Hariri v Commissioner of Police

Tribunal's approach

1. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28] - [34].

Evidence

1. The Applicant swore an affidavit dated 7 May 2021. He gave evidence and was cross examined. His former solicitors provided helpful submissions.
2. In addition to the documents (including two supplementary bundles) filed pursuant to s 58 of the ADR Act, the Respondent relied on the affidavit of Senior Constable Jonah Green dated 1 June 2021 which annexed CCTV footage of the Applicant's attendance at his wife's workplace on 2 July 2019.
3. The Respondent also relied on an affidavit by Isabella Ottavia Penne affirmed 15 September 2021 which annexed a copy of an interview with the Applicant's ex-wife, in relation to which I made confidentiality Orders under s64(1)(b) and (d) of the CAT Act.

What led to the revocation of the Applicant's licence?

1. On 2 July 2019, the Applicant was arrested and charged with common assault under s 61 of the Crimes Act 1900 (the charge), after he attended his ex-wife's workplace where he acted in what Police considered to be an abusive and intimidating way towards her. In addition, a Provisional Apprehended Violence Order (PAVO) was issued against the Applicant, which included a condition that he not contact his ex-wife, unless through a lawyer. The following day, the Respondent decided to suspend the Applicant's licence. Later, on 1 November 2019, the charge and PAVO were withdrawn.
2. On 14 January 2020 a further domestic violence incident occurred when, according to Police records, the Applicant confronted his ex-wife at a Bankstown shopping centre.
3. The Commissioner decided to revoke the Applicant's licence on 1 April 2020, on public interest grounds: s 24(2)(d) of the Act and cl 20 of the Regulation.

Allegations of domestic violence

1. The records produced by Police indicate that there were incidents between the Applicant and his ex-wife which led her to make reports to Police concerning the Applicant's conduct in circumstances where she felt intimidated and fearful.
2. Firstly, as outlined above, on 2 July 2019, the Applicant attended his ex-wife's place of work. The incident was captured on CCTV footage, a copy of which was annexed to the affidavit of Senior Constable Green. The Applicant said he had seen the CCTV footage when he went to court.
3. The Applicant's ex-wife contacted Police to report the incident and said she was concerned and fearful that their conflict was escalating and that the Applicant might attend her work, home or their son's school again and that he might again assault her.
4. [NOT FOR PUBLICATION]
5. The Applicant said in his evidence that there had been a disagreement in relation to their son and he had gone to his ex-wife's workplace. She told him to leave and she pushed or slapped him; she had "assaulted" him, he said.
6. He said she told him to leave and had pointed him towards the door. He denied that she had asked him to leave a number of times; he said that when she asked him to leave, he did so. He said she then had pushed him and grabbed him by the shirt when he was trying to walk out. He denied she was just trying to usher him out. Later in his evidence he described the contact as a "slap" and said his ear still rings. He said she was abusive towards him and his family and spoke in derogatory terms about his new wife; she was "running off at the mouth". He said he was "peaceful" whereas she was "going nuts". The Applicant denied that he became abusive towards his ex-wife; he denied that he "gets angry". He said he spat in her face, but later, in cross-examination, denied that he spat at her. He said he was speaking loudly after she had pushed and slapped him. He said that maybe some spit got on her, or he might even have just sneezed. He then said he could not remember whether he had spat at her. He also denied that he had purposely spat on her. He denied trying to intimidate his ex-wife. I observe that in subsequent discussions with Police the Applicant's ex-wife somewhat resiled from her assertion that the Applicant had spat at her. The Applicant's ex-wife was not called to give evidence in these proceedings.
7. As a result of the exchange between the Applicant and his ex-wife, the Applicant was arrested and charged and a PAVO was issued against him. In the days after the charge was laid, the Applicant's ex-wife suddenly became unco-operative with Police, and did not give evidence when the matter was before the Court. It was asserted by the Respondent that Police believed that she may have been contacted by the Applicant's solicitor about the charge, but there is no evidence to that effect, and I have disregarded that assertion. The charge was withdrawn on 1 November 2019; it was not dismissed as the Applicant asserted in his affidavit. The PAVO was also withdrawn.
8. The Applicant said in his evidence that the judge had said he had been "aggravated" and invited him to press charges against his ex-wife. This contention was not supported by any other evidence, nor was it the subject of submissions by the Applicant's former representatives. I have reservations that such an observation would have been made from the bench.
9. Secondly, Police records indicate that after the PAVO was issued on 2 July 2019, and despite the condition prohibiting direct contact, the Applicant subsequently contacted his ex-wife by telephone.
10. Thirdly, Police also recorded a further domestic violence incident on 14 January 2020, in which the Applicant confronted his ex-wife, who was accompanied by 3 "witnesses", at a Bankstown shopping centre. His ex-wife told Police that she felt frustrated, scared, and intimidated due to the Applicant's erratic behaviour from previous incidents. However, she did not wish to proceed with the matter at court, and asked that the witnesses not be contacted, although one volunteered information to Police. She also did not want the Applicant to know she had complained to the Police again. The Applicant said he had been unaware of the allegations which were detailed in the s 58 documents which he could not remember reading, but it "didn't interest him".
11. In his affidavit the Applicant denied the entirety of the domestic violence allegations. He contended that they were made by his ex-wife in spite with the view to smearing his reputation. Through his former legal representatives, he asserted that his ex-wife lacks credibility and reliability. In his evidence the Applicant said that he and his ex-wife were married for about 24 years, during which time there had been no domestic violence issues, nor were there any allegations of such issues. He had never slapped her or the children. He said that during their marriage his wife would "scream" at him, and he would just go and sit in the backyard. He said his ex-wife became upset when he remarried (although she has now remarried herself, he said). He repeated a number of times that he is not an angry or aggressive person. He submitted that it was unlikely that, in view of their long history, that it was only after they separated that there were domestic violence issues.
12. [NOT FOR PUBLICATION]
13. I do not accept the Applicant's explanation of his actions towards his ex-wife. I viewed the CCTV footage of 2 July 2019. Although it was not accompanied by audio, it clearly shows a heated argument between the Applicant and his ex-wife, during which the Applicant's wife attempted to manoeuvre him out of the shop. The Applicant appeared to spit in his ex-wife's face. The contact with the Applicant's person made by his ex-wife was not clear on the footage, but from what could be observed, I find it implausible that the Applicant's ear should still ring from the alleged ferocity of the push/shove/slap.
14. The Applicant's subsequent interactions with his ex-wife were in clear contravention of the PAVO which was in force at the relevant times.

