Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Coco v R [1994] HCA 15, (1994) 179 CLR 427
Crowley v Murphy (1981) 52 FLR 123
Source
Original judgment source is linked above.
Catchwords
Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Coco v R [1994] HCA 15, (1994) 179 CLR 427Crowley v Murphy (1981) 52 FLR 123Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADT AP 16Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50Dalziell v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 79Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Entick v Carrington (1765) 19 How. St. Tr. 1029Grant v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 158Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43Jones v Dunkel [1959] HCA 8, (1959) 101 CLR 298Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368Kruger v Commonwealth [1997] HCA 27, (1997) 190 CLR 1Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
McCloy v New South Wales [2015] HCA 34, (2015) 257 CLR 178
McDonald v Director-General, Social Security [1984] FCA 57, (1984) 1 FCR 354
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Salter v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 37
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110
Williams v R [1986] HCA 88, (1986) 161 CLR 278
Judgment (22 paragraphs)
[1]
uth Wales Police Force [2014] NSWCATAP 10;
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 130;
Olmstead v United States (1928) 277 US 478;
Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9, (1983) 152 CLR 328;
Salter v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 37;
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10;
Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149;
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110
Williams v R [1986] HCA 88, (1986) 161 CLR 278;
Wilson v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 274
Texts Cited: D Pearce, R Geddes, Statutory Interpretation in Australia, Thomson Reuters, 8th edition.
Category: Principal judgment
Parties: Mr Hilal Fawaz (Applicant)
Commissioner of Police, New South Wales Police Force (Respondent)
Representation: Counsel:
H El-Hage (Applicant)
A Douglas-Baker (Respondent)
[2]
Solicitors:
Yazbeck Law (Applicant)
Crown Solicitor (Respondent)
File Number(s): 2021/00360395
Publication restriction: 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 proceedings, including confidential exhibit CR6 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.
[3]
Reasons for decision
The applicant Mr Hilal Fawaz was issued with a category AB firearms licence on 27 March 2017, which was to expire on 18 May 2022 (exhibit R1, p 8). No firearms offences have been recorded against him.
Section 73(1) of the Firearms Act states that the Commissioner may make a firearms prohibition order against the person if, in the opinion of the Commissioner, the person is not fit, in the public interest, to have possession of a firearm.
On 21 August 2021 the applicant was made subject to a firearms prohibition order (FPO) under s 73(1). The order stated that "Based on material held by the NSW Police Force, I [the issuing officer] find the following: Hilal FAWAZ is not a fit and proper person to hold a firearms licence…. Your antecedents have enabled the Commissioner to make the determination in relation to your fitness to have access to firearms, firearms parts and ammunition. It is considered that you are not fit in the public interest to at any time have access to firearms, firearms parts or ammunition. It is critical to ensuring the public's safety that a firearms prohibition order is issued against you" (exhibit R1, p 2). The applicant's firearms licence was revoked on 25 August 2021.
The FPO was served on the applicant in the course of the execution of a search warrant on 25 August 2021. At the same time as the FPO was served, the applicant was also served with a weapons prohibition order (WPO). The WPO is not the subject of any review application.
The applicant on 23 September 2021 requested an internal review of the FPO (exhibit R1, pp 14 - 18). As no decision had been made on that request within the time allowed, the request was deemed to have been refused.
On 1 August 2020 to the respondent applied to this tribunal for the issuance of a summons to produce documents and on 22 August 2022 the applicant applied for an order setting aside the summons on the ground that it lacked a legitimate forensic purpose. The application to set aside succeeded: Fawaz v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 296.
Confidentiality orders pursuant to s 59 of the Administrative Decisions Review Act 1997 (ADR Act) and s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (CAT Act) were made by Ransome SM on 4 March 2022.
[4]
Applicable legislation
Section 73(1) of the Firearms Act provides that "The Commissioner may make a firearms prohibition order against a person if, in the opinion of the Commissioner [or, on review this tribunal], the person is not fit, in the public interest, to have possession of a firearm".
The effect of an FPO and the special powers that it confers on police are set out in ss 74 and 74A:
74 Effect of firearms prohibition order
(1) Prohibition on persons acquiring, possessing or using firearms, firearm parts or ammunition A person who is subject to a firearms prohibition order must not acquire, possess or use a firearm.
Maximum penalty - imprisonment for 14 years if the firearm is a pistol or prohibited firearm, or imprisonment for 5 years in any other case.
Note -
Reference to a pistol includes a prohibited pistol.
(2) A person who is subject to a firearms prohibition order must not acquire or possess a firearm part.
Maximum penalty - imprisonment for 14 years if the firearm part relates solely to any kind of pistol or prohibited firearm, or imprisonment for 5 years in any other case.
(3) A person who is subject to a firearms prohibition order must not acquire or possess ammunition for any firearm.
Maximum penalty - imprisonment for 5 years.
(4) Prohibition on supplying firearms etc to persons subject to orders A person must not supply or give possession of a firearm or firearm part to another person knowing that the other person is subject to a firearms prohibition order.
Maximum penalty - imprisonment for 14 years if the firearm is a pistol or prohibited firearm or if the firearm part relates solely to any kind of pistol or prohibited firearm, or imprisonment for 5 years in any other case.
(5) A person must not supply or give possession of ammunition for any firearm to another person knowing that the other person is subject to a firearms prohibition order.
Maximum penalty - imprisonment for 5 years.
(6) Prohibition on persons residing at premises where there are firearms etc A person who is subject to a firearms prohibition order is guilty of an offence if a firearm, firearm part or ammunition for any firearm is kept or found on premises at which the person is residing.
Maximum penalty - 50 penalty units or imprisonment for 12 months, or both.
(7) It is a defence to a prosecution for an offence under subsection (6) if the defendant proves that the defendant -
(a) did not know, and could not reasonably be expected to have known, that the firearm, firearm part or ammunition was on the premises, or
(b) took reasonable steps to prevent the firearm, firearm part or ammunition from being on the premises.
(8) Prohibition on persons attending certain premises A person who is subject to a firearms prohibition order must not without reasonable excuse attend -
(a) the premises specified in a firearms dealer's licence, or
(b) a shooting range, or
(c) the premises of a firearms club, or
(d) any other premises of a kind prescribed by the regulations.
Maximum penalty - 50 penalty units or imprisonment for 12 months, or both.
(9) Membership of a firearms club is not a reasonable excuse for the purposes of subsection (8).
(10) Exemptions The Commissioner may by order exempt a person, either unconditionally or subject to conditions, from a specified provision of this section.
(11) Proof of possession of firearm parts and ammunition For the purposes of any proceedings for an offence under this section, a reference in section 4A to a firearm is taken to include a reference to a firearm part or ammunition.
74A Powers of police to search for firearms in possession of person subject to firearms prohibition order
(1) The powers of a police officer under this section may be exercised as reasonably required for the purposes of determining whether a person who is subject to a firearms prohibition order has committed an offence under section 74 (1), (2) or (3).
(2) A police officer may -
(a) detain a person who is subject to a firearms prohibition order, or
(b) enter any premises occupied by or under the control or management of such a person, or
(c) stop and detain any vehicle, vessel or aircraft occupied by or under the control or management of such a person,
and conduct a search of the person, or of the premises, vehicle, vessel or aircraft, for any firearms, firearm parts or ammunition.
(3) In this section, premises includes any place, whether built on or not.
