The Applicant's character and personal circumstances
The Applicant gave evidence, as referred to above at [55] and [56], of his community service, charity, personal and sporting achievements, and reasons for wanting a firearms licence. The Respondent did not test the Applicant's evidence about his community service, charity, or personal achievements, or his reasons for wanting a firearms licence. I accept that evidence and give it reasonable weight.
The Applicant provided the Tribunal with copies of 3 references provided for use in his criminal proceedings, each dated 23 March 2022 and addressed to the presiding magistrate at Campbelltown Local Court. One was from his father, one was from the CEO of the company at which the Applicant was employed or otherwise professionally engaged, and one was from a former colleague at the same company. Each referee professed shock or surprise at the criminal domestic violence offences with which he was charged. None of these 3 references made any comments about the Applicant's fitness or propriety in the context of holding a firearms licence. Consistent with the authorities in Loye v Director General, Department of Transport [2000] NSWADT 145 at [42] and [44], Sawires v Commissioner of Police [2010] NSWADT 4 at [49] - [53] and Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 at [40] I give these references limited weight.
The Applicant's father additionally provided a letter dated 9 April 2023, which I have referred to above at [60] in the context of my consideration of the Applicant's evidence about domestic disputes with his parents between 1998 and 2001. That letter also contained some comments about the Applicant's character and suitability to hold a firearms licence:
Shooting is a sport that gave he and I something to bond over and it put us on a level playing field. Bishoy's work obligations and his responsibilities with his 5 children means that his spare time is limited and while we used to enjoy bonding at the shooting range, we have not been able to do so in almost 2 years.
Bishoy got his firearms licence over 15 years ago in 2007 and he has had his licence reviewed and renewed every 5 years since. I have complete faith in my son's ability to handle firearms safely and responsibly, and I have no doubt that he is a fit and proper person to hold one.
I wish for this statement to provide you with an understanding of the experiences my family has had during our assimilation into this great country, and I hope that by better understanding these experiences, you are able to reinstate Bishoy's firearms licence.
Whilst the Applicant's father's 23 March 2022 reference included acknowledgement of the Applicant's 2021 domestic violence charges, there was no such acknowledgement in the 9 April 2023 letter. I infer that this was because the charges were withdrawn on 24 March 2022. The 9 April 2023 letter also made no reference to the Applicant's extensive traffic infringements or offences. It is unsurprising that the Applicant's father and shooting partner would have "complete faith" in his son's ability to handle firearms safely and responsibly, but this gives the Tribunal little confidence in the Applicant's regard for public safety considerations outside his personal interest. I give the Applicant's father's reference limited weight accordingly.
[2]
Conclusion
I have found that the Applicant did engage in the conduct described in the 2021 domestic violence charges Facts Sheet, despite those charges being withdrawn. I give that considerable weight in determining whether the Applicant is a fit and proper person for the purpose of holding a firearms licence. It is also significant in the context of determining whether it would be in the public interest for the Applicant to hold a firearms licence.
I also give significant weight to the Applicant's long history of traffic infringements and offences, and his failure to acknowledge or recognise that his non-compliance with traffic laws detracts from his fitness and propriety.
I have given the Applicant's community service, charity, personal and sporting achievements, and reasons for wanting a firearms licence reasonable weight. I also give reasonable weight to the Applicant's history of holding a firearms licence and compliance with the Act and passing inspections and reviews without previous safety concerns. I have given some limited weight to the character references provided in favour of the Applicant, for the reasons discussed above.
The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, past conduct of the Applicant is a significant guide in assessing likely future conduct: Ford v Commissioner of Police [2022] NSWCATAD 87 at [59].
On balance, I agree with the Respondent's submission that collectively, the Applicant's conduct illustrates behaviour that is inconsistent with the privilege of a firearms licence. Where there has been, or is, a 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. The Applicant's involvement in domestic violence, together with the Applicant's poor driving record, means that the Tribunal is not satisfied that there is "virtually no risk" to public safety if the Applicant has a firearms licence, and it is not in the public interest or the Applicant to hold a firearms licence.
The correct and preferable decision is for the Respondent's decision to revoke the Applicant's firearms licence to be affirmed.
[3]
Orders
1. The respondent's decision to revoke the Applicant's firearms licence is affirmed.
[4]
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: 22 December 2023
wires v Commissioner of Police [2010] NSWADT 4
Tannous v Commissioner of Police [2011] NSWADT 116
Vella v Commissioner of Police [2003] NSWADT 91
Ward v Commissioner of Police [2000] NSWADT 28
Texts Cited: None
Category: Principal judgment
Parties: Bishoy Saad (Applicant)
Commissioner of Police, NSW Police Force (Respondent)
Representation: Solicitors:
Applicant (self-represented)
McCullough Robertson (Respondent)
File Number(s): 2023/00011580
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 Applicant's ex-wife's name prohibited from publication.
Paragraph 33 not for publication pursuant to ss 289M and 289P of the Criminal Procedure Act 1986 and s 64(1)(c) of the Civil and Administrative Tribunal Act 2013.
