Oshana v Commissioner of Police

NCAT Administrative and Equal Opportunity|2022-02-18

What this case is about

The Commissioner of Police must not grant a firearms licence to a person if the Commissioner cannot be satisfied the person is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. The Commissioner must also not issue the firearms licence if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information, that the person is a risk to public safety and issuing the licence would be contrary to the public interest.
The Commissioner of Police refused Mr Oshana's application for a firearms licence because of an incident in 2019 which led a conviction on 11 June 2010 of recklessly wounding another person and also an interaction with Police on 19 July 2021 which resulted in Mr Oshana being issued with penalty notice for not wearing a face covering.
After considering all the evidence and material filed in these proceedings and the submissions made by the parties' legal representatives, I decided that the correct and preferable decision was to affirm the decision to refuse to grant Mr Oshana a firearms licence.

Background

Mr Oshana made an application for renewal of a Category AB firearms licence on 17 January 2019. The Commissioner of Police ('Commissioner') refused that application on 7 February 2019 on the basis that Mr Oshana had been convicted of an offence prescribed by the Regulations. This was because Mr Oshana had been convicted in the NSW Local Court on 11 June 2020 of the offence of "Recklessly wound any other person - T1". The penalty imposed was a three year good behaviour bond. The Commissioner of Police decided that the licence must not be issued because that conviction and penalty brought Mr Oshana within the category of persons who must be refused a licence as the application was made within 10 years of that conviction: refer to subsection 11(5)(b) of the Firearms Act 1996 and clause 5(d)(i) of the Firearms Regulation 2017.

Relevant legislation

The Firearms Act 1996 (the 'Act') and Firearms Regulation 2017 together contain the elements of the regulatory scheme for the issuing of firearms licences and permits and the safe storage of firearms in NSW, amongst other things.
The underlying principles of the Firearms Act 1996 are set out in subsection 3(1) of the Act and include: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety - (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms …
The objects of the Act in subsection 3(2) of the Act include: (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms
Subsection 11(3)(a) provides that the Commissioner must not issue a licence unless the Commissioner is satisfied that the applicant for the licence is a "fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace".
In addition, subsection 11(5A) states: "(5(A) A licence must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that - (a) the person is a risk to public safety, and (b) the issuing of the licence would be contrary to the public interest."

Administrative review jurisdiction

The Tribunal has jurisdiction to review a decision of the Commissioner to refuse to grant a firearms licence: refer to subsection 75(1)(a) of the Act. That jurisdiction is exercised under the Administrative Decisions Review Act 1997.
Section 63 of the Administrative Decisions Review Act 1997 explains that in determining an application for review, the Tribunal must decide what the correct and preferable decision is. In doing so, the Tribunal is to consider the material before it, including relevant factual material and any "applicable written or unwritten law", meaning legislation or common law. In carrying out the review, the Tribunal can consider not only the material that was before the Commissioner but also any relevant material before the Tribunal at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

Dispensing with the requirement for an internal review

Ordinarily, an applicant must request an internal review of the decision to refuse the licence. Another suitably qualified officer within the Firearms Registry who was not substantially involved in the making of the original decision then conducts a further review: refer to subsections 53(3) and 55(3) of the Administrative Decisions Review Act 1997.
In this case, there was a lengthy delay from the date on which Mr Oshana made his application for a firearms licence and when he received the notice of refusal, a period of approximately one year.
Mr Kable, representing Mr Oshana, stated in correspondence to the Tribunal Registry that one year was an "unduly excessive" period and should be deemed to be a refusal decision. Mr Kable ensured that the lawyer with carriage of the matter within NSW Police was copied into this email correspondence to the Tribunal registry.
On 23 November 2021 the Tribunal, differently constituted, made an Order that the application for review is to proceed notwithstanding that there was no internal review conducted. This Order was made under subsection 55(4) of Administrative Decisions Review Act 1997.

Oral evidence of Mr Oshana

Mr Oshana gave oral evidence at the hearing about a number of topics.

