Stanescu v Commissioner of Police, NSW Police Force

Stanescu v Commissioner of Police, NSW Police Force - [2015] NSWCATOD 6 - NSWCATOD 2014 case summary — Zoe

[6]

Procedure of hearing

The 4 matters were heard together on 23rd of July 2014; 20th October 2014; 10th November 2014 and 23rd February 2015.
On 10th November 2014, on application of the Respondent, the Tribunal ordered that the hearing on 10th November 2014 be conducted in private - in the absence of the Applicants pursuant to section 49(2) of the Civil and Administrative Tribunal Act 2013 (NSW) CATA. The Respondent had submitted that it was desirable to do so as it wished to put confidential evidence to the Tribunal.
On 10th November 2014 the Tribunal also made the following orders pursuant to section 64(1) of CATA: 1. section 64(1) (b) prohibiting the publication or broadcast of any report of proceedings in the Tribunal on 10th November 2014; and 2. section 64(1) (c) an order prohibiting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal on 10th November 2014; and 3. section 64(1) (d) an order prohibiting the disclosure to the Applicants to the proceedings of evidence given before the Tribunal, and of the contents of documents lodged with the Tribunal and received in evidence by the Tribunal, in relation to the proceedings on 10th November 2014.
The Tribunal notes that at the end of the hearing on 10th November 2014, the Tribunal returned to the Respondent the documents tendered. Copies were not retained on the Tribunal's file.
The Tribunal does not rely on the evidence given, or the contents of the documents tendered on 10th November 2014 in reaching its decision.
The Tribunal notes that neither Mr Stanescu nor Mrs Brandusoiu sought internal review of the Respondent's decision to revoke their firearms licences - but applied directly to the Tribunal for review of the decisions. The Tribunal has determined under section 55(b) of the Administrative Decisions Review Act 1997 to review the Respondent's decision to revoke Mr Stanescu's and Mrs Brandusoiu's firearms licence in order to protect their interests.

[10]

Evidence of Detective Senior Constable Bradley Atkins

DSC Atkins had been in charge of the execution of a search warrant at the Brandusoiu's home on 30th April 2013. At that time, DSC Atkins was attached to the Gang Squad.
He was investigating an alleged matter of drug supply by the Brandusoiu's younger son Anthony Brandusoiu. He said that at the time of the Tribunal's hearing, Anthony Brandusoiu was in custody having pleaded guilty to the charges and was awaiting sentencing.
The Tribunal was subsequently informed that Anthony Brandusoiu was sentenced to 2 years and 10 months and would be in custody until at least January or Feb 2016.
DSC Atkins said the first priority when they were executing the search warrant was to locate and secure the firearms registered to Mrs Brandusoiu. The video showed Mrs Brandusoiu retrieving the keys for the firearms storage unit from the side of the bed on which Mr Brandusoiu slept and where he kept his mobile telephone. Mr Brandusoiu was not at that time licensed to possess firearms. DSC Atkins also said that Mrs Brandusoiu had difficulty in opening the bedside cabinet in which the keys were contained. When she was asked how many guns there were in the safe and what kind of firearms they were, she seemed uncertain. She said to DSC Atkins that she was feeling quite shaken up and could not respond at that time. Mrs Brandusoiu was then asked which firearm a particular bolt belonged to. She identified the relevant firearm. DSC Atkins alleged that he saw on the internal wall in the house a photograph of Mr Brandusoiu with his two sons, standing next to a dead boar.
This photo was not produced to the Tribunal.
DSC Atkins told the Tribunal that when the main bedroom shared by Mr and Mrs Brandusoiu was searched, three batons, prohibited weapons, were found underneath Mrs Brandusoiu's side of the bed. A samurai sword and a smaller dagger were found between Mr Brandusoiu's side of the bed and a bedside table. The samurai sword and the dagger were not prohibited weapons. DSC Atkins said that when Mrs Brandusoiu was asked why she had the three batons on her side of the bed, she did not provide a response. Mr Brandusoiu said he had the sword and dagger underneath his side of the bed because he liked them and he liked to keep them near his bed.
DSC Atkins also said that while they were searching the premises they found a memorial card for the late Zelko Mitrovic. He had been a member of an outlawed motor cycle gang (omg), the Hells Angels and he was killed at work. Mr Brandusoiu had said "he was a nice person and a friend."
DSC Atkins said that the concern about Mr and Mrs Brandusoiu and their son having firearms was that their son Anthony was an associate of Arman Prcanovic, a Sergeant at Arms of an omg, the Comancheros. They had both pleaded guilty in relation to a drug supply matter. His concern was that legal associates of omg gang members are able to provide assistance to the activities of omg members with firearms or ammunition.
DSC Atkins said that Mrs Brandusoiu's weapons had been stored safely. DSC Atkins said that the Brandusoiu family had been entirely cooperative with the execution of the search warrant and there had been no problem.
DSC Atkins was asked by Mr Brandusoiu why, when the police attended the home, DSC Atkins had asked where Adrian was, when the search warrant was being executed in relation to the activities of Anthony. DSC Atkins indicated the he could not recall, but may have been confusing Adrian with Anthony.