Did the Applicant meet the safe storage requirements?

1. The COPS Event relevant to the attendance of Police at the Applicant's home to seize his firearms on 3 July 2019 records that the Applicant said he had "misplaced the key" to his gun safe and that it had to be opened using an angle grinder. The Applicant said he did not know how long the key had been missing; he had last accessed the safe about 6-7, or perhaps 8-9 months, beforehand. He said in his evidence that the key had been in a "little safe" which had been kept in the bedroom. It also contained his passport and other documents. He said he thought his wife took the little safe when she left a couple of months earlier. He did not know if she had kept the keys to the gun safe or thrown them out, as she had thrown out a lot of his belongings.
2. It was submitted on the Applicant's behalf that, in terms of the safe keeping of the firearms, the only way to access the safe was by use of an angle grinder and several other tools, and hence they were secured. However, accepting that his ex-wife took the little safe containing the gun safe key, as was contended, the submission overlooks that, the Applicant's ex-wife, who presumably was unlicensed, had ongoing access to the safe, at least for a period of time. At best, the Applicant did not know the location of the key.
3. The Police contended that the safe which housed the Applicant's firearms was not bolted to the ground. In his affidavit, the Applicant asserted that the safe was in fact bolted to the ground. He said in his evidence that the attending Police did not even look at the bolts because they did not want to get "grinding smoke" on them, and just wanted to collect the guns. Photographs annexed to the Applicant's affidavit appear to show bolt holes. He said the safe had always been securely bolted: "2 in the ground, 2 down the bottom and 2 up top". The Applicant invited attention to his having had a safe storage inspection 3-5 years earlier and said that no issue with his safe had been identified at that time. It was improbable, he said, that, the safe having been previously properly secured, that he had subsequently removed the bolts. While the details of the photographs were difficult to make out, and attending Police were not called to give their account of this or the earlier inspection, I agree with the Applicant's contention that it was improbable that the safe became unsecured in the intervening period since the previous inspection.