The 2009 incident

Mr Kable asked Mr Oshana about the incident in 2009 which ultimately led to a charge of reckless wounding.
Mr Oshana's evidence was that he discovered that someone had attempted to break into his vehicle. He attempted to restrain the person as part of a citizen's arrest and in the ensuing scuffle the person was injured. He described the incident as a "great mistake".
Mr Regener, the legal representative for the Commissioner, sought to tease out a number of inconsistencies between Mr Oshana's account in the written statement he prepared for these proceedings as compared with the account he gave to Police in his ERISP interview on 18 November 2009. These included: 1. Whether Mr Oshana was woken by his wife who heard a noise outside (page 1 of the written statement) or they both got up after the car alarm went off (answer to Q18 in the ERISP) 2. Whether Mr Oshana saw the man he thought was breaking into his vehicle standing at the passenger side door (written statement page 1) or driver's side door (answer to Q18 in the ERISP)
In oral evidence, Mr Oshana's gave explanations about these apparent inconsistencies. He said that his wife woke him as she was waking. He said that the driver's door was not visible and so it was a mistake to say that the man was at the driver's side door. It should be noted that Mr Oshana does appear to correct himself in the ERISP interview a few lines later when he says that the man "was directly at my driver's, passenger side door…".
Under further cross-examination, Mr Oshana agreed that he lied to Police in his first ERISP interview the day before, that is, on 17 November 2009. In that interview he claimed that he knew nothing of the incident that occurred around 4:30am and rather, that he had slept through until the next morning and had not left his unit (for example the answers to Q83, Q154 and Q176 in the interview transcript).
When Mr Kable further addressed this issue in re-examination, Mr Oshana said he returned to speak to police the following day and submitted to a second police interview because of guilt and remorse. He ultimately pled guilty when the matter went to court.
Under cross-examination, Mr Oshana denied that he had "tackled" the man to the ground but agreed that he had restrained or attempted to restrain the man. Mr Oshana agreed that he is a trained martial artist. When asked why he did not call Police, Mr Oshana explained that he did not have time and he had the man restrained. He added that he was in his pyjamas and bare foot and without a mobile phone. He agreed that he did not take the man to a police station.
Under questioning from the Tribunal, Mr Oshana agreed that he did throw the victim to the ground and that it was forceful.
Under cross-examination Mr Oshana said he did not know the victim was injured, saying he did not see any injuries and that the scene as not well lit. He denied knowing that the victim was bleeding.
Mr Oshana said he thought that the man's bag contained implements to break into vehicles or weapons that could be used against him. There was a struggle and the bag was left on the ground. He did not look inside the bag.
Mr Regener asked Mr Oshana why he thought it was safe to leave the bag on the ground in public if it contained weapons. Mr Oshana said he wanted to distance the bag from himself for his own safety.
Mr Regener took Mr Oshana to page 15 of the ERISP transcript from the 18 November 2009 police interview, where he is recorded as saying that he stopped physically restraining the victim "after throwing him to the ground" as he realised that the man was bleeding from his head. Mr Regener then put to Mr Oshana that he had lied in his earlier oral evidence before the Tribunal when he said that he did not know that the man was injured. Mr Oshana responded by saying said it was a "misunderstanding" and that the event happened in 2009, thirteen years ago.

The 2021 incident

Mr Oshana gave evidence that on 19 July 2021 he was in a supermarket with his son. He was not wearing his mask because he was exempt from having to do so under the relevant public health order. Police asked for evidence that Mr Oshana qualified for the exemption and Mr Oshana did not believe he needed to provide written proof under the public health order. He was issued with an infringement notice and the matter is presently under appeal.
Under questioning, Mr Oshana accepted that the public health order at the time required the wearing of a face covering and that he was not wearing one. He explained that he has a problem with confinement. He said he had consulted GP once 10 years ago, but that he did not think the GP made any diagnosis.
Mr Regener suggested to Mr Oshana that he had no illness or condition which would prevent him from wearing a mask. Mr Oshana said he did not agree. He said he was advised by the GP that there was nothing that the GP could do to address his problems with wearing personal protective equipment (PPE) and entering areas of confinement. The GP gave no medical assistance or any medical certificate, the only solution was to avoid those situations. He said that over the years working in the plumbing industry he found working in confined spaces with PPE on, such as roof voids and under houses more and more difficult.
Mr Regener asked Mr Oshana if he had consulted a doctor about the requirement to wear a mask to obtain documents to assist him, if he was questioned about not wearing a mask. Mr Oshana responded that under the public health order at the time this was not required. When pressed again about taking no steps to consult a medical practitioner Mr Oshana said that he did so, ten years prior.
It is noted that Mr Oshana completed a statutory declaration on 27 October 2021 explaining that he was unable to wear a mask because he finds it hard to breathe and hyperventilates if feeling confined and this affected his ability to continue working as a plumber.
Under questioning from the Tribunal, Mr Oshana said that he had read the guidelines on the Service NSW website about exemptions and that it was clearly not part of the order that a person was required to provide Police with evidence. He acknowledged that this became a mandatory requirement since the incident.