[13]

Applicant's submissions

Mr Stanescu submitted that the report of DSC Passak dated 18th of December 2013 could not be relied upon in a number of respects.
There was no evidence that Mr Stanescu had ever breached the conditions of his firearms licence.
Similarly there was no evidence that his mother Angela Brandusoiu had breached firearms conditions. Mrs Brandusoiu had complied with storage requirements and no breach proceedings had been taken against her when the firearms were seized. It was in the public interest for Mrs Brandusoiu to hold a firearms licence. In these circumstances there was insufficient evidence to show that Mr Stanescu may not exercise control over firearms because of his domestic circumstances.
There was no evidence to support the contention that Mrs Brandusoiu had allowed her husband and sons to use her firearms. The undated photograph of Mr Brandusoiu with his sons and a dead boar did not allow such an inference to be drawn.
No technical evidence had been produced to support DSC Passak's assertion that the length of Mrs Brandusoiu's fingernails would prevent her from handling a firearm.
Mr Stanescu's previous firearms licence history showed that he had a firearms licence issued in August 2001 and again in May 2009. There had been revocations in 2003 and May 2006 due to expired Firearms Accreditation Certificates. The licence was subsequently reinstated in May 2005. He had held firearms licences without concern.
The domestic circumstances were such that there was a positive family history of dealing with firearms appropriately.
DSC Passak had referred to intelligence reports which linked members of the family with criminal activity. These reports had not been produced and could not be tested by or relied upon against Mr Stanescu.
Other than the fact that Mr Stanescu is the brother of Anthony Brandusoiu - there was no evidentiary link between Anthony Brandusoiu, his activities or his links to omgs and his brother.
The Respondent's documents included Mr Stanescu's criminal history. The most recent had been a mid-range PCA over 10 years ago. Prior to that, there was a matter in April 2002 with no conviction recorded. These matters did not justify revocation of his firearms licence.
Mr Stanescu conceded that his driving record was not admirable.
Mr Stanescu submitted that his criminal or driving records were not relevant as his firearms licence had not been revoked on the grounds that he was not fit and proper to hold it.
Mr Stanescu submitted that the Tribunal should take note of the letter received by his father from the Local Lands Services Central Tablelands, undated, but referring to a forthcoming meeting in June 2014. The meeting was to deal with wild dog control. This demonstrated Mr Stanescu's legitimate need for firearms for hunting and vermin control.
Mr Stanescu submitted that if the Tribunal considered a condition should be placed upon his storage of firearms to ensure that they were not stored in Anthony Brandusoiu's presence, that he should be given an opportunity to make submissions on this.