Legal principles
The Tribunal has jurisdiction to review the Respondent's decision pursuant to section 75(1)(c) of the Act and section 30 of the CAT Act.
Subsection 63(1) of the ADR Act provides that in determining the application, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it. The Tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal: see Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.
The underlying principles of the Act are, relevantly:
1. to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and
2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.
Section 24 of the Act provides for the revocation of licences in a range of circumstances, including:
(2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or
(d) for any other reason prescribed by the regulations.
Clause 20 of the Regulation prescribes that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
Section 24(2)(d) of the Act and Clause 20 of the Regulation work together to provide authority for the revocation of a licence where the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
Section 24(2)(a) of the Act provides that a licence may be revoked "for any reason for which the licensee would be required to be refused a licence of the same kind". Section 11 of the Firearms Act relevantly provides:
…
(3) A licence must not be issued unless -
…
(a) 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
…
(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
2021 Domestic violence charges
In relation to the 2021 domestic violence charges, the Applicant relies on the 8 November 2021 statement of his ex-wife, which retracted her allegations against him. His submissions and responses in cross examination largely repeated those retractions and explanations she gave for her earlier statement. The Applicant submitted that his ex-wife was scared that she was going to lose their kids if she moved out and so went to the extreme measure of making the domestic violence allegations to avoid this. The Applicant submitted that the Respondent was "attempting to go behind the findings of the Court to suggest to this Tribunal that I have committed domestic violence crimes", and denied that he had done so. He submitted that he was in regular contact with his ex-wife due to their ongoing parenting arrangements and "if there had been any voracity to the allegations raised against me (which I deny), then there would have presumably have been an issue either prior to the 2021 allegations or any allegations since that time".
The Respondent submitted that although the Applicant's (then) wife retracted the statement she provided to police on 5 July 2021 and the 2021 Charges were not proven, the Tribunal should be satisfied that her DVEC statement made on 5 July 2021 is a truthful account of events on 4 and 29 June 2021, and more credible that her subsequent retraction on 8 November 2021 for the following reasons:
1. the photograph of her injured elbow taken on 5 July 2021, is consistent with her being dragged along carpet and not consistent with her merely slipping over when Mr Saad attempted to pick her up;
2. in her DVEC statement, she presents as authentic and genuinely fearful for her safety, which is consistent with Constable Lambourne's impression of her on 5 July 2021;
3. the Applicant's engagement in domestic violence on 4 and 29 June 2021 is more consistent with his aggressive behaviour towards the RFS and his parents than the assertion in her retractions statement on 8 November 2021 that the Applicant "has never been violent or threatening to me in our entire 12 years of marriage"; and
4. it is much more likely than not that she retracted her DVEC statement because she feared the repercussions for her and the Applicant amongst their local church community, particularly their reputation.
I don't agree that the evidence before me supports the findings submitted at [64(1)], [64(3)] or [64(4)] above. I do, however, agree that the evidence supports the finding submitted at [64(2)] above and give the Applicant's ex-wife's retraction statement of 8 November 2021 no weight in circumstances where:
1. it post-dates the conduct said to have occurred by some months, in contrast with the statement provided to police on 5 July 2021;
2. the Applicant and his ex-wife were clearly involved in the negotiation and implementation of parenting and financial orders in the intervening period between when she first reported the allegations to Police and when she retracted them, as demonstrated by the making of consent orders by the Family Court on 18 October 2021;
3. it is inconsistent in some parts with admissions already made by the Applicant; and
4. she did not make herself available to the Local Court hearing the criminal charges, for the purpose of her evidence and inconsistent statements being tested.
History of Traffic offences
With respect to the Applicant's traffic record, I accept the Respondent's submission that the Applicant has a very poor driving record, which indicates an inability to appropriately and seriously consider and observe legal regulations which are imposed for public safety reasons, and further indicates a lack of responsibility for public safety: see Tannous v Commissioner of Police [2011] NSWADT 116 (Tannous) at [32].
The Applicant submitted that the allegations regarding mobile phone usage should be given limited weight in circumstances where the charges date to the period 2007 to 2008 and the contraventions for "driving while on a hand-held device laws only passed though parliament on 1st of July 2008". He also submitted that his traffic record had not previously prevented him from obtaining or renewing his firearms licence.
The Respondent submitted that the evidence demonstrated that the Applicant continued to act with disregard for traffic laws. In particular, since 2020, the Applicant had been caught speeding five times as well as caught using his phone while driving. In the circumstances, the Tribunal should not be satisfied that the Applicant's attitude towards traffic laws that are aimed at ensuring public safety have changed significantly, or at all. Rather, the Applicant continues to demonstrate a disregard for such laws which are aimed at ensuring public safety.
As referred to above at [50] to [54], the Applicant seemed unable in cross examination to accept that his long history of traffic infringements and offences could impact his fitness and propriety to hold a firearms licence. He sought to diminish the volume and severity of the infringements and regulatory contraventions by characterising them as "an accident" or attributing them to being human. He would not accept that his driving record had been consistently poor since 2009.