[5]
Applicant's evidence
The applicant relied on an affidavit filed on 13 May 2022 (exhibit A1). It had been prepared for the purposes of a proposed application to review the WPO, but that matter did not proceed and the applicant relied on the affidavit for the purposes of the present review application.
[6]
Mr Hilal Fawaz
12 The applicant's affidavit begins by outlining his background, including that he is aged 33, was born in Lebanon and came to Australia in 2009 at the age of 21. He is a married man with a dependent wife and three children aged 10, 7 and 5. He is currently a company director principally concerned in transport contractor activities, undertaking deliveries for Bunnings in the Castle Hill region, which he has done for 13 years without incident. His company, of which he is the sole director and shareholder, is Nour Corporation Pty Ltd and its address is at 779 Back Creek Road, B******.
A search of his premises was conducted by Detective Acting Chief Superintendent Robert Critchlow on 25 August 2021. On that day Detective Senior Constable Jones telephoned him from the premises and said he wanted the applicant home within 20 minutes. At the time the applicant was at Shellharbour and therefore said he was unable to return home to Bankstown (where he resided at the time) within that time, to which DS/C Jones said they were going to conduct a search whether the applicant was there or not.
When he arrived at the house at Bankstown, the search was in progress, and in the course of it police took all his firearms from his gun safe, together with a large number of documents that were either accounts or receipts kept by the applicant in connexion with his business, household and personal expenses.
The documents were not recorded in the property seizure exhibit form and to date had not been returned. They included all purchase receipts for ammunition and firearms-related purchases. He asked the police why they were taking the documents. The officer in question, who did not identify himself, said that they wanted them and gave no further reason. The affidavit attached a video recording of the search (exhibit HF - 1).
The applicant also had a country property at B**** where he has a caravan, and uses the property for recreational shooting or to relax with family or friends. A police officer telephoned the applicant from the B***** property at about 6:00 a.m. to tell him that they had forcibly entered his caravan and were searching his property. They gave him no opportunity to attend and be with them when it occurred. The police also took a video of that search and provided him with a copy (exhibit HF - 2). The property was left in a state of total disarray, the locks were damaged and the security in the property was compromised. At no time did he have any firearms on that property, as they were in his gun safe at Bankstown.
[7]
Respondent's evidence
The respondent relied on three affidavits affirmed by Detective Senior Constable Nathan William Jones. The first was dated 22 February 2022, and as it was prepared in support of a confidentiality application, it is not material for present purposes.
[8]
Detective Senior Constable Nathan W Jones
39 The second, dated 14 July 2022, attaches eight police statements in respect of the execution of a search warrant at Arthur Street, Bankstown on 25 August 2021 and a crime scene warrant executed at 779 Back Creek Road, Back Creek (near B******) dated 27 August 2021, together with other notes and records relating to those searches.
The deponent stated that, contrarily to the applicant's recollection, Detective Acting Chief Superintendent Critchlow was not present during the search of the Bankstown property on 25 August 2021. He denied that in his telephone conversation, he had told the applicant that he required him to return home to the Bankstown property within 20 minutes. He cannot recall the words that he used, but he asked the applicant to return as soon as he could, not giving a timeframe.
He first met the applicant in person inside the house, at which time he had a conversation with him and served the WPO and the FPO. During that conversation he asked Mr Fawaz for the keys to the firearms safe. He saw the applicant retrieve a set of keys from the top of the doorway. He handed the deponent the keys, which were used to open the safe. He had asked Mr Fawaz to remain outside the office and in the dining room, as there was limited space near the gun safe, for officer safety. All seized exhibits were processed in the dining room and the applicant was present while that occurred. He was not forced to sit down during this process and was standing in the dining room.
A number of documents were seized during the search in relation to the purchase or sale of firearms and ammunition. They were located in the office at the Bankstown property and elsewhere in the house. He does not recall a conversation with the applicant about taking the documents of the kind alleged by the applicant, nor is he aware of any request for the return of the documents.
He had informed the applicant that police were executing a crime scene warrant at the Back Creek property, after he had returned to the Bankstown property. that was captured on the search warrant recording. The crime scene warrant was executed at 7:25 a.m. on 25 August 2021, almost simultaneously with the warrant at Bankstown. The applicant was not contacted before the crime scene warrant was executed, for reasons of officer safety, to guard against possible destruction of evidence and because the Covid - 19 restrictions prohibited the applicant from travelling to the property at that time, as Bankstown was a "hot spot".
[9]
Confidential evidence
On the adjourned date 12 September 2022, a confidential hearing was held pursuant to s 49(2) of the CAT Act.
[Not for publication]
[Not for publication]
[Not for publication]
[Not for publication]
[Not for publication]
[Not for publication]
[Not for publication]
[Not for publication]
[Not for publication]
[10]
Applicant's submissions
The applicant made written submissions dated 13 May 2022 (prepared by Mr S.J. Stanton of counsel) which began by contending that there had been an abject lack of material fact identified and the matter had been couched in covert consideration or certainly consideration based upon covert factors that had not been revealed to the applicant and in respect of which public interest immunity provisions had been rigorously resorted to in order to deprive and deny the applicant of any basis on which the assessment that he was unfit and improper had been made.
It was acknowledged that his brother Abdul had been charged with serious indictable offences, and the fact that he had been so charged was relied upon to extrapolate and extend to the applicant as his being a person who is unfit and improper. At the outset, such an extrapolation was unwarranted and without just cause concerning the applicant, as could be seen from the bundle [exhibit R1] and the documents relied upon with respect to the "antecedents", such as they are, and relate to the applicant.
The applicant is a registered firearms holder without incident (exhibit R1, p 8). His traffic record is in the main unremarkable, although it must be accepted and acknowledged that there are relevant entries upon it, but nothing that would form a matter of any seriousness that would warrant concern or serious consideration as to the applicant being a person who had flagrantly flouted road rules of New South Wales.
More relevantly, and equally remarkably, were his criminal antecedents, or more particularly the lack of them. He had only one matter, driving while suspended, which was dismissed under s 10 at Bankstown Local Court on 18 March 2010 in respect of a matter dated 16 February 2010, which indicated his early plea and that the learned magistrate had dismissed the charge without recording a conviction. Further, his criminal infringement notice history records "no criminal infringement notice records found".
The respondent's primary evidence appeared in the statement of DS/C Jones made 7 September 2021 (id., pp 42 - 53). In addition, event report E59767652 (14 January 2016) concerned one Mohammed Bazzi and was of no discernible relevance, apart from the entry "No further investigation - 14/1/16". Event report E311851694 merely refers to a successful safe storage investigation at the applicant's Bankstown residence, which again led to "No further investigation".
[11]
Respondent's submissions
The respondent filed written submissions dated 13 July 2022 which, after setting out the background and chronology to the case, together with the applicable law, contended that there was sufficient in the open material before the tribunal to raise serious concerns in the public interest about the applicant's conduct in relation to firearms, specifically in relation to allowing family members to use the rifle identical to one of his rifles at his Back Creek Road property, in circumstances where that family member was not permitted to use or possess firearms.
Among the family members whom the applicant allowed to use that firearm was the applicant's sister-in-law, Maya Tabbaa, his brother Abdul's wife. Abdul is the subject of an FPO and therefore not permitted to acquire, possess or use a firearm. Mrs Tabbaa does not, and did not at the relevant time, hold a firearms licence. Again, the applicant visited the Back Creek Road property in contravention of travel restrictions under COVID-19 public health orders. His driving record also disclosed a pattern of disobedience to the conditions of his driving license and of road rules.
