Salameh v Commissioner of Police, NSW Police Force [2023] NSWCATAD 148 | Case summary

NCAT Administrative and Equal Opportunity|2023-06-06

The Applicant's conduct

In December 2011, when the Applicant was aged 15, Police responded to a call which alleged that the Applicant (and others) had been throwing eggs at vehicles. In December 2012, Police observed the Applicant and an associate run from a Police car; although they were searched due to suspicion that they were concealing stolen or unlawfully obtained items, nothing was found on either person. In September 2013, Police pulled over the Applicant after observing him driving erratically; nothing of interest was located when searched. In October 2013, Police responded to a call to attend a school after the Applicant, with three associates, triggered the alarm at the school.
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In February 2015, Police pulled over the Applicant after he was observed turning quickly out of a roundabout and appeared to accelerate harshly to avoid police detection. The Applicant failed to explain his evasive driving. Police suspected the Applicant may be in possession of a prohibited drug, so conducted a search, but found nothing.
On 3 February 2020, Police attended the Applicant's family home to execute a search warrant in relation to allegations of drink spiking by Shadi. Numerous items were seized at the home, including substantial amounts of cash and white powder. An extendable baton was found in the Applicant's bedroom. The Applicant admitted to owning the baton, and he was charged with the offence of 'possess or use a prohibited weapon without permit-T2'. The charge was later dismissed in Burwood Local Court pursuant to s 10 of Crimes (Sentencing Procedure) Act 1999. In his affidavit the Applicant wrote that he had owned the baton since he was 16 and it had never been used.