A single low level traffic infringement or even a few low level traffic infringements over the course of 23 years holding a driving licence could possibly, in different circumstances, be so characterised as an accident or merely attributable to human error. So could some infringements which occurred in the first few years of holding a licence, if there was an obvious absence of continued infringements once appropriate additional education or training was undertaken. However, the applicant's infringements were multiple, were repeated over the course of his licence, continued after undertaking a driving course intended to rectify his "youthful mistakes", and continued despite being charged and convicted of criminal offences for driving while suspended or disqualified on three occasions in 2009 and 2010. His latest suspension, although not implemented, was in May 2021. He continued receiving infringements for speeding in 2022. In my view his traffic and driving record demonstrates a long and sustained history of traffic infringements analogous to that considered, for example, in O'Brien v Commissioner of Police [2022] NSWCATAD 259.
The expression "public interest" is not defined in the Act. It is well established that, in considering the meaning of that term, the Tribunal will have regard to the context in which it appears in the first instance: CIC Insurance Limited v Bankstown Football Club (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 (McHugh, Gummow, Kirby and Hayne JJ). A discussion of relevant case law with respect to public interest was set out by the Tribunal in the case of Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at paragraph [69]-[74]. The concept of "public interest" was discussed by the Administrative Decisions Tribunal (NSW) (the ADT) in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 (Toleafoa) as follows:
The "public interest" is an inherently broad concept giving an appellant [the Respondent] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operated in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The circumstances in Toleafoa related to the revocation of a security licence and in Ward v Commissioner of Police [2000] NSWADT 28 (Ward), the ADT confirmed that these comments apply equally to the Act.
In Cusumano v Commissioner of Police [2001] NSWADT 50, the ADT stated:
There is no guidance in the legislation in relation to how these directions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.
In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act, namely, to confirm firearm possession and use as a privilege conditional upon the overriding need to ensure public safety.
More generally, the public interest encompasses broader considerations beyond public safety. It is an inherently broad concept and is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, it was stated at 681:
The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
In Director of Public Prosecutions v Smith (1991) 1 VR 63 the Court observed:
The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to before the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel stated:
The "public interest" allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.
In an often-quoted passage, Hennessy DP in Ward 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. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130].
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, noting in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that:
"The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests".
Other cases have pointed out that 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: see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
In Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Senior Member Higgins dealt with an application in relation to firearms licensing under the Act. At paragraph [22] she stated that the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety.
"22 In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace."
The principal issue in determining public safety is therefore whether or not there is a risk to the safety of the public if the Applicant retains the relevant licence: Vella v Commissioner of Police [2003] NSWADT 91.
In determining whether an individual holding a licence is contrary to the public interest, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in the individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed. The fact that charges have not been established to the criminal standard against an applicant is irrelevant: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] to [64]. it is well established that it is an applicant's conduct, not their conviction that is of concern to the Tribunal: Bazouni commissioner of Police, New South Wales Police Service [2002] NSWADT 100; Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70 at [301].
In Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, Senior Member Scahill noted at [76] that "the Applicant's traffic history shows a disregard for public safety and his own safety as he repeated traffic offences". The Senior Member determined at [81] that:
The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety.
Where there has been or is the possibility of a threat to public safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Aubrey v Commissioner of Police [2005] NSWADT 266 at [21]. The licensing regime is also concerned with "making decisions that are consistent with a need to reduce any risks to a minimum": Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36].
The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 at [117].
The Respondent submitted that the Tribunal should find that the Applicant did engage in the underlying domestic violence that was the subject of the 2021 domestic violence charges, relying on the evidence of Constable Lambourne about his experience with the Applicant's ex-wife and domestic violence matters. The Respondent referred to the decision of Pemberton v Commissioner of Police, NSW Police Force [2022] NSWCATAD 288 where, in the context of a refusal of a firearms licence, the Tribunal said (at [51]) that:
…allegations of domestic violence frequently do not result in convictions, and AVOs are often withdrawn because the alleged victims do not wish to proceed. Further, victims of domestic violence do not always report incidents or pursue proceedings because of fear of repercussions."
I agree with the Respondent that domestic violence incidents are a serious cause for concern. Although the 2021 domestic violence charges and associated ADVO were subsequently withdrawn, as discussed at [26] above, in determining whether it is in the public interest for the Applicant to hold a firearms licence, the Tribunal is concerned with whether or not the underlying conduct occurred, irrespective of whether the Applicant was convicted or was even charged for that conduct.
I am satisfied on the evidence before me that the conduct occurred as alleged in the police Facts Sheet for the charges. The Facts Sheet is supported by the evidence of the Applicant's ex-wife in her interview and the statement she gave to police on 5 July 2021, and the evidence of Constable Lambourne. As discussed above, I give her retraction statement of 8 November 2021 no weight.
In Himo v Commissioner of Police [2021] NSWCATAD 321 at [102], the Tribunal stated that:
[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.
Traffic laws and regulations are one such scheme. The Applicant's traffic record is directly relevant to the question of public interest under the firearms legislation. As Judicial Member Hunstman in the Administrative Decisions Tribunal in Tannous at [38] stated:
'It is not in the public interest for a person to be licensed to possess a firearm, where the person does not have proper regard to laws and regulatory schemes which seek to ensure public safety.'