While the applicant had not been charged with any offences of violence, he was the subject of an allegation of threats of violence with a firearm in respect of a loan transaction with Zahir Orfali. The applicant apparently does not contest the material particulars of Mr Orfali's allegations. Specifically, the applicant does not contest that he entered into some loan transactions pursuant to which Mr Orfali would make payments in respect of, and have the use of, the Mercedes. The applicant also does not contest that the Mercedes was registered in his name, having taken out a loan on it which he could not apparently afford to repay without Mr Orfali meeting the loan repayments.
The applicant's brother Abdul, from whom he is not apparently estranged, has been charged with gun-related violence, specifically attempted murder in circumstances where Abdul had been subject to an FPO for a period of approximately 5 years. The presence of the applicant, together with his brothers, each of whom was subject to an FPO, at the applicant's Back Creek Road property raised serious questions in the public interest about the applicant's conduct in relation to the lawful use, if not the safe keeping, of his firearms: "The question specifically raised is whether the applicant gave or permitted his sister-in-law access to his firearm and in so doing, permitted his brother Abdul at least to be in close proximity of that firearm, as is suggested by the photographs obtained from the sister-in-law's telephone".
[12]
Approach
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.
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 issuance of an FPO against the person (s 75(1)(f). An internal review was applied for and duly determined (ADR Act s 55(3)). 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.
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.
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.
[13]
Public interest
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.
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.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, 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, [64] - [66] 66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
[14]
Fitness in the public interest
Both parties take the view that the approach to be taken in relation to the public interest in matters concerning FPOs was correctly stated in Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43, [50] - [57]. The construction there adopted is stated at [53]:
The language used, "not fit, in the public interest", is obviously materially different from the "fit and proper person" test in the Firearms Act's licensing provisions. It implies that even though a person may, like the applicant in this case, have an unblemished record, public interest considerations may render the person unfit and make it appropriate to issue an FPO against him or her.
Matters within the public interest include public protection, public safety and public confidence in the administration of the licensing system such as that for firearms (id., [56]). A wide range of dangers is taken into account, including dangers for which the person subject to the FPO is not responsible (id. [57]):
In this context, "what is in the public interest is very substantially the same question as whether there is a threat to public safety": Barrow v Commissioner of Police, New South Wales Police Service, 6 September 2004, unreported. Further, the threat to public safety may not result from any act or omission by the person against whom the order is issued. "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": Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149, [31].
The Hamid formulation was adopted by Montgomery SM in Dalziell v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 79, [49] - [50], that decision also reproducing some legislative history relied on by the applicant in Hamid:
At paragraphs [43] - [46] of Hamid Senior Member Walker also noted:
43 It was pointed out that in the New South Wales Ombudsman Review of Police Use of the Firearms Prohibition Order Search Powers (August 2016), it was found that of over 2500 separate searches conducted under the powers in s 74A, police found firearms, ammunition or firearm part in 2 per cent of searches. That suggested the power was being used more as a roving search power used randomly on FPO subjects, rather than "as is reasonably required". Given those statistics, the applicant had grounds to be concerned that she would be subject to unnecessary searches, which might continue indefinitely due to the inability to review the FPO at a later date. The Ombudsman had recommended that FPOs should expire after five years, as in Victoria, but the legislation had not been changed to reflect that recommendation.
44 The Ombudsman had said that police had informed him that an FPO would generally be made where the authorizing officer formed the view that a person's possession of a firearm or ammunition would compromise public safety, and set out a number of examples of the types of situations that might give rise to the issuing of an FPO. They included outlaw motorcycle gang (OMCG) membership, persons convicted of armed robbery, murder, conspiracy to murder, serious assault and other serious violence-related matters and persons involved in firearms trafficking. None of the listed circumstances applied to the applicant.
45 Further, the New South Wales Legislature had indicated that the classes of people to whom they expected the powers to apply included persons engaged in gun crime, persons who should not have access to guns because of their criminal record, persons involved in drug use or supply, and persons who police had good reason to believe were members of organized criminal groups. None of those circumstances applied to the applicant.
46 The submissions also noted that when introducing the relevant Bill, the then Premier, the Hon. Barry O'Farrell MLA, had stated: "Nothing in this legislation should concern innocent citizens of this State. The legislation will concern those who are involved in criminal activities involving guns. This legislation will ensure that those people have no place to hide". The applicant was clearly one of those innocent citizens and was not involved in criminal activities involving firearms. Yet an FPO had been issued against her.
[15]
Common law presumptions and proportionality
The applicant in his submissions stressed that application of the Hamid approach should take account of the wide scope of the powers granted to the police under an FPO:
"Undoubtedly, both the nature and extent of the powers in s 74A(2) are extraordinary (the practical realities of the exercise of the powers, the intrusiveness involved in the exercise is apparent from the videos and the humiliation/embarrassment they cause are apparent from the videos in HF1 and HF2). The powers in 74A(2) enable officials to encroach on fundamental common law liberties and protections at any time. For example, at common law, a police officer is not authorized, without the consent of the relevant person in possession or entitled to possession of the property and without any implied leave or licence, to go on private property. If he or she does go on to the land to do so, he is liable in trespass: Plenty v Dillon (1991) 171 CLR 635, 643 - 645.
The far-reaching powers in s 74A may only be exercised as reasonably required for the purposes of determining "whether a person who is subject to a firearms prohibition order has committed an offence under section 74(1), (2) or (3)", but they are exercisable without a warrant. And, significantly, the person who is subjected to detention, entry, search and seizure under the section need not be the person suspected of committing one of the prescribed offences. Thus, in this case the applicant could be subjected to an indefinite number of detentions, entries, searches and seizures at any time of day or night, for the indefinite future, in relation to firearms offences believed to have been committed by one of his wayward brothers.
There is in fact a presumption in statutory interpretation against the invasion of common law rights. The High Court has referred to "the general principle that a statute will not be construed to take away a common law right unless the legislative right to do so clearly emerges, whether by express words or by necessary implication": Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9, (1983) 152 CLR 328, 341; D Pearce, R Geddes, Statutory Interpretation in Australia, 8th edn., Thomson Reuters, 243 - 245.
The courts have stressed the need for a clear indication of an intention for common law principles, rights and privileges to be abrogated in relation, for example, to the right to exclude others from entry onto premises, and other tortious conduct: Coco v R [1994] HCA 15; (1994) 179 CLR 427.
[16]
Acts and circumstances relied on
The respondent submits that there is sufficient in the open material before the tribunal to raise serious concerns in the public interest about the applicant's conduct in relation to firearms, specifically in relation to allowing family members to use a rifle with a camouflaged stock identical to one of his rifles at his Back Creek Road property, in circumstances where that family member was not permitted to use or possess firearms. Those members included the applicant's sister-in-law, Maya Tabbaa, the wife of his brother Abdul.
The applicant admitted travelling to "the farm" on the occasion of his mother's birthday (exhibit R1, p 45). The respondent relied on some photographs taken by Maya's mobile telephone camera (id., 150 - 155). One of the pictures shows a family group with a birthday cake on a table. The applicant is not in the group and said he did not take the picture. As it was taken by Maya's telephone, that is probably correct. The applicant said in oral evidence that the group photograph depicted his mother's birthday party on 10 July 2021 at 779 Back Creek Road, but that he was not present and did not know about the gathering, which had been unplanned. He had not stayed at the property overnight.