Incorrect answers on the firearms licence applications

Mr Kable asked Mr Oshana why he had entered an incorrect answer on his 2016 firearms licence application. Mr Oshana answered "no" to the following question on the form: Have you in NSW or elsewhere; … e) Within the last 10 years, been convicted of an offence involving firearms of weapons, prohibited drugs/plants, fraud/dishonesty/stealing, prescribed restricted substances, terrorism, violence, robbery, organised criminal groups and recruitment, or an offence of a sexual nature?
Mr Oshana said he answered "no" to the question on the form because he believed the reckless wounding conviction 2005 and so outside the 10 year period when he filled in the form 2016.
In cross-examination, Mr Regener asked Mr Oshana whether he took any steps to verify the accuracy of his answer, other than relying on his memory. Mr Oshana said he took no such steps. He said both he and his wife believed it had happened in "about 2005". When pressed further, Mr Oshana said it did not occur to him he might be able to obtain the court records showing when the conviction occurred. He agreed with Mr Regener that he did not contact the Police or his lawyer to try to find out the correct date. He also explained he did not have access to any paperwork from the criminal proceedings because at that time he had bought his first home and was living elsewhere and did not have access to any of his documents. He could not recall whether he might have relevant correspondence from his solicitor from that time on his email account and that he did not check his email for any such records.
Mr Regener asked Mr Oshana why again on his 2019 licence renewal application he again answered "no" to a similar question. Mr Oshana said that at that time he also did not know the correct date of the conviction. He said he continued to believe that it occurred in 2005.
Under questioning from the Tribunal, Mr Oshana said he believed that he did not receive any paperwork in relation to his criminal proceedings.

Driving record

Addressing his driving record, Mr Oshana said that he believed had no driving offences since 2019. He said that his driver's licence was temporarily suspended in 2011 and 2014 because of not paying a fine on time.

Other material relied on by the parties

Mr Oshana filed with the Tribunal the two relevant public hearing orders. The Public Health (COVID-19 Greater Sydney) Order (No 2) 2021 was Gazetted on 23 June 2021. Clause 15(3)(b) of that Order provides that the requirement to wear face covering in certain indoor settings does not apply if: "(b) a person with a physical or mental health illness or condition, or disability, that makes wearing a fitted face covering unsuitable including, for example, a skin condition, an intellectual disability, autism or trauma."
A change to that Order was made by Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Amendment (No 13) Order 2021, which was Gazetted on 22 July 2021. That amendment required a person to carry evidence that the person has an illness, condition or disability that makes wearing a mask unsuitable if they were relying on the exemption
The Commissioner filed evidence of Mr Oshana's driving record. This included some 14 offences over the period 2001 to 2019, some 18 or so years.
The Respondent also filed a copy of the NSW Police Force computerised records (COPS Event No. E 81105430) concerning the 2021 incident. That entry records Mr Oshana as "rude" towards Police and that he challenged the powers of Police to ask for proof that he qualified for the exemption from wearing a mask. Mr Oshana is said to have yelled out to Police "You morons, go back to police school and educate yourself". Police perceived his tone towards them to be rude, verbally aggressive and argumentative.
Mr Oshana tendered three character references. One was from Mrs Dalia Oshana, his wife, which was unsigned and dated 23 December 2021. Mrs Oshana stated that in relation to the 2009 incident that "My husband has shown remorse for his actions in which he decided to take matters into his own hands." She also says he is admired by his family and community for "his calm manner and dedication to helping others" and that his has become "a better person".
The character reference from Mr Oshana's brother, Mr Elliot Oshana, referred to Mr Oshana as a "responsible and dedicated husband and father" and a leading member of the community. He said that Mr Oshana had shown remorse and regret for his actions in 2009.
A further reference from Mr Oshana's friend, Raymen Youkhana, attested to Mr Oshana's good moral character and respect and kindness towards others and said that he was "deeply affected" by his conviction in 2010.

