.
3. He writes that the applicant is a reliable, responsible and trustworthy individual. He prides himself in his family, and is cautious about the safety and wellbeing of his family, friends and the many children in his care at his child care centres.

Applicant's submissions

1. The applicant lodged some written submissions on 27 July 2021 (exhibit A2) which contended inter alia that unless the confidential material has weight on the individuals with whom the applicant actually associates, then that material should be balanced with the genuine need for his firearms licence.
2. The applicant has two historical charges on his record, one of which was withdrawn and the other dating back over 25 years. Other matters relied on by the respondent were mere allegations and all involvement is denied by the applicant. The legislation provides a balance between the desire to shoot recreationally and control vermin, or both, as a personal interest and secondary to public interest.
3. In this case it was not a matter of desiring, as the need in fact to hold a licence to control the livestock on the applicant's farm and to have the ability to utilise them humanely, particularly for controlling kangaroos, foxes and rabbits. The applicant does not associate with any persons who is subject to a firearms prohibition order (FPO) and has always exercised personal responsibility and control over firearms.
4. The revocation of his licence has significantly affected the applicant's operation of the farm, the future running of the farm and the applicant's livelihood for the production and sale of cattle and crops.
5. The applicant operates two childcare centres in Sydney. He is well known in the community for his business professionalism and kind nature. The childcare centres are managed by employed staff, while the applicant spends significant time at his farm. The applicant is of good character, a business and family man who is very respected in the community at both his personal and business levels. He submits he has always upheld his good character and integrity, which has allowed him to excel and become a well respected member of the community. He will not jeopardize his upheld reputation by associating with people who are not of the same standard.
6. The applicant is a family man with dependants who look up and depend on him for financial and emotional support and is an integral part of his community and family. He does not associate with individuals who would jeopardize the running of his farming and businesses, including his firearms licence and working with children requirements. He appreciates and has always abided by the strict controls and safe storage of his firearms, and that requirement would always be met. He has shown a genuine need for the possession of firearms and is a fit and proper person and can be trusted to have possession of firearms.

Consideration

1. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
2. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
3. Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless 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. Section 11(4)(c) also 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 the applicant's intemperate habits or being of unsound mind.
4. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.

The public interest

1. The ground on which the respondent argues in support of licence revocation is that it would not be in the public interest for the applicant to continue to hold a licence, within the meaning of s 24(2)(d) and cl 20.
2. The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They 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, New South Wales Police Force [2013] NSWADTAP 16.
3. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
4. In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].
5. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 in 2013 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" (at [7]).

Offences of violence

1. The respondent contended that it would not be in the public interest for the applicant to hold a firearms licence for several reasons. First, he has convictions for offences of violence, one for assault occasioning actual bodily harm, for which he received a 200 hours community service order, and one for assault (indictable) for which he was placed on a 2-year bond. There was also a charge of goods in custody reasonably suspected of being stolen in 1999, an offence that casts a wide net, but it was withdrawn and dismissed (exhibit R1, pp 2 - 3).
2. Offences of violence are always of concern in the field of firearms licensing, but in this case the offences date back to 1994 and 1996 respectively and there has been no similar occurrence since. In neither case was a custodial sentence or suspended sentence imposed. Those matters were known to the respondent when the applicant was previously issued with a firearms licence, and although they remain relevant factors to be considered along with other evidence, they do not now carry substantial weight on the public interest question.

Traffic record

1. Next, the respondent points out that the applicant has a history of traffic infringements dating back to 1994, including one demerit point licence cancellation, one suspension and two demerit points warning letters. He has also accumulated nine traffic infringement notices for multiple instances of speeding, two cases of negligent driving, two of improper turning and one each of not complying with conditions of a provisional licence and of using a mobile telephone (exhibit R1, pp 1 - 2).
2. In Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 (at [76]), the tribunal pointed out that the applicant's traffic history in that case showed a disregard for public safety in his repeated traffic offences. They indicated a disregard for a regulatory scheme aimed at ensuring public safety, and the firearms regulatory and licensing scheme is also focused primarily on public safety (at [81]).
3. The applicant's traffic record is certainly unimpressive. Ms Mokdad pointed out that he drove some 30,000 km a year and submitted that his record in those circumstances was about average. But probably most drivers who cover that kind of mileage have never had their licences cancelled or suspended, and received two demerit points warning letters. There may have been some improvement in the applicant's driving record in later years, the most recent offence (speeding) dating from February 2018.
4. Nevertheless, it is a poor record and the existence of repeated instances of the same type of violation would indicate a long-term attitude of carelessness towards a regulatory system designed to protect public safety. That must significantly count against him on the question of public interest.