Does the Applicant have a "genuine reason" for possessing or using a firearm?: s 12 of the Act

1. When the Applicant lodged an application for a firearms licence on 28 October 2010, he identified ''sport target shooting" and "recreational hunting/vermin control" as the genuine reasons for seeking a licence. That licence was issued up to 2 February 2016. In his application dated 18 November 2015 the Applicant again identified those genuine reasons for a firearms licence.
2. The Applicant's evidence included correspondence from the Sporting Shooters Association of Australia (NSW) Inc. (SSAA), an approved shooting club, to the effect that he was a member of the SSAA between 9 August 2012 and 31 August 2019. Also, annexed to his affidavit was evidence that demonstrates he currently is a member of the SSAA.
3. The correspondence from the SSAA is to the effect that the Applicant was not a member of that club at the time of the decision under review. Accordingly, at that time, the requirements stipulated in the Table in s 12 under "sport target shooting" and under "recreational hunting/vermin control" - that the Applicant be a member of an approved club - were not satisfied. In the case of the requirements stipulated for ''recreational hunting/vermin control", it was also the case that alternative requirements were also not satisfied. As a consequence, the Applicant did not have a "genuine reason" for the licence and that, of itself, provided a basis for the Respondent to revoke it: s 24(2)(a) read together with s 12(1). However, the correspondence from the SSAA indicates that the Applicant is now a member, having re-joined the club on 22 April 2021. Consequently, and applying s 63 of the CAT Act, he now satisfies the requirements stipulated in the Table in s 12 under sport target shooting and under recreational hunting/vermin control.

Did the Applicant meet the participation requirements for "sport target shooting" and "recreational hunting/vermin control"?

1. Under s 19 of the Act, the Commissioner has broad powers to issue a licence subject to conditions, and such other conditions as may be prescribed by the Regulation. A number of provisions in the Regulation concern requirements of licence holders as a result of the genuine reasons relied upon to justify obtaining a firearms licence. For the genuine reason of sport/target shooting, cl 29(a) provides that such a licence is subject to the condition that the licensee must comply with any applicable requirements of Part 10 in relation to participation requirements for club members. Similarly, for the genuine reason of recreational hunting/vermin control, cl 31 provides that such a licence is subject to the condition that the licensee must comply with any applicable requirements of Part 10.
2. The participation requirements under Part 10 of the Regulation relevantly include that the holder of a licence issued for the genuine reason of sport/target shooting must be a member of at least one approved shooting club and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club: cl 107. Similarly, cl 108(1) provides that the holder of a licence issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club must be a member of at least one approved hunting club and must, during each compliance period for such a club of which the person is a member, participate in no less than 2 hunting club events.
3. The correspondence from the Artemis Gun Club stated that the Applicant was a member between 19 October 2010 and 19 October 2011 but never attended that club. Also, the SSAA correspondence indicates that while the Applicant holds a financial membership, the correspondence does not record that he participated in any shooting activities or club events, other than one hunting activity in 2013/14.
4. The Respondent submitted that the Applicant did not satisfy the requirements of cls 107 and 108 of the Regulation.
5. The Applicant said in his evidence that he had not done much shooting because he had been very busy at work which requires him to travel round the State, often for extended periods. The Applicant said he shoots for sport and he also helps mates shoot foxes on their land. He said that in relation to guns, and fishing for that matter, he "keeps to the rules".
6. There is no evidence that the Applicant satisfied the participation requirements in cls 107 and 108 of the Regulation prior to the revocation of the licence, and in that regard did not "keep to the rules". The Applicant has failed to comply with the requirements of cls 107 and 108 of the Regulation: s 24(2)(b)(ii) of the Act. Further, his failure to comply is a breach the conditions of the licence set out in cls 29(a) and 31 of the Regulation: s 23(2)(b)(iii) of the Act.
7. In Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 Hennessey DP said that if the breaches of the Act or Regulation are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety. In Bevan v Commissioner of Police [2004] NSWADT 1, the Tribunal stated at [26]: ... Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety (see s3(1)(a) of the Act). (Tribunal's emphasis)
8. The Applicant's contravention in the present matter was not merely a "technical" breach; the Act sets out clear obligations and the Applicant has failed to comply with those obligations over a period of several years. His failure to comply cannot be disregarded as an oversight, nor excused by his distraction of a heavy workload that might take him away from home; a firearms licence attracts responsibilities that are ongoing, irrespective of one's personal circumstances. I accept that the Applicant's work may have made his ability to meet the participation requirements problematic. The public interest requires, however, that licensees be aware of, and comply with, the legislative requirements for holding a licence: Vella v Commissioner of Police, New South Wales Police Service [2003] NSWADT 91 at [4], and Cook v Commissioner of Police [2003] NSWADT 30 at [34]. Responsibilities of licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25]. See also Todorovski v Commissioner of Police [2019] NSWCATAD 192 at [130].
9. In Garder v Commissioner of Police, NSW Police Force [2018] NSWCATAD 199, Ludlow SM exercised the Tribunal's discretion in the applicant's favour notwithstanding the applicant had breached participation requirements. In that matter though, the applicant had only held a firearms licence for eight months before it was suspended, did not own a firearm, and had failed to comply for a short period. Here, the Applicant who has held a firearms licence for some years, owned several firearms, and the period of his non-compliance extended over a number of years.