Applicant's submissions

Mr Kable referred to the case of Romanos v Commissioner of Police, New South Wales Police Force 2019 NSWCATAD 272. The facts of that case are that Mr Romanos was charged with an offence of failure to keep a firearm safely. He also had some previous convictions for criminal damage, attempted theft, affray, possess prohibited weapon, possess explosive substance and possessing or using cannabis. All these charges were from at least 15 years prior to the hearing. At [47] of that decision the Tribunal stated: "Licence holders are not required to have led entirely exemplary lives, and on all the evidence I find that there is no realistic prospect that [Mr Romanos] would present any risk to public safety or the peace if his licence were reissued."
Mr Kable argued that whilst his client had not led an exemplary life he had held a firearms licence between 2017 and 2019 without incident. He also referred to the facts of Ward v Commissioner of Police, New South Wales Police Service 2000 NSWADT 28 ('Ward') where the Tribunal set aside the decision to revoke Mr Ward's firearms licence on the basis he was a fit and proper person to hold the licence, despite Mr Ward having assaulted his partner.
Mr Kable also drew attention to the decision of the Tribunal in Lee v Commissioner of Police [2021] NSWCATAD 169 ('Lee'). In that case Mr Lee was involved in an incident which resulted in a charge of assault. No conviction was recorded and the magistrate accepted that his actions were truly out of character (at [11]).
Mr Kable also referred to the decision in Petricevic v Commissioner of Police, NSW Police Force [2022] NSWCATAD 24 ('Petricevic'). In that case the Tribunal set aside the decision to refuse the firearms licence in circumstances where Mr Petricevic was involved in a number of incidents involving aggression towards Police some of which involved drugs or alcohol. He also had a lengthy driving record.
Mr Kable submitted that nothing in the applicable public health order at the time of the 2021 incident required that the person seeking to be covered by the exemption to obtain evidence about the fact the person qualifies for the exemption and carry it with them.
Mr Kable addressed the issue of the incorrect answers on the two firearms licence applications by saying Mr Oshana believed that the 10 years had expired. He relied on the decision of Pendrick v Commissioner of Police, NSW Police Force (No 2) [2022] NSWCATAD 27. In Pendrick the Tribunal considered a series of cases in which false information was provided on firearms licence applications forms, concluding at [70] that where a statement is false or misleading, the question of whether the applicant intended to mislead was relevant. In that case the Tribunal accepted that Mr Pendrick may have forgotten about the fact he was the subject of an Apprehended Violence Order ('AVO') or may have thought the question asked whether it was over 10 years since the AVO commenced, rather than since the AVO ended. Mr Kable submitted that the facts of Mr Oshana's case were similar in that the relevant conviction occurred seven years prior to the 2016 firearms licence application and on making the subsequent renewal application on 17 January 2019 he was still of the view he had answered correctly.
When it came to the 16 October 2020 firearms licence application, Mr Kable pointed out that Mr Oshana correctly disclosed on his application form that he had previously had his licence application refused.
Mr Kable also pointed to the character references from Mr Oshana's wife and brother both of whom attest to Mr Oshana's remorse and his involvement in the community, for example coaching his son's soccer team.
Mr Kable drew the attention of the Tribunal to Mr Oshana's answers to Questions 99 and 100 of the NSW Police ERISP transcript from the police interview on 18 November 2009 (at page 15 of the interview transcript) as a demonstration of Mr Oshana's remorse and regret. This exchange is referred to below under the hearing 'Consideration'. Mr Kable argued that the incident in 2009 was a long time ago and that Mr Oshana had demonstrated remorse and regret for his actions.
Mr Kable said that Mr Oshana's driving record on its own would not be sufficient to warrant refusal of a firearms licence. He said that the most recent driving offence had been in 2019 and that there had only been three such offences in the last eight years.
Mr Kable pointed out that the Tribunal is to make an assessment as at the hearing and that his client had changed his behaviour, integrated into the community, married and had three children and was involved in community activities.
Mr Kable said that Mr Oshana has "owned up" and admitted to lying in a police interview and that he went back to the police the next day to rectify his account. He also pointed out that Mr Oshana pleaded guilty to the charge arising from the 2009 incident and accepted the consequences.
In relation to the incident involving not wearing a mask, Mr Kable said his client was justified, although this did not excuse his attitude towards Police. Again, he submitted that this conduct was not sufficient to warrant the refusal of a firearms licence.
Mr Kable closed his submissions by restating that his client's demonstration of regret meant that he could now be entrusted with firearms.