The respondent submitted that the photographs on pages 150 - 153 showed Maya, in company with Abdul, firing a rifle identical with one of the applicant's. The applicant denied that it was his rifle or that the pictures were taken at his property at No. 779, pointing out that his brother Mohammed's property is nearby, at No. 705, and stated that he did not know the woman in the picture but had been told it was Abdul's wife (Maya) (exhibit A1, 21). He had not spoken to Abdul since about 2020 and had not attended his wedding or engagement. As the applicant contended, there is no open evidence to show that the applicant allowed family members to use the rifle shown in the photographs.
DS/C Jones said that he had not visited either No 779 or No. 705, and was therefore unable to identify the properties shown in the pictures. As they were taken at night in bush country it would be difficult to identify the location by sight in any event.
The respondent contended that the pictures on pages 150 to 153 showed Maya using the applicant's rifle with the camouflaged stock. The blurred photographs were stills taken from a video camera at night in bad lighting and it is difficult to discern much probative detail in them. There does appear to be a rifle in two of the pictures, but it is doubtful whether even an expert witness could identify it or the type of action it had, or whether the stock was camouflaged. Nor is it possible clearly to identify the shooter or her companion.
[17]
Driving history
The applicant was issued with a class C (car) learner permit on 6 October 2009 and an unrestricted class C car licence on 20 July 2010. Subsequently he was issued with an unrestricted class HR (heavy trucks) licence on 6 September 2011 and an unrestricted class HC (heavy semi-trailers) licence on 11 June 2019.
The respondent pointed out that within six weeks of being issued with his class C learner permit, he was fined $985 in November 2009 for stopping his vehicle on a path in a school zone, for not displaying "L" signs and being unaccompanied by a licensed driver. His learner permit was suspended on 29 November 2009, and then for three months commencing on 6 April 2010 for the November driving offences. On 18 March 2010 he was found by Bankstown Local Court to have driven while his licence was suspended, but no conviction was recorded.
In 2012 he was fined $618 for driving while using a mobile telephone and disobeying traffic lights. In 2016, and again in 2019, he was fined for exceeding the speed limit by between 10 and 20 km/h. On both occasions his HC licence was suspended (exhibit R1, pp 9 - 10). His learner permit was suspended on two occasions, in 2009 and 2010. The applicant's apparent contravention of COVID-19 travel restrictions on 10 July 2021 is of similar import (id., 19). He pointed out in evidence that his class C (car) licence had never been suspended, but his unrestricted HC licence was suspended twice.
The respondent contended that the above violations disclosed a pattern of non-compliance on the applicant's part with conditions of his driver licences, commencing shortly after the issue of his learner licence, and with road rules, including road safety offences such as the use of a mobile telephone.
The applicant's response was that the applicant's driving record was "fairly unremarkable", particularly given that the applicant had been a professional truck driver for more than 13 years. Although he had violated various traffic rules on different occasions, that had spanned a period of 13 years. The last infringement was on 11 July 2019 and the one prior was in September 2016. That, he contended, was hardly "a pattern of non-compliance".
The applicant's driving record is certainly unimpressive, including as it does two suspensions of his heavy truck licence and two of his learner licence. Fortunately, his contraventions did not result in injury to any person. His record has improved in recent years, however, and while it does not assist his case, it is not so conspicuously bad as to carry substantial weight in the consideration of whether he is "not fit, in the public interest, to have possession of firearms".
[18]
The references
The applicant tendered two unsigned references (exhibit A2), the first of which was from Shakir Kabbabe and dated 29 August 2022. Mr Kabbabe writes that he has known the applicant for about three years, during which time he has socialized with him and his wife in their home, with mutual friends, his family and extended family. At no time has he had any doubts about the applicant's character in a negative sense. He has always conducted himself in a most honourable manner, erring on the side of caution whether in his business dealings or family matters. He is always ready to lend a helping hand in charitable endeavours and working with community, volunteering to do a Bunnings barbecue or helping a friend. The writer says he has no hesitation in writing the character letter for the applicant in the hope that it would go some way to help them along and remove any doubts about his character.
The second is an undated letter from Ms Kathryne Hoy, transport manager of Mainfreight Distribution Pty Ltd. Ms Hoy states that she has known the applicant for just over 7 years, both at Mainfreight and in her previous workplace, and has always found him to be a lovely, caring, professional who is hard-working and enjoys being around people. She is aware that he has applied to have the FPO revoked and believes that should be the case because of his nature being mature and professional enough to hold [sic]. He has had a firearms licence for a long while now and has never used or intended to use firearms in any manner that is unlawful or unsafe.
He is a family man, a hard-working man who comes to work and goes home to his family and has made many lifelong freights [sic] while he has been an owner driver at Mainfreight. The establishment that the Mainfreight community represents knows that the applicant commands the upmost respect, as his family always has. A personal view is that he is a fit and proper person to hold a firearms licence. The two references can be given weight, but only one of them mentions firearms use and safety, and then only in a general way.
[19]
The confidential evidence
The applicant's representative submitted that the applicant had no ability to gauge what was to be found in the confidential material that would give concerns with respect to his character, conduct and associations, as to which the applicant was unable to be present or to hear evidence and make submissions relevant to the issues.
The applicant had therefore sought to have the FPO revoked on the basis that the applicant could not, nor should he be required to, meet and mount a case, especially as brought in the manner on which the respondent had sought to rely, not only on material that was confidential, but in covert circumstances such that it deprived the applicant of the ability to be able to make the assessment, and more importantly, realistically challenge that which was under consideration.
The applicant submitted that where reliance is to be placed on confidential evidence, the tribunal should be guided by Lucy SM's remarks in Grant v Commissioner of Police [2020] NSWCATAD 158:
23. In circumstances where the applicant is not entitled to see the confidential evidence, I have taken an approach to that evidence which is designed to achieve, as far as possible, "substantial justice." That is, I have given little or no weight to the following:
1. Allegations about the applicant, where the source of the allegations is not identified;
2. Evidence which is adverse to the applicant, where the applicant could have been, but was not, cross examined in relation to the substance of the evidence;
3. Speculative comments in the evidence.
24. It would be a denial of procedural fairness to make an adverse finding about a matter which was not put to the applicant in cross examination (see BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 126 at [51]). Whilst there may be some circumstances in which s 64(1)(d) of the NCAT Act implicitly permits such a denial of procedural fairness, I have not made adverse findings based upon the confidential evidence where I consider that a question about the substance of the evidence could have been put to Mr Grant in cross examination, without revealing confidential information.
25.I note that it would also be an error of law to make a finding based solely on an allegation, in that this would be a finding without any probative evidence to support it (see BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 126 at [49] and [51]).
[20]
Conclusion
The applicant is a man aged 34 who is married with three children. He has no criminal convictions other than a s10 dismissal for driving while suspended, and no history of violence. His traffic record is unimpressive but has improved in recent years. He has held a firearms licence for 4½ years with no contraventions or adverse notices concerning firearms use and storage. He has been cooperative in his interactions with police, including in connexion with their seizure of his firearms.
He runs a successful trucking business, doing a substantial amount of work for Bunnings and being well regarded by at least one substantial transport company, according to Ms Hoy's reference. His brothers Mohammed and Abdul have serious criminal records, but he claims to have been estranged from Abdul for some 2 years and professes to know nothing about the FPOs issued against them.