Applicant's driving record

1. The material before me also indicated that Applicant has an extensive traffic record. Most recently, in March 2021, his licence was suspended for 3 months because of the number of demerit points. Most of his offences relate to speeding. The Applicant admitted in his evidence that he had broken the law: "parking tickets" while trying to do his job. This clearly was a significant understatement of his offending.
2. The Applicant's very poor history of traffic offences shows a disregard for another regulatory scheme which aims, like the firearms legislation, at ensuring public safety: see Tannous v Commissioner of Police [2011] NSWADT 116); Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, SM Scahill at [81]. A disregard for a regulatory scheme aimed at ensuring public safety is a very relevant consideration in determining whether or it is contrary to the public interest for the Applicant to hold a firearms licence. Given the extensive history of traffic infringements I cannot be satisfied that similar conduct will not be repeated, given his long-standing disregard for the traffic regulatory scheme. My findings above indicate that he has a similar disregard for aspects of the firearms regulatory scheme.

The "public interest"

1. The Respondent submitted that it is not in the public interest for the Applicant to hold a firearms licence: s 24(2)(d) of the Act and cl 20 of the Regulation.
2. The expression "public interest" is not defined in the Act. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. The public interest "is an inherently broad concept" which permits reference "to a wide range of factors" in making the decision: Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25].
3. The "public interest" factor allows a consideration of issues going beyond the character of an applicant to be taken into account; public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
4. The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
5. The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
6. The discretion to make a decision in the public interest is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23]. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
7. The Applicant re-applied for a firearms licence for the genuine reasons of sport/target shooting and recreational hunting/vermin control. His interest in shooting is as a sport and he also helps mates shoot foxes on their land. Private interests are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. They include 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 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.

Conclusion

1. As noted above, "public interest" is an inherently broad concept. The Tribunal is required to look at the Applicant's conduct as a whole. The principles and objectives of the Act confirm that firearms possession and use of the firearms is a privilege that is conditional on the overriding need to ensure public safety by imposing strict controls on the possession and use of firearms. The public's right to safety outweighs an individual's privilege to possess and use a firearm.
2. I have found that the Applicant failed to monitor the whereabouts of the key to his gun safe. I have found he was in breach of conditions of his licence and that he also failed to meet the participation requirements. He has a very poor driving record, which he sought to downplay.
3. As to the domestic violence allegations, in Grenfell v Commissioner of Police [2021] NSWCATAD 124 (Grenfell), the Tribunal recently stated at [31]: 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.
4. The Tribunal accepted that, in the context of the scheme under the Act, domestic violence incidents are a serious cause for concern, even where the alleged perpetrator is not convicted of an offence or where, as here, there is no misuse of a firearm; see [103]. In Grenfell, the Tribunal concluded, at [104] that it was not in the public interest for the Applicant to hold a firearms licence in circumstances where the Applicant was subject to a provisional AVO that was, as here, later withdrawn. It is immaterial that those matters did not give rise to any proven charges: see Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCAT 31 at [62]-[64].
5. In addition to the concerns discussed at [58] above, having regard to the multiple domestic violence issues, including the fact that the Applicant was subject to a PAVO, I cannot be satisfied that there is virtually no risk to public safety in the Applicant having possession of a firearm, and find that it is not in the public interest for the Applicant to hold the licence: s 24(2)(d) of the Act and cl 20 of the Regulation.
6. As noted above, the Applicant's firearms licence expired before this matter came on for hearing. Neither the Respondent nor the Tribunal on review has power to reissue an expired licence: Sawires v Commissioner of Police [2010] NSWADTAP 68 at [12]. The practical effect of this decision is that the Applicant, if he seeks a firearms licence, will need to make a fresh application. I acknowledge that the Applicant will be required to disclose that he had previously had his firearms licence revoked. In any future application by the Applicant for a firearms licence it would be appropriate that the Respondent take this decision into account.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 06 January 2022