Applicant's domestic circumstances: s 11(4)(a) of the Act

Shadi, is well known to Police and has been the subject of multiple criminal charges that have resulted in custodial sentences. In addition, Shadi is also subject to a FPO.
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The Applicant's solicitor said that Shadi is presently in gaol, but did not specify the current charge. She said though he will likely remain in gaol for some time.
The Applicant's evidence was that Shadi's extensive criminal history "doesn't affect [him]" and is "nothing to do with [him]" and it was "on him [Shadi]". In his affidavit, the Applicant said that he has "remained distinctly separate from the actions of Shadi" and "in no capacity [has] any connection with, or support, the actions of Shadi".
In cross examination the Applicant's attention was invited to the warrant executed at the family home in 2020 when substantial amounts of cash and white powder were located at the premises and the extendable baton was located in the Applicant's room. He said there was "nothing for [him] to be involved in". As to the alleged drink spiking by Shadi at a brothel, the Applicant said he knew nothing about that and did not attend those premises that evening. In any event, he said, Shadi said to have been found not guilty in relation to some of the charges in relation to that matter.
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The Applicant had lived at the family home in Kingsgrove until at least April 2020 (according to his letter to the Magistrate in respect of the extendable baton charge), and his evidence was that only his mother and sister now live there. He moved to premises in Riverwood, and since May 2023, has lived in Moorebank with his wife and child.
Since May 2019 Shadi has provided both the address of the family home and an address in Arncliffe as his home address. Shadi's address is listed as the family home on his current NSW driver licence (issued 26 August 2020). Currently, Shadi is in prison, where he may remain for some time. The Respondent submitted that, even if Shadi did not reside at the family home on his release from prison, he would be likely to continue to have ongoing contact with his mother and therefore would attend the family home on a frequent basis. The Applicant has ongoing contact with his mother and described himself in his affidavit as having carried the emotional burden of his father's death and he supported his family during that distressing time. In his evidence he said he continues to visit his mother and sister at the family home.
The Applicant said that he and another of his brothers own a smash repair business and that, when Shadi was released from prison in 2018 they had set him up at the business location, but in a different role. Unfortunately, the arrangement "didn't work out", and he said that when Shadi is ultimately released from gaol after his present incarceration, they have no intention of having him in the business.
The Applicant said that Shadi has been in and out of gaol since 2018 and, at first, he had "wanted to be there for him"; he would take his mother to visit him and they hoped Shadi would show signs of change but ultimately that did not occur. The Applicant's evidence was that he had last seen Shadi in prison about 4 months ago when he had taken his mother to visit him. Prior to that he saw him about a year ago. The Applicant said he works Monday to Friday and on the weekend is taken up with his wife and child, so does not visit Shadi, other than to take his mother. During COVID they were unable to visit him at all because Shadi was unvaccinated, and therefore, not permitted visitors. As to whether he sought to contact Shadi while he was in gaol, the Applicant said he had not, but conceded that Shadi might phone him about once a month. He said he hopes Shadi learns from his mistakes, but that would require a "360 turnaround". If that turnaround did not occur, the Applicant said he wanted nothing to do with him. He said they are "not as close as they once were".
The Respondent submitted that even if I were to accept that the Applicant does not have any current close connection with Shadi, I should find there is every likelihood that the Applicant may in the future rekindle a close relationship with him.
In LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41]- [43], the Tribunal held that the Commissioner, and hence the Tribunal on review, must objectively be satisfied, from established facts, of the matters set out in s 11(4)(a) of the Act, that is, whether the Applicant's domestic circumstances are such that he may not personally exercise continuous and responsible control over his firearms. See also Meggit v Commissioner of Police [2022] NSWCATAD 353, at [27].
In Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 at [31] (Tolley) the Tribunal observed that given the breadth of the discretion and the overriding object of public safety, there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence. Consequently, the conduct of Shadi is a relevant factor in determining whether the Applicant may personally exercise continuous and responsible control over firearms: see also Emery v Commissioner of Police [2022] NSWCATAD 122.
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The Tribunal has held that even when there is no evidence that an applicant has personally engaged in criminal activities, he or she could come under pressure to make guns or ammunition available to criminals or criminal organisations if they remain associated with such persons or organisations: Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194, at [90]; see also El Saadi v Commissioner of Police (No 2) [2021] NSWCATAD 336. In Mekhitarian v Commissioner of Police [2021] NSWCATAD 309, I was satisfied that the Applicant had cut off all association with his errant son. I accept that, in this matter, until at least 2020 the Applicant continued in a familial relationship with Shadi, including helping him with employment when he was not in gaol. His uncontested evidence, which I accept, was that, in more recent times his association has been only two visits to Shadi in gaol in the last two years, and monthly phone calls.
In Tolley, the applicant's son had been charged with supplying commercial quantities of drugs and other offences and was in custody awaiting sentence. The Police concern in that matter was that the son may put pressure on his father to access his firearms. Similarly, and more recently, in Ryan v Commissioner of Police [2021] NSWCATAD 23 (Ryan) the applicant's partner of 8 years had been the subject of a number of Police reports concerning drugs, break and enter, aggravated robbery, assault, consorting, stalk/intimidation, and at the time the applicant's firearms licence was revoked, was subject to a Community Correction Order. There I found that there was reasonable cause to believe that the applicant's partner may take advantage of their domestic circumstances and therefore the applicant may not personally exercise continuous and responsible control over her firearm. These matters involved a criminal history of the applicants' son/partner, and in both Tolley and Ryan the concerns had at their core the pressure that might be applied to the applicant in relation to access to firearms. Here, though, there was no evidence whatsoever of any coercive conduct by Shadi towards the Applicant. Furthermore, Shadi is now in gaol.
The Applicant's solicitor referred to three cases, which she submitted, were relevant to my consideration: Con Plessas v Commissioner of Police, NSW Police Force [2004] NSWADT 36, Whitfield v Commissioner of Police, NSW Police Force [2022] NSWCATAD 407 (Whitfield) and Prochilo v Commissioner of Police, NSW Police Force [2022] NSWCATAD 142. None of those cases related to domestic circumstances and each related solely on the public interest test, and I considered them in that context.
For the above reasons, including my observations in relation to the confidential material, I am not satisfied that the Applicant's domestic circumstances are such that he may not personally exercise continuous and responsible control over firearms.