Change of address

1. Again, the respondent submits that the applicant contravened cl 17 by failing to notify the Commissioner of a change of address of the premises on which he kept his firearms. The evidence shows that when police executed a crime scene search warrant on a property where the applicant's father (Mohd Al Saadi) was living in 2017 (exhibit R6, pp 9 - 1, event E65840658), a shotgun belonging to the applicant was located in a gun safe and there was no record of its safe storage location having been changed in accordance with cl 17. By failing to notify the Commissioner of the change in the shotgun's safe storage location, the applicant had arguably placed its security and the safety of other persons at risk.
2. The applicant contended that as his father had held the appropriate firearms licence at the time, under s 50B of the Act he had not committed a breach of the legislation, and as he had only lent the gun to his father for a day or two, its safe storage address had not changed. Further, no charges had been laid against him or his father as a result of the incident. As there was no evidence to contradict those propositions, that ground does not appear to merit substantial weight.

Change of purpose

1. Similarly, the respondent submitted that there was a concern that the applicant had been using his firearms for purposes other than in connexion with the reason established by him as the genuine reason for possessing or using firearms, in that he was using them for the purposes of primary production rather than merely for recreational hunting/vermin control. As he had not applied to add primary production (under s 12) as a reason, he was in breach of the Act (presumably s 7A(2)).
2. The applicant did not appear to deny that proposition. That omission therefore prima facie constituted a contravention of his obligations for full reporting and compliance. But while it was technically a breach of the Act, its direct effect on public safety would not have been substantial and the weight to be accorded to it would accordingly not be large.

Close association with persons having an FPO or a criminal history

1. Continued associations with "known criminals" is a consideration worthy of reasonable weight (Salter v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 37, (at [42]). The respondent expressed concerns that the applicant has close associates who represent an unacceptable risk to public safety, in the context of unfettered access to firearms and ammunition. In particular, the applicant's brother, Belial El Saadi, is subject to an FPO and has been convicted of serious firearms offences (exhibit R1, p 18). The tribunal has held that even when there is no evidence that an applicant has personally engaged in any drug dealing, firearms trafficking, violence or similar criminal activities, he or she could come under pressure to make guns or ammunition available to criminals or criminal organizations if they remain associated with such persons or organizations: Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194, [90].
2. The applicant's affidavit evidence stated that he has had no contact with his brother Belial for some 2½ years, but the respondent contended that the applicant might in the future rekindle and continue a close relationship with his brother. The applicant denies that possibility. In his affidavit (exhibit A2) he said that, "Unlike my brother, I always tried to stay out of trouble and I studied and worked hard with a view to having a better future. Because of this and the fact that I have always been successful in my various businesses, my brother did not like me and he became jealous of me. My relationship with my brother broke down irrevocably approximately two years ago and I will never be in contact with him again".
3. Apart from the relationship with his brother Belial, the open evidence relied on as showing the applicant having a relationship with known criminals is not extensive. A report dated 15 November 2009 (exhibit R6, p 5, event E 39280179) states that the applicant was seen at a stationary breath testing location driving a red Ferrari, estimated to be worth $400,000, with New South Wales plates reading "INDULG". The breath test recorded a negative result, but the car was searched, and nothing of an adverse nature was found.
4. Again, a report dated 4 September 2017 (exhibit R6, pp 8 - 9, event E 65840658) related how police had conducted the crime scene warrant search at 17*** Hume Highway, Towrang, where the applicant's father, Mohd El Saadi, was found to have unsecured shotgun ammunition close to his bedside table "for protection in case someone comes onto his property". He was also found to be keeping in his safe the 12-gauge shotgun belonging to the applicant. A warning was issued and Mohd's firearms licence was suspended, but no charges were laid against either Mohd or the applicant as a result of the incident, although two other persons were charged with drug offences because some 300 m from the residence, police located a large-scale inactive drug laboratory in, including custom-made stainless steel apparatus. On the evening of 4 September 2017, 661 g of methylamphetamine were seized.

Conclusion

1. The totality of the evidence, including the character references and the confidential material, leads to the conclusion that it would not be in the public interest for the applicant to hold a firearms licence within the meaning of cl 20, and I so find. The decision under review must be affirmed.

Orders 1. Decision under review affirmed. 2. Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and confidential exhibits CR3 and CR4, or matters contained in the Confidential Material and confidential exhibits CR3 and R4 is prohibited. 3. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and confidential exhibits CR3 and CR4, or matters contained in the Confidential Material and confidential exhibits CR3 and CR4, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal. 4. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these preliminary proceedings, including confidential exhibits CR3 and CR4 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant.

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: 11 November 2021