There are, however, some serious firearms matters alleged against him. One is that a shooting party was held at his rural property at 779 Back Creek Road, B**** on 10 July 2021 where he was admittedly present at the time, and at which he allowed unlicensed persons to use certain distinctive firearms registered to him. On all the evidence, open and confidential, I find on the preponderance of probabilities that on that occasion the applicant knowingly made some of his firearms available to unlicensed persons for use on his rural property. I also find that he is not estranged from either of his brothers (though having less contact with Abdul than with Mohammed) and that, partly as a result, he has links with an organized crime network.
Most importantly, I find on all the evidence that Zahir Orfali's account of his confrontation with the applicant on 4 and 6 August 2019, at which the applicant threatened him with a pistol and added that he intended to visit Mr Orfali's house to "sort it out", is correct in all material particulars. That leads to the conclusion that the applicant prima facie committed a serious offence involving an unlicensed handgun. As was indicated above, behaviour of that nature in itself justifies the issuance of an FPO against him.
In sum, the applicant falls within the class of persons whom the Legislature intended could be made subject to an FPO, as the tribunal stated in Wilson (at [35] - [37]. In terms of s 73(1), he is "not fit, in the public interest, to have possession of a firearm". The decision under review must be affirmed.
[21]
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 exhibit CR6, or matters contained in the Confidential Material or confidential exhibit CR 6 is prohibited.
3. Pursuant to s 64(1(d) of the CAT Act, the disclosure of the Confidential Material and confidential exhibit CR6, or matters contained in the Confidential Material and confidential exhibit CR6, 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 proceedings, including confidential exhibit CR6 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.
[22]
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: 28 September 2022
Parties
Applicant/Plaintiff:
Fawaz
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
The issue in this application is thus whether the applicant is or is not fit, in the public interest, to have possession of a firearm.
The applicant pointed out that he has a reading problem, as he has difficulty reading and comprehending English. He had the affidavit read to him and affirmed it on that basis.
Referring to DS/C Jones's statement dated 7 September 2021 (exhibit R1, pp 42 - 53), he stated that the property at 705 Back Creek Road belongs to his brother, Mohammed Akram Fawaz, and he has no association with it or interest in it. He spoke with DS/C Jones twice on 25 August 2021, at 6:00 a.m. and 7:15 a.m. as he was on his way home. He had already agreed to return home after the first telephone call at 6:00 a.m., and it took him over an hour to travel from Shellharbour to his home at Bankstown where the search was being undertaken.
He cooperated with the police at all times and never interfered with the search or their personnel, and answered the questions truthfully and accurately, and more particularly volunteered information himself in response to DS/C Jones telling him what they were looking for at that time. He requires access to the receipts that were taken, together with other documentation, to assist him in presenting his case to the tribunal.
The reference to his volunteering a bolt that was said to have been found "at his farm" was not correct. He told the officer that the bolt was found at another property, "Emma Ville", which was a house they rented for a shooting trip, just before the search. He found the bolt and kept it in his garage. He also volunteered to the police officer that apart from the bolt, he also found a magazine at the same property and put it in his garage. He volunteered information to enable police to locate the items immediately without the need to rummage through his garage contents. He had never withheld anything from the police about what he had in his house in the nature of firearms or parts.
He had never been shown a video of unregistered persons using firearms on his property on 10 July 2021. He was shown a photograph in the respondent's bundle of documents (exhibit R1) at either p 150 or p 151. The photograph depicted a rifle that did not belong to him being used by a female whose name he did not know. He did not know how she came to have the rifle or in what circumstances she came to use it, but it was not his rifle and he had no knowledge of how she came to be in possession of it.
From information given to him, he believes she is his brother's wife, but he does not know her name because he and his brother have been estranged for some time and he did not attend his wedding, nor had he ever been introduced to his wife. He was also shown a photograph of a man using a pistol at a location he is not familiar with. DS/C Jones asked him whether it was his pistol, which he denied as he had never held a pistol licence, nor had he ever possessed a pistol.
For some years he had been a customer of a gun shop named Razorback Outdoors, where he buys his ammunition. He had purchased ammunition from them for a 44 Magnum, which is a rifle, and the 9 mm Luger ammunition is also for a rifle. He had also been a customer of Braidwood Outdoors from time to time, and purchased that ammunition, not for a handgun, but for the rifle which takes the 9 mm Luger round, and while that ammunition is for a handgun it is also usable in a rifle, and he has a licence for that rifle. He has never indicated to anyone at Braidwood Outdoors that he has an H licence. His bank statements (exhibit HF - 3 to the affidavit, pp 1 - 075) corroborated his evidence that he purchased the ammunition in accordance with his licence requirements.
The criminal proceedings against his brother Abdul Fawaz and the matters concerning the proceedings for which he is before the court are matters that are not referable to the applicant, nor did he have any knowledge of them. He had never been questioned about them, nor had he ever been placed under arrest for the purposes of questioning about those activities of his brother. He had not spoken to his brother for approximately 2 years and they had been estranged for all of that time. He has no contact with him. It is true that his family attended his mother's birthday on about 10 July 2021 at B****, and he was on his farm at 779 Back Creek Road, but his brother Abdul was on his brother Mohammed's property at 705 Back Creek Road.
The activities depicting females holding firearms and firing them have nothing to do with him. His wife and children were with him at the time, but none of his family members were in any way using firearms, as they are not licensed. He could not be responsible for the activities of family members, especially where those activities involving firearms were not undertaken with his knowledge, or for that matter using his firearms as depicted in the photographs.
He had never been charged with any offence. His traffic record as a professional driver is not incident-free, but nevertheless does not show matters of any extraordinary driving that would warrant his being considered an unfit person as a driver. He had never lost his driver licence. Equally, he has no criminal antecedents at all. He has been a firearms licence holder since about 2017 without incident. He has no offence registered against him, nor has he ever been the subject of proceedings in respect of firearms breaches.
He has undertaken employment and contributed to the community, raising a family and living what he believes to be a life without any incident whatsoever. He enjoys shooting and would suffer from the loss of his licence as he is a recreational shooter and enjoys that pastime, understanding it to be a privilege and observing it as such by obeying the law. Whatever may be the problems his brother has, or the matters that he has to face, they are not of his doing nor his responsibility.
Cross-examined by Ms Douglas-Baker at the hearing, the applicant identified the family members in two photographs taken on the occasion of his mother's birthday at 779 Back Creek Road (exhibit R1, p 155). He was not present on that occasion and did not know about it, as it had not been a planned function. He last spoke to Abdul maybe in 2020, as there had been many arguments between them, but he spoke to Mohammed every day. He did not know whether both brothers were subject to FPOs. His mother had told him about Abdul "after all this happened". His firearms had been seized after the FPO had been issued, and they included a bolt action rifle with a telescope and a camouflaged stock. The rifle which is shown being held by woman (exhibit R1, p 150) was similar to his, but was not his.
He had obtained a learner permit for his driver licence in October 2009 (exhibit R1, p 10), but before then he had used an international licence. He had to cease using it when he obtained permanent residency and his L permit. He had not known that he could not drive alone on that permit, as he could do so on his international licence. He operated transport for Bunnings, under the company name Nour Corporation Pty Ltd, and drives his own truck, which is owned by the company. The company owns another truck and employs a driver. Mr Orfali had been one of his drivers.