Public interest

The Respondent contended that it is not in the public interest for the Applicant to hold a firearms licence: s 11(7) of the Act.
The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23]. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the "public interest" is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual.
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 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.
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]. 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].
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].
I note that the Applicant provided two character references, prepared in connection with the charge in relation to the extendable baton. Both referees speak positively about him. No doubt, these were taken into account by the Magistrate in dismissing the charge under a 10 of the Crimes (Sentencing Procedure) Act 1999, and I also have taken them into account.
The Applicant said that he seeks a firearms licence because he would like to join other family members going to ranges to shoot and on weekends going to farms to shoot. Although he has applied for a licence to undertake target shooting, he proposes, if the licence is granted, to apply for a Category B licence for the genuine purpose of recreational hunting/vermin control.
Private interests such as a wish to ultimately be able to go hunting however, 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. As the Tribunal has observed many times, these matters 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 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: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].
I accept that in the period the Applicant previously held a firearms licence (between July 2019 and February 2020) he had not come to attention in relation to failure to comply with his firearms statutory obligations, nor was there evidence of any misuse of his firearms. This was, however, a very short period of time, and his failure to come to attention during that period is very weak evidence in his favour.
I have disregarded the Applicant's activities between 2011 and 2015 as youthful exuberance, particularly, as notwithstanding coming to Police attention for reasons unknown, he was not the subject of any charges.
The Applicant has multiple traffic infringements. It is well established that repeated breaches of traffic laws and regulations are a relevant consideration in determining whether a firearm licence should be granted: Tannous v Commissioner of Police [2011] NSWADT 116 at [32] and [37]; see also Himo v Commissioner of Police [2021] NSWCATAD 321. The Applicant's conduct in relation to traffic offences may indicate an inability to observe, or an intentional disregard for, rules which are imposed for public safety and indicate a lack of regard for his own safety and that of the public. Of particular concern is his preparedness to drive after having used cannabis, and his conduct when tested. I do not consider his explanation about his distress at his father's medical condition excuses his offending. Given his history of infringements in the relatively limited time he has held a licence, and, in particular, his ill-advised decision to drive after having used cannabis, and his conduct when stopped by Police, I cannot be satisfied that he may not disregard aspects of another regulatory scheme, namely in relation to firearms.
In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be taken into account. It is clear that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant's interest in holding a firearms licence.
Where an applicant associates with a person or persons who have significant criminal histories, that association may create a danger to public safety. In both Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43 and Dalziell v Commissioner of Police, NSW Police Force [2018] NSWCATAD 79 it was held that where an applicant voluntarily associated with persons having significant criminal histories, that association may create a danger to public safety. That person may therefore be not fit, in the public interest, to be in possession of a firearm.
In Whitfield, to which the Applicant's solicitor referred, the Applicant no longer associated with criminals: one of the persons of concern was dead and the applicant had not seen another person of concern for 5-10 years.
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While the Applicant claims to have little do with Shadi and proposes, unless Shadi changes his ways, to also have little to do with him on his release from prison, it remains that he they have an ongoing association, including, presently, monthly phone calls, and also through their mother. I consider that an association with Shadi is likely to continue when Shadi is eventually released from prison and also, despite what was characterised by his solicitor as a "denunciation" of Shadi, that it is unlikely that the Applicant will have "nothing to do with" him if, as may be likely, Shadi continues to offend.
The information, including that provided in the confidential material, is sufficient, in my view, to establish a real and appreciable risk to public safety. Consequently, I find that, at this time, it is not in the public interest for the Applicant to hold a category A firearms licence.

DECISION

The decision under review is 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: 14 June 2023

Tribunal's approach

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 a 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, as I explained to the Applicant, 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].

Salameh v Commissioner of Police, NSW Police Force

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