[14]

Respondent's submissions - Adrian Stanescu

The Respondent made common submissions in relation to both Mrs Brandusoiu and Mr Stanescu. The decision to revoke the licences of both Applicants occurred after the Commissioner's delegate considered DSC Passak's report. This report led the Commissioner to consider that the Commissioner could not be satisfied that the Applicants could exercise continuous and responsible control over firearms due to their domestic circumstances and that it would not be in the public interest that the Applicants continue to hold a firearms licence authorising the possession and use firearms.
The Respondent referred to the evidence of DSC Atkins. He had observed that the firearms safe keys had been stored in the bedside drawer of Tiberiu Brandusoiu who was not authorised to access firearms. Mr Brandusoiu had referred to Mr Zelko Mitrovic, a senior member of the Hells Angels with history of violence who was murdered as result of omg activity, as a friend and, in his opinion, a nice person. DSC Atkins' evidence was that associates of the omgs facilitate the provision of firearms and ammunition to the gangs. It was not in the public interest for firearms to be possessed by members or associates of outlaw motorcycle gangs.
The Respondent referred to the evidence and report of DSC Passak. DSC Passak referred to the investigation into the drug supply matter involving Mr Arman Prcanovic, a Sergeant at Arms of the Comancheros omg and Anthony Brandusoiu. They were heavily involved in the supply of prohibited drugs at a commercial level. Anthony Brandusoiu had pleaded guilty and had been sentenced to 2 years and 10 months in jail. She also stated that Anthony Brandusoiu had links to the Commander of the Comancheros and links to the Rebels omg. She referred to Mr Brandusoiu's association with Steve Timotic a member of the Hells Angels.
The Respondent referred to DSC Passak's concern about Mrs Brandusoiu's apparent lack of knowledge of firearms and her opinion that Mrs Brandusoiu would be unable to use firearms with her finely manicured fingernails. She had also been unable to identify any of the firearms in her safe even though she had held a licence since 2011. She concluded that Mrs Brandusoiu rarely handles or has any involvement with the firearms.
DSC Passak considered that the firearms should not be retained at the home address as the domestic circumstances of the Applicants were such that there was a risk that the firearms might fall into the wrong hands because of the Brandusoius' association with both the Comancheros, the Rebels and the Hells Angels omgs. Mr Brandusoiu's own association with omgs meant that there was a risk that he would voluntarily or under force provide the firearms and ammunition to members of omgs.
Mrs Brandusoiu's firearms had previously been owned by Mr Brandusoiu. She had only obtained her licence after Mr Brandusoiu had lost his firearms licence.
Mr Brandusoiu was the dominant personality in the household. This was supported by the fact that he conducted the proceedings for both Mrs Brandusoiu and Mr Stanescu and had filled in the forms for them.
Further the Respondent submitted that as neither Applicant had chosen to give evidence they had been unable to rebut inferences arising from the evidence presented by the Respondent.
The Respondent referred to the ADT Appeals Panel's decision in matter of Police v Toleafoa [1999] NSWADTAP 9 at [25] in relation to the concept of public interest and the broad discretion that the concept provided to a decisionmaker to approve or refuse an application. On the basis of the evidence about the Applicants, it was contrary to the public interest for Mr Stanescu's licence to be reinstated because of the risk of firearms and ammunition falling into the possession of unlicensed persons or members of omgs. It could not be said that there was virtually no risk to the safety of the public were Mr Stanescu Brandusoiu to regain his firearms licence.

[15]