He had owned a Mercedes-Benz AMG, which he had purchased from Mazda at Liverpool and sold it to Mr Orfali at his request. They had agreed that the applicant would buy it and keep it in his own name and Mr Orfali would make monthly payments of $1437 to him. The latter owed him another $2500, and all up he was owed $7000. Mr Orfali did not have a toll tag and accrued $3700 in toll fines, which were issued to the applicant as the owner of the vehicle. The fines were thus in his name (exhibit R1, p 63) and the registration of the truck was cancelled.
Mr Orfali had been prosecuted on drug charges. He lost his licence and resigned from the company. The applicant had raised the question of the fines and other matters with Orfali, including that the applicant had used a $7000 loan from the applicant to buy drugs and did not repay the loan. They did not negotiate a payment plan, as Orfali was unemployed.
In relation to event report E72136176, 6 August 2019 (ibid.), he said he could not recall making any threats to Orfali but had told him that he could not put his toll fines on the applicant's company, as he had a good record. He had taken possession of the car and had said Orfali could recover it when he repaid the money he owed. He had never threatened him with a Glock, had never had a pistol and had never threatened to go to Orfali's family home.
The discussion with police about the $5000 debt owed to him (exhibit R1, p 64) took place at the police station, not at his home. Contrarily to the narrative in the event report, when they came to his house in August 2019, they asked no questions but simply took possession of his guns. He also told the police that he had arranged with Orfali to purchase the Mercedes in his own name for $55,000, plus options and extras, on the basis that Orfali would make monthly repayments, but although he had the use of the car, he only made two payments, "then disappeared". He was left with a total debt of $74,000, "or something like that".
The applicant said he himself had never incurred any toll fines, but when he was stopped by the Highway Patrol they had told him his registration had been cancelled for non-payment of fines accumulated by Orfali.
35 He had owned the Back Creek property since 2017. It was 130 acres and was north of B******. His brother Mohammed's property was 250 acres. Ms Nicole Pearce and Mireille Smith were both wives of friends of his. He had purchased the Manildra property two years ago, but as he could not obtain a loan, he made an arrangement with Nicole, so that he could buy the Glenfield property. He lost $70,000 on the transactions, because he needed to raise the money for the deposit. He had paid Nicole first and then had sold the property to Mireille. He had previously been paying $1800 a month to Nicole to enable her to make payments on her own mortgage, which stood at $192,000. The sale raised what he needed for the 20 percent deposit, although he lost $74,000, but he did not want to lose the property at the auction.
In re-examination, the witness said that a camouflaged finish for a rifle could be obtained from the shops. Orfali had used the money the applicant had lent him to buy drugs. Orfali had had problems with the police, and over domestic violence. He had served jail time. As regards the purchase of Manildra, he paid Nicole $1800 a month for her mortgage, pursuant to their agreement. Exhibit HF - 3 to his affidavit (exhibit A1) recorded at p 31 one such payment of $1800 from his company account to "Nicole Pearce Manildra" on 17 February.
The applicant also tendered two character references (exhibit A2), the contents of which will be outlined below.
He did not speak to the applicant at 6:00 a.m. At 7:00 he was attending a police briefing at Bankstown police station in preparation for executing the search warrant. He spoke on the telephone to the applicant a little after 7: 28 a.m., when police were admitted to the property by Mrs Zeinab Abou Ghnaim. The applicant's account of saying he had found the bolt "at a farm" was correct.
The third affidavit, dated 9 August 2022 (exhibit R5), was prepared following further enquiries into the purchase of firearms and ammunition from four sporting goods stores, Safari Firearms at Bexley, Razorback Outdoors at Richmond, Braidwood Outdoors at Braidwood and Hawkesbury Outdoors at Richmond. During the course of their investigations, police obtained from TPG telephone service records for Abdul Fawaz. The records disclosed the following communications or attempted contact between Abdul Fawaz and the applicant:
1. On 23 July 2020 at 5:53 p.m., a telephone call from the applicant to Abdul, which was not answered.
2. Between 6:11 p.m. and 6:42 p.m. on 27 July 2020, a total of 21 short service messages [SMS] between Abdul and the applicant, with the first and last of the 21 being sent by the applicant.
DS/C Jones was not required for cross-examination. Confidential evidence was adduced at a confidential hearing pursuant to s 49(2) of the CAT Act on 12 September 2022.
Event report E72136176 (id., pp 61 - 73) related to Zahir Orfali's claim that the applicant had on 4 and 6 August 2019 threatened him with a gun in connexion with an unpaid debt. What is of significance is that there was no action taken, nor were any charges preferred against the applicant, and critically at p 67 appeared the entry "NO FORMAL ACTION" and the applicant's firearms were returned to him (id., 72).
Event E74200550, 10 April 2020, describes how a man named Mohammed Bassam presented at Bankstown Hospital with a gunshot wound to the leg. That matter, though serious, had no possible bearing, nor for that matter was as the subject of any proceeding concerning the applicant. It was a public place shooting said to be firearms-related, but having no connexion with the applicant.
Event E84227462 (id., 92 - 96) describes the arrest of the applicant's brother Abdul on 13 July 2021 on a charge of the attempted murder of Mohammed Saab on 26 August 2020. This matter, although again serious, was irrelevant to the applicant, who was neither charged with the offences for which his brother is now before the courts, but more importantly which are denied by the applicant in his affidavit of 13 May 2022, inasmuch as he maintains his estrangement and the pre-existing estrangement from his brother at the date of the alleged attempt and is equally indicative of matters that are not probative and have been clearly met and responded to by the applicant.
Abdul was the subject of an FPO issued on 9 April 2015, but again, not in circumstances where the applicant was privy to, or for that matter connected with, any of the matters said to be relied on. A further event report relates to a further FPO taken out against Abdul. The rest of exhibit R1, pp 116 - 149 are matters relevant to the applicant's brother, but in no way able to be relied upon, or for that matter able to be addressed because of the resort to public interest immunity.
The rest of the material in exhibit R1, at pp 150 - 155, had been answered by the applicant in his affidavit. He attended a birthday party with other family members but did not participate in the use of firearms displayed by female family members at that party for his mother, and more importantly female members with no association with him other than that they were related by marriage, in circumstances where he knew nothing of them because of the estrangement between the applicant and his brother Abdul.
There is nothing that would disqualify the applicant, nor has he been convicted of any offence that would be caught by s 11(5) and cl 5 of the Regulation, and therefore there was no enlivening of any restriction on the tribunal's jurisdiction as is applicable in s 75(1A).
After outlining the relevant law, the submissions posed the question of where were the incidents said to concern or disclose traits within the applicant's character indicating his inability to hold a firearms licence. No action had been preferred against him and the event report on his alleged argument in 2016 is not only prejudicial, but should be excluded pursuant to s 135 or s 137 or both. There was no suggestion of any association with outlaw motorcycle gangs or of any mental health concerns.
Unlike the situation in Salter v Commissioner of Police [2021] NSWCATAD 37, there was no conduct by this applicant concerning any charge, let alone firearms charges, nor was there any ability to gauge what is to be found in the confidential material that would give concerns with respect to the applicant's character, conduct and association, as to which the applicant is unable to be present or to hear evidence and make submissions relevant to the issues.
The applicant therefore seeks to have the FPO revoked on the basis that the applicant cannot, nor should he be required to, meet and mount a case, albeit as brought in the manner in which the respondent has sought to rely upon material which not only is confidential, but in covert circumstances such that it has deprived the applicant of the ability to be able to make the assessment, and more importantly, realistically challenge what is under consideration.