Respondent's submissions

Mr Regener argued both orally and in written submissions that the Tribunal cannot be satisfied that Mr Oshana is a fit and proper person and can be trusted to have possession of firearms without danger to public safety. He cited the following passage in Ward v Commissioner of Police, New South Wales Police Service 2000 NSWADT 28 at [28]: "The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
In written submissions Mr Regener referred to the further cases of AML v Commissioner of Police, NSW Police Force 2013 NSWADT 5 at [7] and Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64]-[66]]. Together these cases explain that the statutory test is the relevant test, without any judicial gloss. It is for the Tribunal to assess all the circumstances, including the Applicant's attitudes, prior character and conduct and to determine whether there a risk to public safety.
Mr Regener said that the 2009 incident involved Mr Oshana taking justice into his own hands and attempting to make a citizen's arrest. He said that there was evidence the man was not trying to steal his car but just going to work. He said this showed the Applicant's state of mind and his reasoning and judgement, that is, that he thought it was appropriate to grab and throw the man to the ground, causing him an injury and to take his bag, dump it and flee. He also said that Mr Oshana was cavalier with public safety if he believed the bag he left in public contained items that might harm him, such as weapons. He did not retain possession of the bag and take it to a safe place and contact the authorities. He said that Mr Oshana had given oral evidence that he believed his actions were appropriate.
Mr Regener emphasised that Mr Oshana had lied to Police a number of times in his initial police interview and that this lack of honesty and candour meant that the Tribunal should treat any of his explanations with caution unless there is objective evidence to verify those things.
Mr Regener argued that Mr Oshana was also cavalier about his legal obligations and responsibilities. He pointed to Mr Oshana's driver's licence being suspended and that he did not follow through and pay his outstanding fines. He also highlighted the fact that Mr Oshana claimed to be exempt from the requirement to wear a mask but never diagnosed with any physical or mental health illness or condition or disability. He had merely seen his GP some ten years prior but had not received any diagnosis or treatment and had taken no steps since the start of the COVID pandemic to verify that he was entitled to an exemption.
Mr Regener said that the Respondent accepts that Mr Oshana had difficulties wearing masks. However, his evidence was that he could wear a mask for a few minutes at a time and Mr Regener submitted that it was more a question of inconvenience and preference. In written submissions, Mr Regener said that Mr Oshana's attitude towards self-policing and deciding which law might apply to him was still evident today from the 2021 incident about the public health order.
Concerning the incorrect answers on the firearms licence forms in 2016 and 2019, Mr Regener said that he was not asking the Tribunal to find that Mr Oshana deliberately lied on the forms, but rather he took no steps to find the correct date of his conviction, other than discussing the answer with his wife. Mr Regener submitted that this was careless and reckless. He submitted that Mr Oshana could have called his solicitor, the Local Court registry or the Police to find out the correct date. He submitted that Mr Oshana's answer that he did not know he could access this information is not credible and that he merely did not try to find out the information.
Mr Regener submitted that Mr Oshana had not been forthright with the Tribunal when stating in oral evidence that he did not know that the man was injured. This conflicted with what he said in the second ERISP interview (quoted above at [32] of this decision). Mr Regener also referred to Mr Oshana's written statement, prepared for these proceedings, in which he said: "Later on I had been advised by the NSW police that his [sic] use of force to place him on the ground resulted in an unintentional cut to the back of his head where he had landed."
Mr Regener said that his repeated questioning of Mr Oshana on this point gave him an opportunity to think and be certain as to whether he knew of the injuries to the victim at the time of the incident. Mr Regener submitted that it was not believable that Mr Oshana did not know of any injuries.
Mr Regener agreed that of itself, Mr Oshana's traffic record was not sufficient to warrant refusing the firearms licence. Rather, it was the totality of the circumstances that showed the grant of such a licence would give rise to a risk to public safety. Whilst the Applicant was not required to live an exemplary life, in Mr Regener's submission Mr Oshana demonstrated a lack of significant regard for the public health order, he was not forthcoming and truthful, and reckless in regard to the leaving a backpack which he believed may contain weapons and fleeing and failing to complete the citizen's arrest or report the matter to Police.
Mr Regener said that even though the public health order fine had been appealed, the Tribunal is entitled to consider whether he might have committed such an offence as Mr Oshana did not have an illness, condition or disability that would entitle him to an exemption. He said Mr Oshana decided unilaterally that he fell within the exemption, but did nothing to seek proof. Added to that was Mr Oshana's breaches of the traffic laws, which like firearms regulation have at their heart the protection of the public.
Mr Regener said that Mr Oshana was not a fit and proper person and cannot be trusted to have possession of firearms without danger to public safety and also it was not in the public interest that he be granted a licence.