Findings of fact in relation to Mr Adrian Stanescu

The Tribunal must be satisfied of the case before it on the balance of probabilities, the standard set out under the Evidence Act 1995 section 140 as follows: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
The Tribunal is satisfied that Mr Stanescu's domestic circumstances are that he resides at [address] together with his father Tiberiu Brandusoiu and his mother Angela Brandusoiu. His brother Anthony Brandusoiu has also resided at this address - but he is presently in custody.
Mr Stanescu has held firearms licences in the past and did so between 2009 and the revocation of his licence in 2014.
Mr Stanescu's mother, Mrs Brandusoiu has stored firearms for which she is licensed at her home without evidence that she has breached storage requirements.
Mr Stanescu has not been alleged to have direct association with members of omgs.
Despite the Respondent's submissions, the Tribunal makes no finding that Mrs Brandusoiu has allowed her sons or husband to use her firearms. There was insufficient evidence before the Tribunal to draw a conclusion that this had occurred.
Although the keys to the firearms storage unit were in a drawer on Mr Brandusoiu's side of the bed, there is insufficient evidence for the Tribunal to draw the conclusion that Mr Brandusoiu effectively controlled the keys and access to the firearms safe or the firearms.
A Samurai sword and small dagger were found next to Mr Brandusoiu's side of the bed at the time of execution of the search warrant on the Brandusoiu's home in April 2013. At the same time batons were found next to Mrs Brandusoiu's side of the bed. Mrs Brandusoiu is reported not to have explained why the batons were there. Mr Brandusoiu is reported to have said he kept the sword and dagger there because he liked them. In the absence of further explanation, the Tribunal draws the inference that the items were on either side of the bed for protection. The Tribunal also draws the inference that Mr and Mrs Brandusoiu apprehended some risk to their safety.
The Tribunal understands that the purpose of Mr Stanescu's firearms licensing is recreational hunting and vermin control. The Tribunal was presented with a letter from Central Tablelands Local Land Services addressed to Mr Tiberiu Brandusoiu concerning a meeting to be held in June 2014 dealing with control of wild dogs in the Mudgee area where the Brandusoiu family has a farm. The Tribunal accepts that this letter provides evidence of wild dog activity near the family farm at Mudgee.

[16]

Relevant Legislation in relation to application of Adrian Stanescu, Firearms Act 1996

The relevant sections of the Firearms Act permitting the Respondent to revoke a firearms licence, are sections 24 and 11 of the Act.
The relevant aspects of Section 24 provide: 24. Revocation of licence (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) ……. (c) …….. (d) for any other reason prescribed by the regulations.
Section 11 sets out the reasons for which the licensee would be required to be refused a licence at first instance. The part relevant to Mr Stanescu is: 11(4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of: (a) the Applicant's way of living or domestic circumstances, or….
Section 24 (d) provides that a licence may be revoked for any other reason prescribed by the regulations. The Respondent has relied on clause 19 of the Firearms Regulation 2006 which provides 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.
The Respondent's reasons for revoking Mr Stanescu's firearms licence are that: 1. the Commissioner has reasonable cause to believe that he may not personally exercise continuous and responsible control over firearms because of his way of living or domestic circumstances; and 2. the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence
The Tribunal notes the description of "public interest" as embracing standards acknowledged to be 'for the good order of society and the wellbeing of its members' - see Director of Public Prosecutions v Smith (1991) 1 VR 63. Further the purpose of a 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 consideration. See Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at [p 681]
The term "reasonable cause to believe" in this context was considered by the Tribunal in the matter of LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at paragraphs 41-43. There the Tribunal referred to the decision of Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013 in which Emmett J stated that the words 'reasonable cause to believe' are: "not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief."
In LY v Commissioner of Police, NSW Police [2004] NSWADT 115, the Tribunal found that this principle equally applies in the revocation of a firearms licence given that the Tribunal, and the Commissioner, must objectively be satisfied from established facts of the matters set out in paragraph 11(4)(a) of the Firearms Act.