In oral submissions at the hearing, the applicant reiterated those points, commenting that the COPS database reports were not helpful. The term "not fit, in the public interest" had been explained by the tribunal in Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43, [53] and was a broad concept extending to matters going beyond the applicant's character, including matters such as public safety. But the phrase had to be considered, and the discretion exercised, with regard to the statutory context, which included s 74A(2).
That provision conferred broad and intrusive powers on police, that might be exercised at any time and on repeated occasions without any forewarning to the relevant person, without any need to first obtain permission or authorization (such as a warrant) and without any requirement for the officer to reach a state of satisfaction (for example that the person might have committed a breach) before exercising the power. Further, it was not clear whether s 74A(1) restricted the exercise of the powers in s 74A(2) to the purposes specified in s 74A(1).
Those powers enabled officials to encroach on fundamental common law liberties and protections at any time. Consequently, there needed to be proportionality between the relevant circumstances and the exercise of the power to issue an FPO in s 73(1): see, e.g., Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 130, 171.
As the respondent submitted, the public interest also encompasses "voluntary" association with persons that have significant criminal history where that association may create the danger to the public interest with which the Commissioner is concerned (see Hamid, supra; Dalziel v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 79). But this was not a case of 'voluntary' association. The relevant "association" relied on was between the applicant and his brother Abdul, which was not a "voluntary" association.
The applicant is a hard-working family man of good character and a fit and proper person. It must be inferred that, at least for the duration of the nearly 4½ years he held a firearms licence, the Commissioner accepted that was the case. He has held a firearms licence for that period without any blemish and has abided by all applicable requirements. He has never been charged with any firearms-related offences and has never been convicted of a crime (other than a s 10 dismissal for driving while suspended).
In all his recorded interactions with police, he has been cooperative, forthcoming and truthful. The searches performed by police at two of his properties did not identify any infringements or breaches of any relevant firearms regulatory requirements.
He did not fall within the class of persons whom the legislature intended to encapsulate as the tribunal stated in Wilson v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 274, [36]:
[T]he New South Wales Legislature had indicated that the classes of people to whom it was expected the powers to apply, included persons engaged in gun crime, persons who should not have access to guns because of their criminal record, persons involved in drug use or supply, and persons who police had good reasons to believe were members of organized criminal groups.
As was the case in Wilson, the applicant does not fall into any of those categories. In Wilson, the tribunal made that finding [setting aside the FPO] despite the applicant having a criminal history that involved imprisonment for 4 years (with a non-parole period of two years).
The applicant's driving record was fairly unremarkable, especially for a professional truck driver for more than 13 years. His last infringement was on 11 July 2019 and the one before was in September 2016. That was hardly a pattern of non-compliance. The asserted infringement of COVID-19 public health orders was made without the particular version of the orders being before the tribunal, making it impossible to test whether in fact there was non-compliance. In any event, an unremarkable number of traffic infringements and infringement of the COVID-19 orders (assuming it was true) are not remotely within the class of considerations that might enliven the discretion in s 73(1).
In relation to the respondent's reliance on the allegations of Zahir Orfali, it is to be noted that they are unsubstantiated and therefore not rationality probative evidence. That is particularly so as the event report records that he provided several versions of the incident and changed his story several times. No charges were laid and no statement taken, nor was he called to give evidence, giving rise to an inference under Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. The applicant denies making any threats to Mr Orfali.
The applicant in cross-examination had given credible evidence about his dealings with Mr Orfali. He had loaned him money to pay his rent bond. Again, Mr Orfali had not been called.
The applicant's evidence was that the conduct shown in the photographs in pp 150 to 155 of exhibit R1 were not taken at his property at 779 Back Creek Road, and the respondent does not contend that the rifle said to be shown belonged to the applicant, only that it was "identical". No evidence from a suitably qualified person was called to substantiate that assertion. Nor is there any evidence to show that the applicant had any knowledge of the conduct and there is no basis for the submission that the applicant "allowed" family members to use a firearm in those photographs.
Nor was there any evidence to show that the photographs were taken on the applicant's property, and the applicant denies it. His brother Mohammed owns the nearby property at 705 Back Creek Road. DS/C Jones had never visited the properties and was not in a position to identify the location.
In all the circumstances, it was plain from the open material alone that the applicant's conduct in respect of firearms was such that it was open to the tribunal to find that the applicant is not fit in the public interest to have possession of a firearm.
In oral submissions at the hearing, Ms Douglas-Baker for the respondent relied on the written submissions and pointed out that the chapeau to s 74A(1) made it clear that the powers in s 74A(2) were available to police only in limited circumstances, in the context of investigations into the possible commission of an offence under s 74(1), (2) or (3).
In relation to the photographs showing a person firing a rifle at night, there was evidence that they were taken on 10 July 2021. There was also evidence that the persons photographed were present at the applicant's property on 10 July.
Similarly in relation to powers to permit search for, and seizure of, property: Crowley v Murphy (1981) 52 FLR 123, 141; Entick v Carrington (1765) 19 How. St. Tr. 1029, 1066; Olmstead v United States (1928) 277 US 438, 474 (Brandeis J dissent); to infringe personal liberty: Williams v R [1986] HCA 88, (1986), 161 CLR 278, 292; or to limit freedom of movement: Kruger v Cth [1997] HCA 27, (1997) 190 CLR 1; Pearce and Geddes, op. cit. supra, 259.
Each of the above common law freedoms is potentially liable to infringement under s 74A(2). In the case of s 74A(2) there is no great doubt about the Legislature's intention, but the presumption can appropriately be given effect when applying the subsection to an FPO.
The applicant also submitted that in this context there must be proportionality between the relevant circumstances and the exercise of the power in s 73(1). "For example, it is not proportionate to issue an FPO to a person merely because he or she has had their driver's licence suspended".
That contention could be regarded as an analogous way of conceptualizing the presumption against the invasion of common law rights. At all events it has secured judicial recognition: "The term 'proportionality' in Australian law describes a class of criteria which have been developed by this Court over many years to determine whether legislative or administrative acts are within the constitutional or legislative grant of power under which they purport to be done": McCloy v New South Wales [2015] HCA 34, [3], (2015) 257 CLR 178.
Thus, "A key aspect of whether a limitation on a right can be justified is whether the limitation is proportionate to the objective being sought. Even if the objective is of sufficient importance and the measures in question are rationally connected to the objective, the limitation may still not be justified because of the severity of its impact on individuals or groups": Parliamentary Joint Committee on Human Rights, Commonwealth Parliament Guide to Human Rights, Parliament of the Commonwealth (2014), 8.
The federal Law Reform Commission has noted that "'Proportionality' is… a fluid test which requires those analysing and applying law and policy to have regard to the surrounding circumstances, including recent developments in the law, current political and policy challenges and contemporary public interest considerations": Australian Law Reform Commission, Traditional Rights and Freedoms: Encroachments by Commonwealth Laws, ALRC Report 129, 12 January 2022.
The High Court in McCloy indicated that the proportionality concept applied to administrative or executive acts (such as an FPO). The Law Reform Commission's conclusion thus provides guidance for the tribunal in cases such as the present one: "Importantly, the use of proportionality tests suggest that important rights and freedoms should only be interfered with reluctantly - when truly necessary" (id., 2.82).
In the practical context of an FPO, the tribunal needs to be satisfied that there is probative, compelling evidence supporting the circumstances relied on for the exercise of the power. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, (1992) 110 CLR 445, 446 provides guidance:
[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 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 as 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].