Reply to respondent's submissions

Mr Kable said there were a number of assumptions being made in the Respondent's submissions. His client may have been cavalier in 2009 but that cannot be assumed today.
Mr Kable submitted that assumptions cannot be made about why it was Mr Oshana did not pay his traffic fines on time. There was no evidence as to why that happened.
Mr Kable referred to the evidence that his client struggles with face coverings, and he had a problem with that 10 years prior. He said that there was no request ever made for proof of that until after the penalty notice was issued.
Mr Kable again emphasised that his client was convinced that the date he recalled for the reckless wounding conviction was correct. It was clear in his own mind and so he had no reason to seek further evidence. Mr Kable submitted this was an honest and reasonable mistake.

Consideration and findings

There are a number of factual aspects to this case that form part of all the relevant circumstances that I have to consider in assessing whether, amongst other things, the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety.
Some aspects of Mr Oshana's evidence led me to believe that he lacked a degree of insight into the seriousness of his previous conduct. He described the 2009 incident as "a great mistake". Under questioning, at no time did he suggest that he should not have pursued and attempted to effect what was in effect a violent attempted citizen's arrest. Mr Oshana appeared to minimise the seriousness of his conduct, denying that he had tackled the victim and rather describing his actions as "restraining" the man and despite his later acknowledging that he had thrown the man to the ground with force.
I am satisfied that Mr Oshana initially lied to Police in 2009 by suggesting that he slept through the night and had no knowledge whatsoever about the 2009 incident.
There were also some aspects of the evidence that called into question the Mr Oshana's truthfulness in giving evidence before this Tribunal. Mr Oshana denied in evidence before this Tribunal that he knew that the victim was injured. This is plainly contrary to what he told Police in the ERISP interview of 18 November 2009 where he admitted the following (at page 12 of the ERISP transcript): I pushed the man with some force down on the ground. As a result of doing so, his head then hit the floor. After his head hit the floor, I then noticed that, some blood coming from the back of his head. I then immediately ceased to physically restrain this man as I see, coming out of his head, I then stopped and said, you know, I think this is enough, he's bleeding.
In his written statement prepared for these proceedings, Mr Oshana appears to again deny he knew about the injuries, stating (on page one of that statement): Later on I had been advised by the NSW police that his [sic] use of force to place him on the ground resulted in an unintentional cut to the back of his head where he had landed.
The issue was squarely put to Mr Oshana by Mr Regener in cross-examination. Mr Regener took Mr Oshana to page 15 of the ERISP transcript from the 18 November 2009 police interview, where Mr Oshana is recorded as saying that he stopped physically restraining the victim "after throwing him to the ground" as he realised that the man was bleeding from his head. Mr Regener then put to Mr Oshana that he had lied in his earlier oral evidence before the Tribunal when he said that he did not know that the man was injured. Mr Oshana responded by saying said it was a "misunderstanding" and that the event occurred 2009, thirteen years ago.
I have concluded that it is more than that. I find that Mr Oshana was untruthful in his evidence to the Tribunal when he said that he did not know that the man was injured and did not see any injuries or know that the victim was bleeding.
It also strikes me that the main professions of Mr Oshana's remorse and contrition appear to come from his legal representative in submissions and Mr Oshana's family members and friend who provided character references for the purpose of these proceedings, rather than from Mr Oshana himself.
Mr Oshana does make the following comments in his written statement prepared for these proceedings: Reflecting on the incident that took place I have realised that the manner in which I conducted myself that night was wrong and inexcusable, I have realised that matters of public safety do not allow me to take the law into my own hands as these are matters for our law enforcement authorities. Since the incident I have changed my lifestyle to mitigate the chance of having place [sic] myself in a similar scenario. With an understanding of remorse for my actions that night I can confidently say that I have grown to be a responsible husband and father of three children and valuable member of my local community.