[17]

Consideration may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances

The Tribunal's findings of fact indicate that there is no evidence before the Tribunal to indicate that there are instances where Mr Stanescu, Mrs Brandusoiu or Mr Brandusoiu have not exercised control over their firearms. There is speculation by the Respondent's witnesses that Mrs Brandusoiu may have allowed her husband and sons to use her firearms and that she would do so in the future. However such assertion or conjecture is insufficient to found "reasonable cause to believe". See LY v Commissioner of Police, NSW Police [2004] NSWADT 115.
Similarly there is a statement from the Respondent's witnesses that members of omgs may rely on associates to obtain access to firearms. There is no evidence of this having occurred in relation to Mr Stanescu, Mrs Brandusoiu or Mr Brandusoiu. Nor is there evidence before the Tribunal of a direct connection between Mr Stanescu and a member of an omg. The Tribunal is not satisfied that there is reasonable cause to believe that Mr Stanescu may not personally exercise continuous and responsible control over firearms because either Mr Tiberiu Brandusoiu, Mr Anthony Brandusoiu or Mrs Angela Brandusoiu or any other person may take that control.
The Tribunal finds that Mr Stanescu's licence could not have been revoked on this ground. not in the public interest for the licensee to continue to hold the licence
The Tribunal must decide whether it is "not in the public interest for Mr Stanescu to continue to hold a firearms licence." The Tribunal interprets the meaning of public interest in these circumstances in the light of the principles and objects set out in section 3 of the Act, in particular requiring a person to prove a genuine reason for possessing or using the firearms and the overriding need to ensure public safety.
The Tribunal understands that Mr Stanescu's reason for possessing firearms is for the purpose of recreational shooting and vermin control at the family's property near Mudgee.
There is no history of danger to public safety posed by Mr Stanescu's possession of firearms. Nor is there an imminent threat to public safety posed by Mr Stanescu's possession of firearms. In these circumstances the Tribunal does not consider that the public interest requires that Mr Stanescu's licence be revoked.
At the same time, the Respondent's witnesses expressed concerns about: • Anthony Brandusoiu's criminal conviction and his involvement with an omg; • Mr Tiberiu Brandusoiu's connections with omg members; and • the possibility of omgs using associates to obtain access to firearms.
The Tribunal considers that the maintenance of public confidence that the Firearms Act is being administered to protect public safety is a significant concern. In Constantin v Commissioner of Police NSW Police Force (GD) [2013] NSWADTAP 16 at [33] the Appeals Panel stated that: 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.
Section 19 of the Firearms Act sets out that conditions may be imposed on the issue of a licence. The provisions of section 19, as set out below, are significant because they specify certain conditions to be inherent in the issue of the licence - such as permitting inspection of storage arrangements and not allowing unlicensed persons to possess or use the licensed person's firearms.

[18]

19 Conditions of licence (1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose. (2) Without limiting subsection (1), each licence is subject to the following conditions: (a) the licensee must comply with the relevant safe keeping and storage requirements under this Act, (b) the licensee must not permit any other person to possess or use any firearm in the licensee's possession if that other person is not authorised to possess or use the firearm, (c) the licensee must, in accordance with such arrangements as are agreed on by the licensee and the Commissioner,………..at any reasonable time, permit inspection by a police officer (or such other person as may be prescribed by the regulations) of the licensee's facilities in respect of the storage and safe keeping of the firearms in the licensee's possession, (d) …… (e) …….. (3) A licence is subject to such other conditions as may be prescribed by the regulations.

The Tribunal considers that the imposition of conditions should occur in the context of the public interest, reflecting the principles and objectives of the Act. Public confidence in the licensing system is an aspect of that public interest.
It is already inherent in the conditions of any licence issued to any of the 3 Applicants that their firearms be stored safely and not accessed by any person who is not licensed, including Anthony Brandusoiu. Accordingly imposing a condition which limits storage away from Anthony Brandusoiu as suggested by all 3 Applicants, may be of little additional value.
The Tribunal considers that the public interest could be served by Mr Stanescu being licensed to possess firearms with the condition that they be used and stored only at the family property at Mudgee. This would have the effect of strictly limiting Mr Stanescu's authorised storage and use of firearms to recreational hunting and vermin control.
Of course, as observed Mr Stanescu's firearms licence would have expired in July 2014. It cannot be reinstated by this decision. The Tribunal's remarks about conditions may be relevant should Mr Stanescu again apply for a firearms licence.

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