The video recordings from which the photographs are taken are much clearer, however, and a camouflaged stock can be seen. The applicant's evidence was that camouflage of that kind could be purchased in the shops, but even so, it must be very unusual to wrap a rifle stock in that way, and the appearance of the rifle is thus very distinctive. The open evidence to link the activity shown in the photographs and videos to the applicant or to show that he was involved in it is of a circumstantial nature. Further probative evidence on that point would be needed for a positive finding that would subject the applicant to possible exercise of the powers in s 74A(2).
On 6 August 2019 applicant was the subject of a report to police by Mr Zahir Orfali, who alleged that the applicant had threatened him with a handgun. He reportedly "provided several versions and changed his story several time[s] until Police were able to obtain the following version" (exhibit R1, p 63).
Mr Orfali claimed that he and the applicant were friends and had known each other for several years. He had been an employee of the applicant in the applicant's truck driving business. As he had been unable to obtain a loan for a car, the applicant had agreed to obtain a vehicle loan in the business name of his company, and he and Mr Orfali made an oral agreement pursuant to which the latter would make monthly loan repayments. They agreed that a Mercedes-Benz AMG bearing New South Wales registration DYW 27V would remain registered in the applicant's name until the loan was finalized.
As Mr Orfali did not have a toll tag, he "racked up" over $2500 in toll fines, which were issued to the applicant in respect of the Mercedes. He said that the applicant had been summonsed to attend court for failure to pay the fines, and that he, Mr Orfali, had made arrangements to enter into a payment plan to pay the fines. He said, however, that the applicant was dissatisfied with that arrangement (ibid.) and that on 4 August 2019 he had attended at the applicant's house to discuss the situation. When he arrived, the applicant was holding what he described as "a 9 mm Glock pistol or similar and threatened him that he needed to remove his name and pay the fines or he would go to his family home and sort it out".
The applicant took the Mercedes from him and said he would not return it until the vehicle was paid for, or the loan for it was repaid. He said that on 6 August 2019 he again spoke with the applicant and told him that he no longer wanted the car and was not going to pay any further instalments for it and that the applicant could keep it. He said this made the applicant angry, and the applicant threatened him again, but Mr Orfali was reportedly not specific as to the content or nature of the threat.
Mr Orfali also told police that he owed the applicant $2800 that he had borrowed from him and said, "I don't like talking about the past and that is [a] private matter" (id., 64). On 6 August 2019 police attended at the applicant's Bankstown property to conduct a safe storage inspection. They found all firearms registered to the applicant accounted for and secured safely. They decided, however, to suspend the applicant's firearms licence on the ground that it was not in the public interest for him to be in possession of the firearms (ibid.).
The applicant's response at the time reportedly was to say that Mr Orfali owed him about $5000 that he had loaned him and was refusing to make the repayments on the Mercedes, leaving the applicant stuck with a loan amount of $74,000 that he could not afford. He admitted meeting with Mr Orfali on 4 August to try to work it out, but denied making any threats towards him. Police noted that Mr Orfali appeared "genuine and truthful in the version he provided" and the applicant was "cooperative with Police when seizing his licence and firearms". Mr Orfalli twice declined to make a statement to police No charges were laid in relation to the report and the applicant's firearms were returned to him.
This is a serious allegation which, if true, would in itself justify the issuance of an FPO. The applicant denies making any threat to Mr Orfali or that he has ever possessed a pistol, but agrees that Mr Orfali owed him money and had refused to pay it. "That", the applicant's counsel contended, "might explain why Mr Orfali was motivated to make assertions to police, but not provide a statement".
There is no open corroboration for Mr Orfali's hearsay assertions, and the version in event report E72136176 is a reconstitution by police attempting to reconcile the various versions of Mr Orfali's complaint. He made no statement and was not called to give evidence. While Jones v Dunkel does not apply in merits review proceedings, there being no onus of proof in such cases, the absence of direct evidence from the complainant on such a serious matter could lead to the conclusion that the open evidence fails to establish the truth of the allegation on the preponderance of probabilities.
Event report E59767652 (exhibit R1, pp 54 - 56) relates to the service of an FPO on one Mohammed Bazzi on 14 January 2016. No connexion with the applicant appears from the report. Event report E74200550 describes an incident on 10 April 2020 involving a man named Mohammed Bassam who presented at Bankstown Hospital with a gunshot wound to the leg. Police recorded that he "was unable to be spoken to at length regarding the matter and states he could not recall anything of the incident, including how he was transported to hospital and by whom" (ibid.). Nothing in the report indicates any clear connexion between the incident and the applicant. The respondent did not appear to press either of those reports.
Event report E84227462 (id., pp 92 - 96) describes the arrest on 13 July 2021 of the applicant's brother Abdul Fawaz on a charge of the attempted murder of Mohammed Saab on 26 August 2020. The report identifies the applicant as having been present on 10 July 2021 at 779 Back Creek Road together with at least seven other family members (eight additional names are redacted), including Abdul. All were issued with infringement notices for travelling from a COVID-19 hotspot area. Nothing in the report links the applicant with the attempted murder, which is currently before the courts.
At the time of the alleged offence, Abdul had been subject to an FPO for a period of approximately 5 years. The applicant submits that the association relied on by the respondent was not "voluntary" as understood in Hamid and Dalziell, as they are brothers. Be that as it may, brothers may voluntarily choose to have a greater or lesser degree of contact with their siblings. The applicant maintains his estrangement and pre-existing estrangement from his brother at the date of the alleged attempted murder (exhibit A1, para. 22).
In his affidavit he also said he had no knowledge at all of those activities, and had never been questioned about them. Nor had he ever been placed under arrest for the purposes of questioning about his brother's activities. He had not spoken to his brother for approximately two years and they had been estranged for all of that time. He has no contact with him.
He admits that his family attended his mother's birthday party on or around 10 July 2021 at B***** , and that he was on his farm at 779 Back Creek Road, but says his brother Abdul was on his brother Mohammed's nearby property at 705 Back Creek Road, B***** (ibid.). He contends that even if Abdul is convicted of violent crimes, that of itself could not be a basis for the issuance of an FPO against himself, especially as he does not associate with his brother and has not done so for years.
The applicant's account of his estrangement from Abdul is not inconsistent with the telephone records attached to DS/C Jones's open affidavit of 9 August 2022 (exhibit R5). His affidavit describes how, in the course of investigations, police obtained from TPG telephone service records for Abdul Fawaz, copies of which the deponent attached: "The records disclosed the following communications or attempted contact between Abdul Fawaz and Hilal Fawaz:
1. On 23 July 2020 at 5:53 pm, a telephone call from Hilal Fawaz which was not answered.
2. Between 6:11 pm and 6:42 pm on 27 July 2020 a total of 21 short service messages (SMS) between Abdul Fawaz and Hilal Fawaz, with the first and last of the 21 SMS sent by Hilal Fawaz" (exhibit R5, p 4).
One missed call and 21 SMSs in a space of half an hour a week later, the latest being over 2 years ago, does not contradict the applicant's account of his estrangement from Abdul. If anything, the volley of SMSs in only 31 minutes could be viewed as more suggestive of some kind of dispute than of any voluntary association. Consequently, the open evidence is insufficient to show involvement by the applicant in the criminal conduct of Abdul Fawaz.
To the comments in Grant, I would only add a corollary that where confidential evidence flatly contradicts the open evidence on a material point, some corroborative evidence is needed before substantial weight can be placed upon it.