Despite this, I did not get a sense from hearing Mr Oshana's oral evidence that he fully accepted that he should not have acted in the way he did. To some degree he minimised the seriousness of his actions (refer to [81] above).
Mr Kable directed the Tribunal to answers to Questions 99 and 100 in the NSW Police interview on 18 November 2009 as evidence of Mr Oshana's remorse and regret for his actions. That portion of the interview transcript reads, starting at Questions 98 (page 14 of the interview transcript): "Q98 Did you give any consideration to what could happen when you, when you pushed him down? A Yes, definitely. Q99 Yeah. A The, that is the whole reason why I, I ceased in physically restraining this man after throwing him to the ground, then seeing, realising that blood was coming from him, I kind of felt remorse --- Q100 Mmm. A --- and regret as to why, why did, you know, I mean, I regretted, but I don't regret throwing the man to the ground to restrain him, but I kind of felt guilty as to seeing blood come from his head. I kind of thought, That's enough."
I would not characterise that exchange as an expression of remorse or regret except that Mr Oshana had regrets when he discovered that the man was bleeding from the head.
I also found limited support for Mr Oshana's case in the authorities he relied on in submissions. It is notable that in Ward the conviction was for common assault and did not involve infliction of actual bodily harm: refer to [22] of Ward. In that case the Applicant had attended counselling and shown genuine remorse: at [30].
In Lee, the charge was downgraded to assault (not occasioning actual bodily harm) (refer to [11]). Mr Lee expressed regret and undertook an anger management course (see [11]).
In Petricevic the Tribunal came to the view that Mr Petricevic had "moved on from his prior behaviour" which included where the conduct often appeared to be in the context of drug and alcohol use and included negative interactions with Police, travelling without a ticket and various traffic offences. The Tribunal found that Mr Petricevic was now a responsible citizen and had developed a level of maturity and had changed his lifestyle and had not repeated the conduct (at [67],[68] and [72]).
There are some other aspects that I considered in determining whether Mr Oshana is a fit and proper person. I find that when confronted by Police about his not wearing a mask in 2021, Mr Oshana displayed a degree of argumentativeness with Police. I also had regard to Mr Oshana's lengthy driving record, but note that he has had few fines in the last eight years. I considered Mr Oshana's incorrect answers on the firearms application forms and concluded that I am not satisfied that Mr Oshana deliberately misled or deliberately provided incorrect information about his conviction on the 2016 and 2019 firearms licence application and renewal forms. It might be said that Mr Oshana perhaps should have checked the date of the 2010 conviction, given that he was out by four years and signed the declaration at the end of the forms that the information was true and correct.
Of themselves, these additional factors would not lead the Tribunal to conclude that Mr Oshana is not a fit and proper person. Rather, it is the combination of these factors as well as the concerns stated above about Mr Oshana's insight into his actions in 2009 and his candour both to Police but also to the Tribunal in his evidence that led me to conclude that Mr Oshana is not a fit and proper person who can be trusted to have possession of firearms.

Conclusion and Orders

For the reasons set out above, the correct and preferable decision is that Mr Oshana's application for a Category AB firearms licence made on 16 October 2020 is refused on the basis that I cannot be 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.
The decision of the Commissioner on 28 October 2021 to refuse the application is therefore affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2022

At a glance

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Judgment (17 paragraphs)

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Cases Cited (5)